The Volokh Conspiracy

Climatologist Mike Hulme, who worked at the University of East Anglia’s Climate Research Unit, gets the big picture in a WSJ Europe op-ed.  Some excerpts:

One thing the episode has made clear is that it has become difficult to disentangle political arguments about climate policies from scientific arguments about the evidence for man-made climate change and the confidence placed in predictions of future change. The quality of both political debate and scientific practice suffers as a consequence. . . .

If we build the foundations of our climate-change policies so confidently and so single-mindedly on scientific claims about what the future holds and what therefore “has to be done,” then science will inevitably become the field on which political battles are waged. The mantra becomes: Get the science right, reduce the scientific uncertainties, compel everyone to believe it. . . and we will have won. Not only is this an unrealistic view about how policy gets made, it also places much too great a burden on science, certainly on climate science with all of its struggles with complexity, contingency and uncertainty. . . .

The problem then with getting our relationship with science wrong is simple: We expect too much certainty, and hence clarity, about what should be done. Consequently, we fail to engage in honest and robust argument about our competing political visions and ethical values.

Science never writes closed textbooks. It does not offer us a holy scripture, infallible and complete. This is especially the case with the science of climate, a complex system of enormous scale, at every turn influenced by human contingencies. Yes, science has clearly revealed that humans are influencing global climate and will continue to do so, but we don’t know the full scale of the risks involved, nor how rapidly they will evolve, nor indeed—with clear insight—the relative roles of all the forcing agents involved at different scales. . . .

The central battlegrounds on which we need to fight out the policy implications of climate change concern matters of risk management, of valuation, and political ideology. We must move the locus of public argumentation here not because the science has somehow been “done” or “is settled”; science will never be either of these things, although it can offer powerful forms of knowledge not available in other ways. It is a false hope to expect science to dispel the fog of uncertainty so that it finally becomes clear exactly what the future holds and what role humans have in causing it.

There are also good comments from Roger Pielke Jr. and Roger Pielke Sr. on Dot Earth.

I recently completed a preview of Stop the Beach Renourishment v. Walton County, an important property rights case which was argued today, for the ABA Supreme Court Preview. It doesn’t seem to be up on their website yet, but I have posted it here. Below is a brief excerpt:

Under Florida’s Beach and Shore Preservation Act..., the state government establish “renourishment” projects to restore waterfront land that has become “critically eroded.” Once the projects are complete, the Act gives the state title to any newly dry land that has been cleared as a result of the project’s pushing back the waterline. This deprives waterfront property owners of their previously existing right to ownership of land up to the “mean high waterline” (MHWL). This is exactly what happened to the six waterfront property owners in Florida’s Walton County, whose holdings abutted a renourishment project established in the area. The property owners formed a group called Stop the Beach Renourishment, which is the petitioner in this case....

The Florida Supreme Court ruled against the property owners, holding that state law did not give them the right to
own all property up to the new MHWL created by the project.

The property owners now argue, in the U.S. Supreme Court, that the Florida court decision amounts to a “judicial taking” that deprived them of property rights through a sudden and unexpected revision of state law by the state judiciary.
Previous precedents hold that even a small “physical invasion” or occupation of a landowner’s property by legislation or executive action is a taking that requires compensation under the Fifth Amendment, which mandates that “just compensation” be paid whenever property is taken for “public use” .... However, the Supreme Court has never ruled on the issue of whether a deprivation of property that results from a state court decision reinterpreting state law might count as a taking. Thus, it is unclear whether the Takings Clause applies to so-called “judicial takings.” The petitioners argue that the Supreme Court should hold that judicial takings do exist, and that they require compensation under the Fifth Amendment. As the petitioners’ brief puts it “[i]f a state, through its legislative or executive branches, cannot violate theFifth Amendment by taking property without paying compensation, why should the judicial branch be allowed to do so?”

Ben Barros at PropertyProfblog has a thorough analysis of today’s oral argument. I generally agree with his conclusion that most of the justices agree with the idea that “judicial takings” exist, but that there probably isn’t a majority in favor of the claim that one occurred in this case. If the Court does conclude that judicial takings exist, the really important part of the decision will be the standards the majority sets up for determining when one has occurred, a point I discuss in greater detail in the last part of the ABA Preview article.

UPDATE: There is a small but unfortunate imprecision in my ABA preview article, which says that “Under Florida’s Beach and Shore Preservation Act..., the state government establish “renourishment” projects to restore waterfront land that has become “critically eroded.” In reality, the Act gives the state, in cooperation with local governments, the power to establish such renourishment projects, a power that is expected to be used. But the state is not actually compelled to establish projects in every waterfront area that has become “critically eroded.” It would have been more accurate and less confusing had I used “given the power” or “permitted” rather than “required.” This mistake doesn’t relate to the legal issues at stake in the case (whether the state was required to act as it did under the Act has no effect on the question of whether a taking occurred). But I regret my poor choice of words nonetheless.

UPDATE #2: A transcript of the oral argument is available here.

Tags: Stop the Beach Renourishment

I’ll probably be off-blog for a few days, as I have an oral argument before the Sixth Circuit in a Fourth Amendment case on Friday. I’ll chime in if something big happens, but probably not otherwise.

I just ran across Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., a very interesting case heard last month by the New Hampshire Supreme Court. Despite its name, Implode-Explode Heavy Industries is a Web site that publishes stories about housing finance. Someone leaked it a document that Mortgage Specialists filed with the New Hampshire regulatory authorities — a document that, under New Hampshire law, was apparently supposed to be kept confidential — and Implode-Explode published it. Mortgage Specialists sued, and the judge ordered it to take down the document, take down some statements posted by an anonymous commenter (which the judge found were defamatory), and to identify the source of the document and of the comments.

This raises pretty serious First Amendment questions, as well as other questions. The Supreme Court held in Bartnicki v. Vopper that a speaker is entitled to publish speech on matters of public concern even when the speech consisted of a third party’s illegal interception of a phone conversation (so long as the speaker isn’t in cahoots with the illegal intercepter). I think the same should apply to illegally leaked information. There are also potentially interesting questions regarding journalists’ qualified privilege not to reveal confidential sources (New Hampshire law expressly recognizes such a privilege). There’s more on the subject, including the briefs, here. The Citizens Media Law Project / Reporters Committee for Freedom of the Press amicus brief, filed by Harvard Law School’s Berkman Center for Internet & Society, strikes me as very good.

This is the case I blogged about a few months ago, in which a 17-year-old girl from a Muslim family ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. Now here’s the latest, from the AP:

[Bary and her family] must listen to each other’s views about religion if they are to reunite, a possibility that appears in jeopardy since the girl continues to refuse any contact with her parents or siblings, a caseworker says.

A case-management plan filed Monday said Rifqa Bary and her parents should hear what each has to say about Islam and Christianity as a step toward a possible reunification. But the plan, written by a government caseworker, also said “severe differences” exist between the 17-year-old girl and her parents over what led Rifqa to run away to Florida over the summer....

Bary’s parents, Mohamed and Aysha Bary, agree with their daughter being in foster care for the moment, but are concerned about her and would like a family relationship with her again, according to the plan....

Thanks to Religion Clause for the pointer.

Last night’s post Rethinking Blogging-As-Scholarship has triggered some interesting responses, and I wanted to provide links for those interested: Doug Berman, Steve Bainbridge, Ann Althouse.

In collective response to Doug, Steve, and Ann, I agree that the question isn’t whether blogging “is” scholarship, “can be” scholarship, or “has to be” scholarship. Rather, I think the question is the extent to which those who write scholarly blog posts are participating in a useful way (and are recognized as participating in a useful way) in the scholarly enterprise. My sense is that they often are, more than I anticipated in 2005. 

Here’s an interesting essay about the incomprehensibility of some academic writing. (Via Althouse) I can’t speak for the problem in academia generally, but I think the problem in legal scholarship is that complex and sophisticated words create the impression of complex and sophisticated arguments. Indeed, it’s much easier to create that impression through words. (I’m reminded of the reaction of my fellow first-year law students when we couldn’t understand what one of our professors was saying: “He’s so brilliant I can barely follow him!”) 

Scroll down a bit to see the live feed.

UPDATE: The state senate rejected the same-sex marriage bill, 38–24.  That has to be considered a surprisingly lopsided margin.  Eight Democrats joined all of the Republicans in voting against.  With the window on gay marriage closing in New Jersey for the next four years, at least, D.C. remains the only hope for a near-term SSM win.

This Friday the New Hampshire Superior Court will hear oral argument in the latest Dartmouth College alumni case (Brooks v. Dartmouth College).  This is a case that was brought by seven individual Dartmouth alumni after the Executive Committee of the Association of Alumni voted to settle the lawsuit brought by the previous Ex Com, notwithstanding the fact the Court (as I predicted it likely would) denied Dartmouth’s motion to dismiss.  The Court’s excellent opinion in that case is available here.  The pleadings in the current case are here.

The current case, like the previous case, arises from the 1891 Agreement between the Dartmouth Trustees and the alumni of the College, acting through the Association of Alumni, that gave the alumni the right to elect half of the non-ex officio members of the Board of Trustees.  At the time, the Board was comprised of 12 members, of which 2 served ex officio (the Governor of New Hampshire and the Dartmouth president).  Upon striking the agreement, over the next two years, 5 of the appointed trustees resigned and were replaced with elected trustees.  Over time, the size of the board expanded, and by the time I was elected a trustee in 2005 there were 8 elected Alumni Trustees, 8 appointed Charter Trustees, and the Governor and College president as ex officio members.  As I have discussed in detail elsewhere, the 1891 Agreement was the culmination of decades of negotiations between the trustees and college administration on one hand and the alumni on the other.

In 2007 after a string of petition trustees were elected to the Board, a majority of trustees voted to impose a board-packing plan, which added 8 new appointed seats to the board, making 16 appointed and 8 elected trustees.  I won’t rehash that here, except to point interested readers to my earlier discussions as well as the Court’s excellent opinion which held that the plaintiffs in that case stated valid claims both on contract and promissory estoppel theories.  Importantly, the Court also held that the Association of Alumni had standing to sue and capacity to contract in that case, as well as to provide valid consideration, such as administering the Alumni Trustee elections.  For purposes of analysis on the current summary judgment motion, I am going to take it as given that the underlying contract claim is valid.

In Spring 2008, however, the alumni leaders who brought the suit had to stand for reelection and were voted out of office.  The winning slate of alumni loyal to the trustees and administration dismissed the suit.  Their campaign position had been that the alumni should have “negotiated” more with the trustees before bringing suit.  As the current plaintiffs note in their most recent brief, it thus came as quite a surprise when the suit was dismissed with prejudice, with the deliberate intent to try to foreclose a future lawsuit if negotiations broke down (it doesn’t actually work, as will be discussed below).  After all I’ve seen over the past few years, I thought that I was beyond being shocked by the sort of behavior described in the plaintiffs’ brief, but I confess that this surprised even me.  The College has not contested any of the claims in the briefs of the current plaintiffs with respect to the collusive behavior of the AoA leadership in settling the prior case.  Read the first 10 pages of so of the plaintiffs’ brief if you want to get a flavor of what happened.

I note in passing that almost two years have now gone by since the loyalist slate was elected.  Since that time, the trustees have never for a single moment ever suggested that they intend to back off from the board-packing plan, either publicly or privately.  It was, to put the matter gently, an unorthodox negotiating tactic for the newly-elected members of the AoA Ex Comm to immediately surrender its only bargaining chip (the right to sue to enforce parity).  This was a curious negotiating strategy, especially in light of the fact that the president of the Association of Alumni (John Mathias) is a lawyer.  The trustees, for their part, simply treated the matter as closed.  I’m afraid that to the extent that the current leaders of the AoA continue to state that the trustees are open to negotiation on this point, either they are exceedingly gullible or they think that the alumni are exceedingly gullible to believe them.  To their credit, the trustees have never even suggested for a moment that they are open to reconsideration, so the confusion is solely on the side of the alumni association leaders.

But last year a group of 7 alumni brought a new lawsuit as individual alumni to enforce the 1891 Agreement.  They claim that they were direct beneficiaries and third-party beneficiaries.  As I see the case, the core claim is that they are third-party beneficiaries of the 1891 Agreement and have the right to enforce the contractual promise of parity in the 1891 Agreement.  Dartmouth has filed a motion for summary judgment.  Reading all of the briefs (including one that I submitted focusing on the public policy questions raised by the case), if the judge applies the law correctly to the case, the plaintiffs should prevail on the summary judgment motion (and eventually will prevail in the case).  I’ve been teaching Contracts now for over a decade and this is the strongest third-party beneficiary case that I’ve ever seen.  In talking to one of my colleagues who also teaches Contracts, he accurately referred to this case as having “casebook quality facts” in terms of illustrating the doctrine of third-party beneficiaries.  Moreover, given the high quality of Judge Vaughan’s opinion in the first case, he is likely going to get this right.

Once understood, the plaintiffs’ case is simple and compelling.  The key to understanding why the 7 individual alumni plaintiffs are valid third-party beneficiaries is that they are organized for these purposes through the Association of Alumni, which is an unincorporated association.  In the first case, this legal status as an unincorporated association meant that the plaintiffs (which were the elected leaders of the AoA in that case) had to show that they had capacity to contract and to enforce the contract.  The Court held, correctly, that they did.  And the AoA itself provided consideration when it agreed, for example, to administer the elections of Alumni Trustees.

From this standpoint, the current case is actually much easier on this point.  It is precisely because the AoA is an unincorporated association that the 7 current plaintiffs can enforce the contract.  Because it is not a corporate entity, the AoA is fundamentally a collection of its individual members.  It exists on behalf of and to further the interests of its individual members not itself in a corporate capacity.  Thus, the entire purpose of the 1891 Agreement was to benefit the individual members of the AoA, not to benefit the AoA itself. It is each individual alumnus who is the beneficiary of the contract by given the right to vote for Alumni Trustees to comprise half of the Board.  The AoA doesn’t benefit–each alumnus benefits by having the right to vote.  The AoA is simply an instrumentality that is chosen for the alumni to administer their substantive rights under the agreement.  The AoA itself has no obvious rights as a corporate entity independent of the aggregate individual rights that comprise the Association.

Once the nature of the AoA as an unincorporated entity is understood, the case is an easy one to show that there is are viable third-party beneficiary claims that easily survive summary judgment.

There are two types of third-party beneficiaries: intended beneficiaries and beneficiaries by estoppel.  Dartmouth’s Motion for Summary Judgment fails on both counts in the current case.

Intended beneficiary: As noted above, the purpose of the 1891 Agreement was to provide a benefit to individual Dartmouth alumni by giving them the right to vote for half of the non-ex officio Trustees.  It turns out that this had a lot of other benefits (as I discuss in my brief), but that’s the essence of the deal.  As noted, this flows directly from the fact that the AoA is an unincorporated association–the whole contract makes sense when understood as being designed to benefit all of the individual alumni as intended beneficiaries (either directly or as third-party beneficiaries) rather than the AoA.  This is what my colleague had in mind in referring to this as casebook quality facts–if one wanted to design a contract with an intended third-party beneficiary, this is what it would look like.  (I note that for similar reasons the plaintiffs might also be direct beneficiaries, but I don’t think it is necessary to discuss that given how compelling the intended beneficiary claim is).

Beneficiary by Estoppel: The plaintiffs also argue that they are beneficiaries by estoppel.  This is just promissory estoppel where the reasonable reliance is by a third party.  The plaintiffs submitted an Affidavit by Dr. John Steel, a former petition trustee, who states that he relied on the 1891 Agreement in a number of ways over the years.  At the Summary Judgment stage the Court takes Steel’s claims as true for purposes of establishing whether there a contested issue of material fact.  Steel’s Affidavit certainly states reliance and any claim that he did not in fact rely would have to be an issue of credibility for trial that can’t be decided on the pleadings.  Moreover, given that the underlying Agreement was a valid contract and Dartmouth through its actions repeatedly ratified and reaffirmed the promise of parity in the 1891 Agreement, I don’t see how it could be argued that Steel’s as a matter of law Steel’s reliance was not reasonable.

So on the core third-party beneficiary claims in the case, the plaintiffs should win.  Indeed, this is pretty much hornbook law in this case.  The purpose of the contract was to benefit alumni as a class of third-party beneficiaries.  Moreover, at least one plaintiff has stated a claim as being a beneficiary by estoppel based on reasonable reliance on the contract, a question that cannot be resolved by summary judgment.

There are two other issues in the case that are quite straightforward and that I think require little discussion.

Res judicata: The first is the claim that this case is barred by res judicata from the first case being dismissed with prejudice.  The plaintiffs’ brief dispatches of this pretty easily.  First, the facts provided by the plaintiffs show that the first settled through extreme collusion between the plaintiffs and defendants (again, you have to read the brief to be able to believe this).  After the loyalist slate was elected, they entered into secret negotiations to settle the case.  The defendants even paid for the plaintiffs new lawyers to settle the case.  David Spalding, a Vice-President of Dartmouth, was also a participant on the plaintiffs’ side as the Secretary of the AoA.  Again, it is well-established law that where the plaintiff and defendant collude in a settlement, then they are not adverse parties for purposes of a judgment on the merits, which is what is necessary for res judicata to apply.  Thus, even if res judicata would be the basic rule, there is an exception here.

Second, there has to be an identity of parties.  Dartmouth claims that both cases were “controlled” by the Hanover Institute, a 501(c)(3) organization.  This doesn’t work for a couple of reasons.  First, when the loyalist slate decided to settle the case, quite obviously they were not operating under the control of the Hanover Institute.  Second, the Hanover Institute was not a plaintiff in either case and simply raised money for the lawsuits.  Which means that the plaintiffs could simply get a new “banker” and res judicata wouldn’t apply, which shows that the Hanover Institute isn’t the real party in interest, but in fact it is the individual plaintiffs.

So Dartmouth’s res judicata arguments are weak.

Finally, there is the question as to whether these plaintiffs have standing to sue as third-party beneficiaries.  Of course they do.  It is again hornbook law that if a party is a third-party beneficiary then that party has standing to sue to enforce its rights.  Where there is a third-party beneficiary, the standard rule is that duty can run to either the promisee or the third-paty beneficiary and either the promisee or the third-party has standing to sue to enforce the promise (Restatement (2d) section 305).  This is especially clear where the remedy being sought is specific performance, as is the case here (Restatement (2d) section 307).  So even if we assume for the sake of argument that the AoA was the promisee under the 1891 Agreement (as suggested above, a case could be made that in fact the individual alumni were actually the promisees and not third-party beneficiaries), individual alumni were quite obviously the intended beneficiaries of the agreement and have standing to sue.  As stated in the case (Hamill v. Maryland Casualty) that is in the casebook from which I teach, “It has been said that so long as the contract necessarily and directly benefits the third party, he may enforce it.”

But even if the individual alumni were considered for some reason to be incidental beneficiaries rather than intended beneficiaries they would probably still have standing to sue.  There is a longstanding rule that permits even incidental beneficiaries to sue if there is an inability of the promisee to enforce the right (such as because of death or disability) or an “outright refusal” of the promisee to enforce the rights.  This traditionally has arisen in the context of child support obligations where the right runs to the custodial parent, not to the children who are incidental beneficiaries.  But where the parent is unable or unwilling to enforce the child support agreement, the children have been given standing to do so.  The reason for the rule, and the exception, are both pretty obvious.  The reason for the rule is that the parent is assumed to have the child’s best interest at heart and the parent has her own incentive to enforce the contract.  Thus it is unnecessary to give the child the right to enforce the claim directly, which could give rise to redundant claims.  But the justification for the exception is obvious as well–where the parent is essentially a disloyal agent who is not acting in the best interests of the child, then the child has the right to sue to enforce the obligation.  That is essentially the case here with the unequivocal refusal of the leaders of the Association of Alumni to enforce the rights of the alumni under the 1891 Agreement.

In short, if the AoA’s leaders want to get rid of parity then they have to do it through an amendment to the AoA’s constitution.  A poll taken around the time of the board-packing plan found that 90%-plus of alumni supported the continuance of parity.  The AoA’s leaders can’t do it through a stealth, back-door process of engaging in a collusive bargain with a majority of the trustees to simply refuse to enforce the rights embodied in the 1891 Agreement.

In short, the Court in this case should deny Dartmouth’s summary judgment motion.  In fact, I think the issues in the current case may be even easier than the issues in the last case (which required a pretty sophisticated understanding of the nature of consideration and promissory estoppel).  Because of the AoA’s status as an unincorporated association, the most natural understanding of the 1891 Agreement was to make individual alumni the direct and/or third-party beneficiaries of the 1891 Agreement of giving them the right to elect half of Dartmouth’s Trustees.  And, if so, they plainly have the right to sue to enforce it.  Given that Judge Vaughan got the last case right, I expect he’ll probably get this case right too.

At that point President Kim and the majority of the trustees are going to have to figure out how much more of the alumni’s donated money they are going to continue to squander on their project to disenfranchise the alumni–and I would hope at some point the alumni would start asking questions about whether this is why they donate to the College.

Let me stress in closing that this is just my personal analysis of the case based on my years teaching and reading about Contracts.  I haven’t consulted with the lawyers for the plaintiffs.  These views are mine alone and should not be attributed to the lawyers for the plaintiffs or to anyone else.  Finally, this is obviously a blog post and not a brief so I haven’t provided chapter and verse for every argument here nor have I taken care to make sure that my language might be as precise as in a brief.  But I’ve been teaching Contracts for a long time and this is pretty basic stuff.

Last night, the University of East Anglia announced that Phil Jones, a central figure in the e-mails and other documents disclosed last month, would temporarily step aside as head of the Climate Research Unit pending an independent review of the matter.  Penn State University has also announced an investigation regarding the conduct of Michael Mann, a PSU climate scientist who also features prominently in the disclosed correspondence.  More from the BBC and NYT.

On the commentary front, Reason’s Ron Bailey thinks the affair is a “hot mess.”

Researchers at the Climatic Research Unit (CRU) at the University of East Anglia and their colleagues around the globe may have fiddled with historical climate data and possibly the peer review process to ensure that publicized temperature trends fit the narrative of man-made global warming—then they emailed each other about it. Now those emails and other documents have been splashed all over the Web. Revelations contained in the leaked emails are roiling the scientific community and the researchers may be in pretty serious trouble. But the real tragedy of the Climategate scandal is that a lack of confidence in climate data will seriously impair mankind’s ability to assess and react properly to a potentially huge problem.

I think his analysis is spot on, and I recommend reading the whole thing.

In other commentary, Megan McArdle has “become considerably more concerned” as she’s dug deeper into what the disclosed documents reveal, and Glenn Reynolds thinks it’s worth reminding ourselves how scientific inquiry is supposed to proceed.  Bret Stephens also recommends that we “follow the money” in order to understand some climate researchers’ motivations.  After all, if it’s relevant that a given climate “skeptic” received money from an energy company, shouldn’t we care that a climate researcher’s grants increased six-fold as global warming fears rose?  I think we should seek to evaluate arguments and analyses independently of the identities and interests of the authors, but what’s sauce for the goose is sauce for the gander.

Finally, in a little side note — both amusing and sad — could the claim that Himalayan glaciers will disappear by 2035 been the result of a typo? Madhav Khandekar thinks so. It appears the real scientific estimate was for 2350.

Read all about it here: Fear of Falling: The Effects of U.S. News & World Report Rankings on U.S. Law Schools, by Michael Sauder and Wendy Espeland. Via links from Brian Leiter.

Most lawyers know that appellate courts usually review lower courts’ legal decisions de novo, while overturning factfinding and trail management decisions only if the lower court was guilty of “abuse of discretion.” In other words, if the appellate judges believe the lower court got the law wrong, they will reverse its decision; but they will only reverse a finding of fact if the lower court made an especially egregious or obvious mistake. Instant replay in the NFL and now major league baseball is similar to appellate review of factual decisions: by NFL rules, the referee’s call on the field can only be reversed if the replay provides “conclusive” or “indisputable” evidence that the ref blew it. However, law professor Joseph Blocher makes a strong argument that instant replay should instead follow the model of de novo review:

Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo? . . .

Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it’ll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues . . . Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don’t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay? 

One possible answer to Blocher’s question is that allowing de novo review on instant replay challenges would lead coaches to challenge more calls, which in turn would delay games unduly. However, the NFL has already addressed this problem by giving each team only two instant replay challenges per game. Even if more coaches will now use both of their challenges, the added loss of time is unlikely to be great. Moreover, any harm caused by loss of time must be weighed against the benefits of getting more critical calls right (presumably, rational coaches will save their challenges for dubious calls that are especially important). 

Some people think that legal analysis doesn’t shed light on any of the really important issues in life. This post and Blocher’s will surely put that invidious stereotype to rest.

Some commenters and others reacting to my post on nationalism raise the issue of its relationship to patriotism. Even if nationalism is an evil, perhaps patriotism can still be good. Patriotism is certainly distinguishable from nationalism, as I defined that term in my previous post: “loyalty to one’s own nation-state based on ties of language, culture, or ethnicity.” It is also differs from nationalism defined as a sense of moral obligation to members of one’s ethnic or racial group across national boundaries. In common usage, patriotism generally means loyalty to one’s government and/or its ideals regardless of ethnic or racial identity. For example, one can be a patriotic American even if you are a member of an ethnic minority, English is not your native language, you dislike mainstream American popular culture, and so on. 

To the extent that patriotism simply means supporting your country when its government promotes good ideals and policies, I’m all in favor of it. Indeed, I place high value on the American political system because, despite serious flaws, it provides a great deal of freedom and happiness to large numbers of people. I also admire it because, unlike most other nations, it is not primarily based on ties of race, language, or ethnicity.

At the same time, I am opposed to patriotism in the sense of valuing a nation or government for its own sake. Unlike senior conspirator Eugene Volokh, I don’t believe that we should “love” our country in the same unconditional way that we love a spouse or family member. That kind of patriotism too readily leads people to support governments that are oppressive and unjust. More fundamentally, it loses sight of the principle that governments and nations are means, not ends in and of themselves. The Founding Fathers, I think, got it right when they wrote in the Preamble to the Constitution that they were creating a new government in order to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The Constitution and the United States generally are not ends in themselves, but means to the objectives laid out in the Preamble. The corollary is that the government deserves patriotic loyalty only in so far as it promotes those objectives better than the available alternatives. If I thought that freedom, happiness and other important values could be better achieved by replacing the United States with some other political entity or by breaking it up through secession, I would not support maintaining the status quo out of patriotism. To do so would be to exalt a mere means above the ends it is supposed to serve. 

Some, like Glenn “Instapundit” Reynolds in his response to my earlier post, argue that we need “irrational affection” for government in order for it to work well. I am skeptical. A population that values its government for purely instrumental reasons can still give it the necessary support and defend it against external enemies. At the same time, it is less likely to tolerate abuses of government power on the grounds that we have a patriotic duty to support the state for its own sake. But even if some degree of “irrational affection” for government is necessary, it should still be regarded as a means to an end, not a value in itself. 

Ultimately, I think the right attitude towards patriotism was best captured by Milton Friedman in his 1962 book Capitalism and Freedom:

In a much quoted passage in his inaugural address, President Kennedy said, “Ask not what your country can do for you—ask what you can do for your country....” Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic “what your country can do for you” implies that the government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, “what you can do for your country” implies that the government is the master or the deity, the citizen, the servant or the votary. To the free man, the country is the collection of individuals who compose it, not something over and above them... [H]e regards government as a means, an instrumentality, neither a grantor of favors and gifts, nor a master or god to be blindly worshipped and served.

The free man will ask neither what his country can do for him nor what he can do for his country. He will ask rather “What can I and my compatriots do through government” to . . . advance our several goals and purposes, and above all, to protect our freedom? And he will accompany this question with another: How can we keep the government we create from becoming a Frankenstein that will destroy the very freedom we establish it to protect?

UPDATE: Glenn Reynolds (AKA Instapundit) responds to this post here:

I BELIEVE THAT ILYA SOMIN MISTAKES MY POINT: “Some, like Glenn ‘Instapundit’ Reynolds in his response to my earlier post, argue that we need ‘irrational affection’ for government in order for it to work well. I am skeptical. A population that values its government for purely instrumental reasons can still give it the necessary support and defend it against external enemies.”

I don’t think this quite responds to my point. I was suggesting that, in an evolutionary sense, a state whose populace feels irrational loyalty is more likely to prevail against states whose populaces are purely rational. This doesn’t strike me as much of a leap. A parent who values a child for purely instrumental reasons can still give it the necessary support, but I suspect that evolution has favored those who feel irrational loyalty to their kinfolks, too.

Furthermore, a state whose populace feels irrational loyalty probably has greater threat-value when dealing with states whose populace is only rationally loyal. This is not a defense of nationalism on any sort of moral grounds, of course — merely a suggestion that efforts to get rid of it will be difficult. This is particularly true if, as seems likely to me, evolution has favored irrational group-loyalty (for basically the same reasons) over periods extending long before the development of the state, so that such traits are largely hardwired.

I thank Glenn for the clarification. There is, I think, less disagreement between us than I at first thought. I certainly agree that “irrational loyalty” can give a state an advantage in some conflicts, and that nationalism will be difficult to root out. At the same time, I’m not convinced that that advantage is necessarily decisive in a conflict. Indeed, it could be outweighed by the disadvantages created by that very same irrationality. For example, German and Japanese troops fought very hard in World War II, in part because of attachment to irrational nationalistic ideology. But that same ideology also led their leaders to grossly underestimate their enemies and ultimately caused their defeat. Also, relatively non-nationalistic states that limit the power of their governments as a result are likely to be more economically productive and therefore have more resources to commit to any conflict. This factor underlies a large part of America’s geopolitical success over the last century. 

It’s certainly possible that evolution favored “irrational group loyalty.” But such loyalties need not be directed at a state or a nation. I think it is less dangerous if they are directed towards smaller groups, such as friends and family, or towards adherents of universal principles of freedom and justice. Granted, some universalistic ideologies, such as communism, are even worse than nationalism. But others are vastly better. In any event, there is nothing hardwired or inevitable about nationalistic commitments as such, as indicated by the fact that most people were not nationalistic for the vast majority of human history. I’m not sure how much of what I say in the update Glenn would disagree with. It’s possible that the difference between our views is actually very minor.

Tags: Patriotism

I blogged about this a month ago, when Muhammad: The “Banned Images” — which includes the statement as an afterword — was released. But I thought it was worth reposting, especially since it has acquired a longer list of organizational signatories:

A Statement of Principle

A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances cancelled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Mohammed from Jytte Klausen’s book, The Cartoons that Shook the World.

Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie’s Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally’s play, Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.

There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film Submission, and the threats against Ayaan Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh’s murder, Behzti, a play written by a British Sikh playwright, was cancelled days after violence erupted among protesters in Birmingham, England on opening night.

In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, “The face of Mohammed,” which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitting free speech against “cultural sensitivity.”

For all the prominence of religion in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor’s scheduled speech at Hamilton College in Clinton, NY was cancelled in response to threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers citing security concerns.

The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London’s Whitechapel gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones’ The Jewel of Medina because “it could incite acts of violence.” The suppression of images in Jytte Klausen’s book is the latest, but not likely to be the last in the series of such incidents.

Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.

A Call to Action

The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence “somewhere in the world,” it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.

The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.

To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.

Joan E. Bertin, Executive Director, National Coalition Against Censorship
Cary Nelson, President, American Association of University Professors

Endorsed by:
American Association of University Professors
American Civil Liberties Union
American Federation of Teachers
American Society of Journalists and Authors
Center for Democracy and Technology
Center for Inquiry
College Art Association
First Amendment Lawyers Association
First Amendment Project
Foundation for Individual Rights in Education
International Publishers Association
Modern Language Association
National Coalition Against Censorship
National Council of Teachers of English
National Education Association
People For the American Way Foundation

(List in formation. If your organization is interested in endorsing this statement, please contact Cary Nelson)

The above signatories agree with the ideas expressed in the Statement of Principle, which may be freely reprinted with a disclaimer stating that the signers were not involved in the creation of any other documents in which it appears and have no responsibility for the contents of such documents.

I like to think that our readers are well-educated, and like to sleep with the likewise well-educated; so I hope this pleases them: Richard D. Hayes, Risk Factors for Female Sexual Dysfunction in the General Population, 5 J. Sex. Med. 1681 (2008), reports that Australian women with a college education were less likely to suffer from “low genital arousal” than women with less education. The result was statistically significant, and the study controlled for age, depression, employment, and various other factors. OK, the response rate wasn’t great, and there were who knows how many possible confounding factors. But it makes me happy, and that’s what counts.

Note to Law Enforcement Personnel: If you arrest a suspect for bank robbery, and you find the stick-up note in his pocket, don’t put the note on the car near the suspect. The note might not be there when you’re done the search incident to arrest:

Background here, via Josh Blackman. Oh, and don’t miss the suspect’s facial expression at the :33 mark.

Back in 2005 and 2006, a lot of law-professor bloggers wondered whether blog posts could and would serve as ways to advance scholarly ideas about law. At the time, I was very skeptical:

Can blogs help advance legal scholarship? I think the answer is that they can, but that the format isn’t well-suited for the job. The key problem is the tyranny of RCO, reverse chronological order. RCO means that blog visitors see the most recently posted material at the top of the page. A visitor may see one or two posts on the screen, but needs to scroll down to see earlier posts. This isn’t the only way to visit a blog. Readers can follow direct links to earlier materials, and can search through archives (or query search engines) for particular materials. But this is relatively rare. For the most part, blogs direct readers to the most recent post first. 

RCO helps ensure that the difference between blog posts and law review articles is something like the difference between short term and long term memory. Blog posts tend to be about what happened today, yesterday, maybe last week. They are quick reactions to current events and current issues, and for the most part are forgotten a few days after they have been posted. In a sense, blog posts end up as an online equivalent to faculty lounge conversation: They tend to be quick thoughts, comments, and perspective that offer an interesting tidbit about a broader question. Posts might plan the seed of a future article, or stimulate readers to think of old questions in new ways. But the time horizon is short. Blog posts may support and influence traditional scholarship, just as short term memory can work its way into long term memory. But the two are usually quite distinct. 

Fast forward to the present, and I now think my old self was wrong. Or at least a bit off. I now think blogging actually does provide an effective way to present new scholarly ideas in many cases. In this post, I want to explain why my view has changed.

The main reason my view has changed is that I think the legal academic culture has changed. In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship. Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles. Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction. Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago. That convergence encourages more scholarly blogging and recognizes its value.

Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change. Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database. (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.) In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20–30% of issues schedule for a 2009 publication not yet out and on Westlaw. Still, the phrases have appeared 108 times so far in the JLR database. That’s a lot of cites. Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.

In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred. Blogs have become a significant part of the scholarly conversation. I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue. But I think the trend is a real one. 

Advances in the technology widely used by legal bloggers have facilitated the changes. My skeptical view from 2005-06 (see excerpt above) was based on the blogging technology generally in use at the time. Back in 2005, comment threads were still pretty new. We didn’t start experimenting with them here until late 2004. At the time, it was also very hard to link posts or hide the bulk of a long comment behind a hyperlink. Also, my recollection is that Google did not index blogs in the early days of legal blogging. Further, it was odd at the time, if not unheard of, to use google or any other search engine to do legal research. 

Over time, all of that has changed. Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text. All of these changes have helped create an environment much more conducive to scholarly blogging than existed in 2005-06.

I much appreciate all the responses to my earlier question about data sharing in the climate change debate. The quantity and the detail of the responses was dauntingly high, and I’ve just managed to get through them all. I thought therefore that I’d post a bit more about the subject.

1. It looks like some of the data sources — apparently government-run meteorological services — did indeed demand (whether contractually or as an informal understanding) that the data they gave to CRU not be shared further. Apparently this is because the services sell the data commercially. But to the extent that CRU’s continuing refusal to share the data stemmed from those agencies’ refusal, this just means the problem is broader than I had thought.

The countries in which these meteorological services are located will have to, in the aggregate, spend trillions of dollars under various climate-change-fighting proposals. If I’m right that data sharing is an important part of making science accurate, those countries have much to gain from such sharing. 

Even if the global warming claims are right in general, it’s nearly certain that they’re not right in all particulars; that’s not a condemnation of global warming theory, but just a reflection of what happens with nearly all emerging scientific theories. The particulars might well matter in deciding on the best way to combat global warming. An error in the models might yield errors in the recommendations; public access is more likely to uncover those errors.

Of course, if the global warming claims are wrong in important respects, the countries involved have even more to gain from their being proven wrong. And if they are largely right, the countries have much to gain from public confidence in the claims’ correctness, confidence that I think should be reinforced by data sharing and undermined by data concealment.

So if indeed the meteorological services are refusing to have data shared because they sell the data, that is astoundingly penny-wise and pound-foolish. Perhaps CRU might justify its actions by saying that the services conveyed the data under a confidentiality understanding. For that we’d need to know more details about the understandings, and also the details of English Freedom of Information law that may or may not preempt such understandings. But where’s the adequate justification for the underlying continuing insistence by government-run meteorological services that their data remain confidential?

2. Some commenters have pointed out that in many research projects, the researchers try to keep their laboriously gathered datasets private for some time in order to milk the data for more papers, without competition by others. I’m not sure whether this is on balance beneficial to science, or to what degree it is tolerated in various scientific communities.

But even if it makes sense for some researchers to trade off verifiability and credibility for extra lead time to produce novel work — and for some disciplines to trade off the benefits of public access for the benefits of extra incentives to gather data — can that possibly apply here? This isn’t just cutting-edge science in which scientists can say, “OK, if you don’t believe my first article, fine; that’s a tradeoff I’m willing to make in order to get more publications on my resume, and then in several years I’ll release the data and dispel your doubts.”

This is research that people are claiming should form the basis of multi-trillion-dollar regulations and expenditures — that should lead to compulsory restructurings of vast segments of society — and the sooner the better. The need for accuracy is so great here that I don’t think the “I want more lead time to write more papers without competition” argument can apply (nor do I think it’s even made by CRU).

3. Some commenters have argued that a great deal of climate data is indeed available from other sources; and that’s good. But as I understand it, the CRU didn’t get its standing by just being duplicative of other data gatherers. The CRU dataset has apparently formed the basis of a great deal of work, and even if it has been seen by many as entirely consistent with the other datasets, it remains important.

And to verify the CRU’s work it’s necessary to have the precise data on which the CRU relied, and not just other data from other sources that has its own limitations and characteristics. Small differences in coverage (temporal and spatial), as well as differences I the methods through which the data was gathered, can potentially make substantial differences in result. And absence of the precise data, with its precise temporal and spatial boundaries, makes it impossible to verify the particular results that CRU reports. If you are so important, and your dataset is so important, it’s important that other scientists who want to check your work have access to your dataset and not just to other datasets.

4. Finally, one commenter asks whether “this work[s] both ways,” and whether “anti-AGW partisans” should share their data as well. Obviously so, and I take it that if someone criticized conventional scientific wisdom (which global warming has, descriptively, become) and then refused to share the underlying data, he’d have zero chance of persuading anyone, and rightly so. The question is how much extra slack should be cut to the researchers whose work forms the conventional scientific wisdom. Again, where many trillions of dollars are at stake, it seems to me the answer should be “not much.”

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19  Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about constitutional language and history.

Part II investigates Kozuskanich’s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the  Quaker’s protests against being forced to “bear arms” in the  militia demonstrate that “bear arms” is exclusively a military term; therefore the “right to keep and bear arms” is only about owning and carrying militia weapons.

But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich’s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists’ arms.

Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.

Tags: Pennsylvania constitution

Rising star fantasy writer Lev Grossman gives us his picks for the six greatest fantasy novels of all time [HT: Tyler Cowen]:

– The Lion, the Witch and the Wardrobe by C.S. Lewis
– The Once and Future King by T.H. White
– Fritz Leiber’s Fafhrd and the Gray Mouser stories
– The Lord of the Rings by J.R.R. Tolkien
– Jonathan Strange and Mr. Norrell by Susanna Clarke
– Magic for Beginners by Kelly Link

Many of these are worthy and unsurprising choices. I question the selection of Jonathan Strange and Mr. Norrell, however. I tried to read it several years ago and couldn’t get through it despite the fact that I am a huge fantasy fan and generally like long books. Either my reaction was highly idiosyncratic or Clarke’s book is at least somewhat boring, and therefore not worthy of inclusion in this distinguished list. The Fafhrd and Gray Mouser series is an important landmark in the field, but not actually a novel (it’s a set of loosely connected short stories with the same central characters, much like the Sherlock Holmes series). 

Finally, I have to admit that I haven’t read Magic for Beginners. It, like Fritz Leiber’s work, seems to be a collection of short stories. Is it as great as Grossman claims? 

For March 2, at 10 a.m.

In other McDonald news, Declan McCullagh of CBS News has an article discussing some of the McDonald amicus briefs, including mine.

And in my continuing program of calling attention to interesting briefs in the McDonald case, here’s a link to the brief of Safari Club International. It’s a solid example of a particularly helpful type of amicus brief, in which a group shares its practical expertise with the Court, explaining how the Court’s decision may impact a particular activity. As the SCI brief details, local gun bans such as Chicago’s can significantly interfere with hunting. For example, nationwide, over a million people use handguns for hunting, yet Chicago residents are forbidden to own these hunting arms. The result is harmful not only to humans, but to wildlife; the brief explains the tremendous role that regulated hunting plays in wildlife conservation and management.

The petition, asking the court to review the decision in McCullen v. Coakley, is here; Stuart Buck has more on the subject, plus his opinions on the merits.

Stanley Fish has a thoughtful post on these and related issues.

I agree with Fish that “affirmative action”  for conservatives or some such would be an inappropriate response to the gross ideological imbalance in American academia.  (On the other had, a little, okay, a lot, more self-consciousness by left academics regarding whether they are improperly implicitly or explicitly smuggling ideological considerations into hiring–I was once grilled by telephone, after the official interviews, by a senior professor regarding my views on affirmative action when being considered for a lateral chair, with the explicit premise that if I didn’t pass the quiz, the professor would vote against me and rally her allies against me–would be welcome).

And for reasons Fish discusses, even a completely ideologically neutral hiring process would likely perpetuate the one-sidedness of the American academy.  I think this is a problem, not because the conservative side is somehow “entitled” to “fair” representation within the academy, but because liberal students are currently not being well-served educationally by their professors.

In particular, studies show that approximately 40% of American adults consider themselves to be conservatives.  I would therefore posit that a well-educated American college graduate should have some idea of what mainstream conservatives think, and why they think it.

Yet the late controversy over Rush Limbaugh and the Rams suggests that many well-educated liberals don’t know the first thing about American conservatism.  In particular, I found it extremely troubling that so many columnists, bloggers, political figures, and so on, were gullible/ignorant enough to believe that a mainstream figure like Limbaugh publicly praised the assassination of MLK, or stated that “slavery had its merits,” without any apparent controversy at the times these alleged remarks were made, with no diminishing of his 20 million strong audience, and with no harm to his political standing among conservatives and within GOP circles.

I’m a libertarian, not a conservative, and I’ve probably listened to a total of less then ten hours of Limbaugh in my life, but it was obvious to me that these alleged statements were phony.  I would have hoped that they would have at least raised eyebrows among liberal commentators, such that they would have demanded a firm source before attributing them to Limbaugh.  But no, apparently a significant fraction of well-educated American liberals, the products of our best universities, thought it unexceptional, indeed, completely congruous, that a mainstream conservative figure would praise slavery and James Earl Ray.

I’m not sure what the solution to this problem is, but I do think it’s clear that many product liberal-leaning institutions, starting with the universities, are sufficiently engaged in groupthink that they lack the most basic curiosity about or knowledge of what their ideological adversaries believe, and are instead inclined to dismiss them entirely as mere evil reactionaries.  [And they are sufficiently isolated from contact with conservatives that they don’t have personal experiences to suggest otherwise; it’s easy enough, for example, to go to a top university, on to a major journalism school, and from there to the New York Times or MSNBC or The Huffington Post without every having had a serious  intellectual discussion with a conservative colleague or mentor.]  That’s not good for the universities, it’s not good for liberals themselves (isn’t easier to defeat one’s enemies if one first understands them?), and it’s not good for America.

UPDATE: In response to some of the comments, I’m hardly suggesting that liberal students be required to study Rush Limbaugh.  What I am suggesting is that if the elite academy wasn’t so ideologically one-sided, both with regard to the faculty and the student body, graduates of these universities would have more contact with conservative ideas and conservative individuals (assumedly some thoughtful ones) and would therefore be less likely to adopt an uninformed, stereotypical view of conservatives and conservatism.  Undoubtedly, there are some self-identified conservatives who fit liberal stereotypes, just as there are some self-identified liberals who fit conservative stereotypes. But a conservative would be hard-pressed to, say, attend an Ivy League school and not be confronted with people and ideas that defy these stereotypes.  By contrast, I think that many liberals who arrive at such a school with stereotypes of conservative people and ideas will not only not find themselves challenged, but will find those stereotypes reinforced by the general intellectual climate, such that they could become an educated adult blogger, staffer at MSNBC, and so forth, and believe just about any nonsense said about any prominent conservative like Limbaugh.

FURTHER UPDATE: This seems like a good place to reprint an anecdote I published once before:

Senior year of college, I took a political economy class from a very left-wing, but very fair-minded, Sociology professor. One of the books he assigned was David Stockman’s The Triumph of Politics. Stockman was a libertarian Republican who served as Reagan’s first budget director. At the beginning of the book, he provided a concise summary of why he thought limited government was beneficial to the American people. When the class discussed the book, one of my fellow seniors exclaimed, “This was very interesting to me! He seems like a good guy... I didn’t know that any conservatives actually cared about people!.” Kudos to this professor for enlightening my classmate, but how does someone get to her senior year of college without being exposed to the radical idea that not all conservatives are innately evil?

I’d add that it’s hardly good for American democracy and public discourse that many students graduate without such enlightenment.

Last week, I criticized a review by Prof. Stephen Howe of Shlomo Sand’s book, The Invention of the Jewish People.  Given the somewhat personal nature of the criticism, I invited Prof. Howe to respond, which he does below:

Thanks for your courtesy in letting me know about your posting on Volokh, which I read with great interest (as I also did the ensuing comments from others).

Surely it’s clear that my remark about people with no discernible expertise refers to those who have launched wild and abusive attacks on Sand, not to every blogger who has commented on the book. The latter would indeed have been a wild, absurdly over-general charge — and in any case I have of course not read more than a fraction of the truly remarkable outpouring of commentary, in several languages, which continues to appear. I do not find abuse of that kind in your own criticism, so naturally did not have you among my implied targets.  However, where you say you ‘haven’t seen anyone call Sand anti-Semitic’, I’m afraid I have come across many such instances. Just try Googling the relevant words!

As to my own knowledge or lack thereof, a more careful glance through my past publication list would reveal that I have written a fair bit over the years on Israeli history and politics, in both journalistic and more academic veins. I have been working for some while on a book on Israel’s ‘history wars’, and from both that and a more longstanding ‘layperson’s interest in Jewish history’ am I think fairly well acquainted with most of the very disparate controversies into which Sand ventures. Insofar as, in my view, the real point and purpose of Sand’s polemic is not about ancient history but present-day Israeli politics, I have followed these fairly closely for many years. Apart from anything else, I am closely connected to the country through what E.P. Thompson once called ‘the accident of marriage’.

Both you, and more than one of the respondents so far, apparently see both Sand’s book and my review as serving ‘an anti-Zionist agenda’. I leave it to Sand himself to say whether ‘anti-Zionist’ is an accurate label for his views (though he clearly signals his belief in Israel’s right to exist). I’ve long doubted whether a crude, simple division of people’s worldviews between Zionist and anti-Zionist is a helpful way of mapping the complexities either of Israeli politics or of attitudes to it. And ironically I have myself more than once in the past come under attack for supposedly engaging in ‘Zionist’ apologetics. So long as I continue thus occasionally to be assailed from both ends of the spectrum, I shall feel I’m getting something right.

P.S. I should have added that I in my turn agree entirely with the subsequent comment you posted, thus: “‘Totally agree. I’ve said before that I find these historical debates rather irrelevant to the Israeli-Palestinian conflict. Even if few Jews are descended from ancient Judeans, or even if most Palestinians’ ancestors didn’t live in Israel Palestine until rather recently, that wouldn’t in any way change the fact that Israeli Jews believe themselves to believe a national entity, as do Palestinian Arabs, and act on that basis. Either group’s national ‘rights’ must be based on their modern national identity, not their ancient ancestry.” Hear, hear!

[Having found some common ground between myself and Prof. Howe, and appreciating his gentlemanly response, I will leave it at that–DB]

Tags: Invention of the Jewish People, Shlomo Sand, Stephen Howe

MIT’s Richard Lindzen is one of the world’s leading climate scientists.  He is also a climate “skeptic,” rejecting claims that anthropogenic emissions of greenhouse gases are likely to create a climate catastrophe.  Above all others, he is the climate skeptic environmental activists most fear, as he has unimpeachable credentials.  As a prominent climate scientist who believes global warming could cause an environmental catastrophe confided to me, Dr. Lindzen’s views are not easily dismissed, even if his views are somewhat outside the “mainstream” of climate science.  (Of course, we may have to reconsider what constitutes “mainstream” climate science after the leak of e-mails and other documents from the University of East Anglia’s Climate Research Unit.)

Today, Dr. Lindzen has an op-ed in the Wall Street Journal on “ClimateGate” and the state of climate science.  According to Dr. Lindzen, there is “a scandal that is, in my opinion, considerably greater than that implied in the hacked emails from the Climate Research Unit (though perhaps not as bad as their destruction of raw data): namely the suggestion that the very existence of warming or of the greenhouse effect is tantamount to catastrophe.”  The problem is that the entire climate change policy debate proceeds as if the primary — if not only — question to be answered is whether human activity is having an effect on global temperatures.  This quesiton is important, but it hardly resolves the relevant policy questions.  Even if human activity is having significant effects on the cliamte system, we must determine whether those effects are likely to be negative, whether the causes or their effects can be prevented, as well as whether it is better to try and prevent such changes or adapt to their likely effects.  We must also determine whether human welfare is at greater risk from climate change or proposed climate change policies — an open question at this point — and recognize that the answer to this question may vary from place to place.  The answers to such questions will be informed, but not determined, by science.  Normative and other considerations must also come into play.

As Dr. Lindzen suggests, the pretense that a given degree of warming requires a particular policy response — and a particualrly urgent and dramatic one at that — places substantial political pressure on the scientific process.  “It is only such a scam that lends importance to the machinations in the emails designed to nudge temperatures a few tenths of a degree.”  Whether or not one accepts Dr. Lindzen’s assessment of the science, this point about the nature of the climate change debate is immensely important.

Also worth reading, John Tierney on the threat of “smug groupthink” in climate science.

A story on Tareq and Michaele Salahi in today’s Washington Post begins as follows:

E-mails turned over to the Secret Service show that Tareq and Michaele Salahi had sought a top Defense Department official’s help to gain access to last week’s White House state dinner.

People familiar with the inquiry into how the Salahis were able to attend Tuesday’s gala, even though they weren’t on the official guest list, said the Salahis exchanged e-mails with Michele S. Jones, special assistant to the secretary of defense and the Pentagon-based liaison to the White House. It was unclear how well the Salahis know Jones, but Jones includes the Salahis’ lawyer, Paul W. Gardner, as one of her 50 friends on Facebook.

The story itself is interesting, but I was more intrigued by the last line: “It was unclear how well the Salahis know Jones, but Jones includes the Salahis’ lawyer, Paul W. Gardner, as one of her 50 friends on Facebook.” Note that the story does not explain what Facebook is, what a “friend” is, or what the significance might be of Gardner being one of Jones’s 50 friends. Rather, the authors assume you know that already. So here’s the question: Is Facebook so widely used among likely readers of the article that no such explanation was needed? 

Conservative columnist Jonah Goldberg recently expressed the common view that “A little mystic nationalism is a good and healthy thing because it provides the emotional sinew that helps us hold onto our patriotism.” Pascal-Emmanuel Gobry expounds on this defense of nationalism in more detail here. My own view of nationalism is far more negative than theirs. Indeed, I believe that nationalism is second only to communism as the greatest evil of modern politics. There are many different meanings of nationalism. Here, I refer to loyalty to one’s own nation-state based on ties of language, culture, or ethnicity, which I think is roughly what Goldberg and Gobry are referring to as well. 

I. Nationalism as a Cause of Mass Murder and Repression.

One big problem with nationalism is that it is a leading cause of mass murder. Fascism and Nazism were, of course, extreme forms of nationalism and the mass murders Nazi and fascist regimes committed were justified on the grounds that they were necessary to advance the interests of racially or ethnically defined peoples. Obviously, most nationalist governments do not commit mass murder on that scale. This is one reason why nationalism is not quite as pernicious as socialism Nearly all full-blown socialist regimes that have lasted for any length of time have engaged in mass murder; “only” a substantial minority of nationalist regimes have done the same.

But many non-mass murdering nationalist regimes still use nationalism as a justification for protectionism, discrimination against minority groups, suppression of dissent, and the like. Nor are these abuses simply the result of misinterpretations of nationalism by unscrupulous rulers. To the contrary, if you genuinely believe that we have special obligations to members of your ethnic or national group that sometimes trump universal principles, consistency requires that you be willing to sacrifice the rights of other groups to benefit your own, at least sometimes. This is particularly so, if you believe as many nationalists do, that international politics and economics is often a zero-sum game between different nations and ethnic groups. This kind of zero-sum thinking was, in fact, at the heart of Nazi and Fascist ideology (see here and here); given its nationalistic and zero-sum premises, the Nazi/Fascist program of conquest actually made a certain amount of sense. In theory, one can be nationalistic without also endorsing a zero-sum game view of the world; but, empirically, the two tend to be highly correlated.

II. Some Other Dangers of Nationalism.

Nationalism sometimes makes xenophobes even of generally tolerant liberals. For example, Senator Charles Schumer recently denounced the NBA for buying uniforms manufactured in Thailand. Schumer would rather see poor Thai workers (who are far worse off than even the poorest American workers) lose their jobs than violate the supposed principle that an “American sport” should buy American. Only nationalistic prejudice can explain such reasoning. Certainly, Schumer would never think of denouncing the New York Knicks for buying uniforms manufactured in Texas. If he did, he would become an instant laughingstock. Yet protectionists on both the left and the right make claims similar to Schumer’s all the time.

Finally, nationalism often leads people to reject good ideas merely because of their foreign origin, a flaw effectively denounced by F.A. Hayek:

The growth of ideas is an international process, and only those who fully take part in the discussion will be able to exercise a significant influence. It is no real argument to say that an idea is un-American, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots.

III. Do We Need Nationalism to Promote Good Causes?

Sometimes, of course, nationalistic prejudices can be enlisted in a good cause. For example, Polish nationalists opposed Soviet-imposed communist rule in their country. But this simply shows that people can sometimes support good causes for bad reasons. Communism in Poland was wrong because it created repression, poverty, and mass murder, not because it was established by ethnic Russians rather than ethnic Poles. By contrast, US-imposed governments in Germany, Italy, Japan, Grenada, Panama, and elsewhere turned out to be much better than those previously produced by indigenous nationalists in those countries. Nor is it the case that nationalism is the only force that can motivate people to sacrifice for a just cause. Many of the most prominent Eastern European dissidents — people like Vaclav Havel and Andrei Sakharov — were primarily motivated by universal principles, and were often critical of nationalism. Here in the United States, brave people risked their lives to abolish slavery and Jim Crow, even though neither was a nationalist cause (indeed, both causes were explicitly universalist in their rejection of the supposed moral importance of race and ethnicity).

The same response applies to Gobry’s argument that we need nationalism to prevent our liberties from being taken away by a “globalist glob” of rule by international elites. One can indeed oppose world government on nationalistic grounds. But the much more compelling argument against it is that it would create a dangerous concentration of power. For similar reasons, I can oppose domestic centralization of power in Washington without feeling any “mystical” or nationalistic loyalty to the state of Virginia.

I am not so naive as to think that we can do away with nationalism any time soon. But we should do what we can to diminish its influence. Contrary to conventional wisdom, nationalism is not an inevitable natural human instinct. Very few people were nationalistic until various European governments started indoctrinating their populations in nationalist ideology in the 19th century. Prior to that time, few objected to the existence of multinational polities such as the Holy Roman Empire (at least on nationalistic grounds) or believed that any important moral obligations could be based on common ethnicity.

IV. How Playing with Nationalism is like Playing with Fire.

Much of the above is to some degree unfair to Goldberg, Gobry and others like them. After all, they certainly don’t favor the extreme nationalism of the Nazis and Fascists. They probably don’t even support the much milder nationalistic prejudices underpinning Senator Schumer’s protectionism. Instead, they only advocate “a little mystic nationalism” — just enough to bind us together in a “common identity,” as Gobry puts it. Unfortunately, history shows that it is extremely difficult to limit nationalism in such a fine-grained way. Once established, it readily morphs into chauvinism, protectionism and often much worse. To some extent, this is the result of people’s general “rational irrationality” about politics, which prevents them from objectively examining their political views. But, as discussed above, it is also partly the result of the inner logic of nationalism itself, which insists that we have special moral obligations to based on nationality, ethnicity, or culture. Playing with nationalism is a lot like playing with fire. It’s not inevitable that you will get burned, but the risk is high.

Goldberg argues that one of the things that makes the United States “great” is “that it is ours.” By that standard, any state can be considered “great” from the standpoint of its own nationalists who claim it as “theirs.” In my view, the US — or any nation — is only great in so far as it effectively promotes universal principles such as the protection of “life, liberty, and the pursuit of happiness.” To the extent that the United States is more admirable than most other nations, it is in part because it was founded on those ideals rather than nationalism.

Noah Sachs, over at PrafsBlawg, is kind enough to respond to my post on the Copenhagen meetings and collective action problems.  It is worth reading the whole thing, but here is a chunk of it.  (If you comment, please remember that Professor Sachs is my guest here, so be courteous.  And my thanks to him for weighing in.)

My question — directed to international law experts in these kinds of negotiations — is how this round of talks is supposed to get past the usual collective action problems.  It takes climate change by assumption, so the issue here is not the leaked memos, Climategate, etc., but a question not of climate science but instead of international law, institutions, negotiations, and collective action.  Professor Sachs’ response in part:

Anderson is too pessimistic.  After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented.  The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada).  The EU-15 are on track to exceedtheir Kyoto commitments by 2012.   Reports of the death of Kyoto are greatly exaggerated.

So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole?  Let me count the ways:

• Self-interest in avoiding drought, sea-level rise, and hundred-degree summers
• A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled with the recognition that emissions monitoring can detect violators.
• A recognition of the historic responsibility of industrialized nations for the underlying problem
• Domestic political pressure not to tank a climate deal
• Reputational costs for major emitting countries for tanking a climate deal
• A recognition that a national commitment to energy efficiency and a low-carbon economy benefits national security and international competitiveness.
• The opportunity to participate in lucrative global carbon trading markets as a party to a post-Kyoto treaty.
• Translation of commitments made internationally into binding domestic legislation, as occurred in the EU.

I’m not saying that negotiations at Copenhagen will be easy, and few expect a final treaty to emerge from the conference — just that the underlying collective action problems here are not insurmountable.  I do expect a new international treaty to be concluded by the time the Kyoto Protocol’s first commitment period ends in 2012.  The price of every nation going-it-alone here is very, very high.

It’s VolokhConspirac. I know next to nothing about Twitter, so I might well have not configured this optimally; if so, let me know. Also, I couldn’t set up a twitter feed called VolokhConspiracy, because that was 16 letters long — but perhaps that’s just the user name length limit, and I can somehow set up a longer feed name. Just let me know, please, what suggestions you might have.

UPDATE: Readers suggested a shorter feed name, so we’re also at VolokhC; but I’ve kept VolokhConspirac for the benefit of those who have already subscribed to it.

Here’s what Crook writes:

I admire expertise, and scientific expertise especially; like any intelligent citizen I am willing to defer to it. But that puts a great obligation on science. The people whose instinct is to respect and admire science should be the ones most disturbed by these revelations. The scientists have let them down .... That is outrageous.

Megan McArdle adopts a world-weary tone similar to The Economist’s: this is how science is done in the real world. If I were a scientist, I would resent that. She has criticised the emails and the IPCC response to them, then says she still believes the consensus view on climate change. Well, that was my position at the end of last week, and I suppose it still is. But how do I defend it? There is far more of a problem here for the consensus view than Megan and ordinarily reliable commentators like The Economist acknowledge. I am not a climate scientist. In the end I have to trust the experts. That is what we are asked to do. “Trust us, we’re scientists”.

Remember that this is not an academic exercise. We contemplate outlays of trillions of dollars to fix this supposed problem. Can I read these emails and feel that the scientists involved deserve to be trusted? No, I cannot. These people are willing to subvert the very methods — notably, peer review — that underwrite the integrity of their discipline....

Pie chart zaniness from Fox Chicago News, reported by David DiSalvo (True/Slant).

UPDATE: I originally said this was from Fox News; commenter AJK points out that this was Fox Chicago News, a local Fox affiliate.

Representative David Obey’s Share Our Sacrifice Act would finance the war in Afghanistan by imposing a tax on the public.  The idea is yet another in a line of gimmicky populist measures that are sprouting like dandelions this political season, and it has garnered the support of apparently sensible people.  But it has little to recommend it.

One of the Economist’s bloggers says “it’s a very bad idea to get involved in a long, grueling, expensive war without explaining to the American people how much they will have to sacrifice, and securing their support.”  But the War Tax doesn’t explain anything and, as the author says elsewhere, would only reduce their support for the war.  The Economist cites Spencer Ackerman who notes “the military lament that only a select and small proportion of the country is actually at war.”  But soldiers volunteer for service; no one is required to join the military.  If the argument were that soldiers are underpaid and should have higher wages, or that the dependents of soldiers who are killed should receive more generous benefits, it would be possible to sympathize.  The only effect of the war tax would be to raise revenues for the government, which could use them for additional spending or to pay down the debt.  The war will go on, however the revenues are used.

It is possible that the Afghanistan War is a bad idea; if so, the remedy is to end the war, not to raise taxes.  If it is a good idea, the benefits will accrue to the inhabitants of the future, who will be protected from terrorists and other baddies, not us.  We perform a benefit for the future, and we charge them for our costs; what is there to object to?  Deficit spending for what is in effect a capital investment—as opposed to spending on current consumption—is justified.  If the War Tax is imposed, we simply transfer additional wealth from ourselves—including the soldiers and others already making the sacrifices—to the future.

Just as the war must be evaluated on its own merits, so must taxation.  If the real goal of the tax is to reduce the deficit, that’s fine; just don’t call it a “war tax” (as long as we are explaining things to the American people); call it a “tax.”  If, as many economists believe, now is the time for further stimulus; a tax is a bad idea.  We’ll have to borrow even more to offset the demand-suppressing effects of the tax.  Whatever the case, the possibly good fiscal reasons for raising taxes are independent of the war in Afghanistan.

In Sunday’s presidential election, the voters of Honduras chose Partido Nacional candidate Pepe Lobo, who won 58%, compared to 33% for Partido Liberal candidate Elvin Santos. Both candidates supported the removal of former president Manuel Zelaya, who had violated Articles 373 and 374 of the Honduran Constitution and forfeited his office by attempting to arrange a second term for himself. Zelaya had called for a boycott of the election, and predicted that an abstention rate of over 50% would make the election illegitimate. As it turned out, 61% of enrolled voters cast ballots–an increase from the 2005 presidential election (which Zelaya won with 49.9%), and in which only 53% of enrolled voters had participated. In the 2001 election, participation was 64%; in 1997 it was 72%, and in 1993 it was 65%.

Although Zelaya had won on the Partido Liberal line, his attempt to entrench himself in office made him anathema to the vast majority of Partido Liberal legislators.

Update: Since some readers were apparently unclear about what I meant by “decisive win for democracy,” I meant that a solid majority of Hondurans repudiated by Zelaya by going to the polls to vote overwhelmingly for two candidates who both repudiated Zelaya’s efforts to destroy the Constitution. Which of the two of those candidates got the most votes was irrelevant to the fact that democracy itself triumphed.

So reports the Sunday Times (London). The data apparently got “dumped to save space when the CRU [Climate Research Unit] moved to a new building,” “in the 1980s, a time when climate change was seen as a less pressing issue.” Only the adjusted data, adjusted based on decisions by the CRU scientists, has been kept.

I have no knowledge about the underlying science of global warming, though scientists I know of generally seem quite convinced by the claims that human activity has caused global warming, and is likely to cause much more dangerous amounts in the future. I’m usually inclined to defer to such a consensus among serious scientists, precisely because they know vastly more about the subject than I do.

But it seems to me that the destruction of the raw data is a very serious problem, and a sign of a remarkably lackadaisical attitude — and that it doesn’t take a climate scientist to so conclude. Unless I’m mistaken, people were talking about the possibility of global warming and the need to take expensive action to combat global warming even in the 1980s; one would think that data relevant to such an important issue wouldn’t get thrown out. But even before it was obvious that calls for action with multi-trillion-dollar economic effects would be based on the data, how can a serious scientific research organization destroy the raw, unedited data on which its major research program rests? 

Surely the value of the raw data should be obvious. Even if the adjustments seem sound at the time, scientists must recognize that even they themselves might later conclude that some of the adjustments are imperfect, and that better ones should be applied. And of course there’s the possibility that other scientists might challenge the adjustments as invalid, and would want to examine the raw data to see where it points using rival adjustment approaches. What’s going on in the scientific world if this sort of destruction of important raw scientific databases is happening? Plus, according to the Times, “The UEA’s Climatic Research Unit (CRU) was forced to reveal the loss following requests for the data under Freedom of Information legislation” — can it really be that only legal demands have caused this important fact to be revealed? Or is there something here that I’m missing?

I should acknowledge, by the way, that the lost data acknowledgment isn’t entirely new; I suspect that it’s the controversy about the released e-mails that is bringing it up again — and I know that I didn’t pay much attention to the lost data matter until the e-mails were released. Still, putting things together makes it look like far less care than one would expect is being taken with this obviously important subject.

Thanks to InstaPundit for the pointer.

Pre-election polls showed support for an initiative to ban the construction of new minarets in Switzerland at only about 35%. However, thanks in part to backing from feminists, the ban passed with 57.5% on Sunday, sweeping all but a few of Switzerland’s 26 cantons. The website for the ban’s supporters is here, along with a picture of a campaign poster (showing the Swiss flag punctured by missile-like minarets, along with a woman in a burka) that was banned in some cities because it was said to be discriminatory.

A legal challenge is likely under the European Convention on Human Rights. The most relevant provision is Article 9, which provides:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Proponents frequently cited the 1997 words of Turkey’s  Prime Minister Recep Tayyip Erdogan: “Mosques are our barracks, domes our helmets, minarets our bayonets, believers our soldiers. This holy army guards my religion.” A useful Wikipedia article is here. Switzerland’s population is about 5–6% Muslim, mostly immigrants from southeastern Europe.

Update: A commenter asks for what the arguments were in favor of the ban. According to the website of the initiative’s proponents, the argument was that minarets are intended as a symbol of Muslim superiority, particularly of superiority to any different religious/political system, and accordingly a vote against minarets is a vote against creeping shariaism. As the Wall Street Journal noted, the initiative is not a particularly effective tool for accomplishing its proponents’ objectives, but perhaps the Swiss majority decided that it was the only tool available to send a message to the political establishment.

Back in 2003, after I visited Geneva, I wrote the following for my Rocky Mountain News media column: “Local investigative reporting appears weak. A Swiss television station recently exposed a secret deal between the Geneva police and the Iranian government: The Iranians would not commit terror in Switzerland, while the Geneva police would turn a blind eye to Iranian terror bases in Geneva. In the United States, such a revelation would set off a frenzy of newspapers advancing the story with further investigation about a gigantic local police scandal, but the Geneva papers did little with the story.”

This is just one of many examples of the Swiss elite’s feckless and amoral dealing with the Islamonazis of Tehran. Roger L. Simon has written extensively about the Islamist hate-fest at the UN’s “Durban II” conference earlier this year in Geneva, where “I watched as the Swiss President welcomed the Holocaust-denying-nuclear-bomb-buliding-mega-misogynistic-homosexual-denying-and-now-demonstrator-murdering-religious-psychopath President of Iran Mahmoud Ahmadinejad.”

The Swiss government has provoked a backlash from the Swiss people. The decent, pro-freedom Swiss Muslims from places like Albania, who see a minaret as symbolizing nothing more than a Muslim parallel to a church spire, are the innocent victims.

CBS/AP reports:

America’s most successful party crashers, Michaele and Tareq Salahi, who stormed the gates of a White House state dinner and somehow managed to get in, may soon be facing criminal charges, according to the Secret Service.

Secret Service spokesman Jim Mackin says the agency is moving closer to beginning a criminal investigation. He says that’s one reason the Secret Service hasn’t yet explained what happened when Michaele and Tareq Salahi arrived at the security checkpoint Tuesday for the dinner honoring Indian Prime Minister Manmohan Singh. 

One likely charge is 18 U.S.C. § 1036, “Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport,” which prohibits:

Whoever, by any fraud or false pretense, enters or attempts to enter–
(1) any real property belonging in whole or in part to, or leased by, the United States;
(2) any vessel or aircraft belonging in whole or in part to, or leased by, the United States;
(3) any secure or restricted area of any seaport, designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section; or
(4) any secure area of any airport,
shall be punished as provided in subsection (b) of this section.

(b) The punishment for an offense under subsection (a) of this section is–
(1) a fine under this title or imprisonment for not more than 10 years, or both, if the offense is committed with the intent to commit a felony; or
(2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.

(c) As used in this section–
(1) the term “secure area” means an area access to which is restricted by the airport authority, captain of the seaport, or a public agency; and
(2) the term “airport” has the meaning given such term in section 47102 of title 49. 

I wouldn’t be surprised to see § 1036 trespass charges paired with charges relating to misrepresentation the couple presumably had to engage in to sneak in. For example, 18 U.S.C. § 1001 is a very broad statute that (more or less) prohibits lying to the federal government:

Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully–
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;shall be fined under this title, imprisoned not more than 5 years . . . 

The government might try to pair these two theories to trigger the § 1036 felony. For example, they could argue that the initial fraudulent trespass on to government property in violation of § 1036 occurred with the intent of then lying to the government to get access to Obama in violation of § 1001, triggering the felony provisions of § 1036(b)(1) in addition to the felony provisions of § 1001. 

It’s not totally clear how it would play out, as that could depend on the facts of the misrepresentations that the couple had to make to gain access to the dinner. But I think one thing is clear: Crashing a White House state dinner, and then bragging about it on Facebook, is really really dumb.

Tags: Gatecrashers

Let me leave aside for the moment all the leaked memos and stuff.  I would describe myself as a non-expert on climate issues who has been gradually persuaded to the following positions:

• Agnostic on the question of warming and human impact on it;
• Getting less agnostic as I read the emails and leaked materials;
• Unpersuaded that the CBA supports radical “front end” attempts to deal with a diffuse threat of uncertain likelihood far down the road, because the discount for uncertainty is too high;
• Persuaded by the Lomborg position that we should address real damage as it manifests, in the most prudent way;
• Persuaded by Lomborg that resources proposed for dealing with climate change must be weighed against other uses, particularly more immediate health and welfare issues such as malaria and AIDS; and
• Persuaded by Lomborg that climate change across a very long time frame must be weighed up, in resource terms, against much more immediate, unquestionable environmental damage not defined as CO2, but regular old air pollution, water pollution, etc., especially as it exists in the developing world, the cities of Asia, Mexico City, other places — and not set aside on the assumption that the developed world’s long term climate change issues should take precedence.

I’m not arguing for this, just letting you know where I’m coming from.  But let the rest of this post be on the assumption that all the climate change warming threats are real, if long term.  If that is so, then, leaving aside climate science and turning just to international law and  diplomacy and politics ...

Well, I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area.  Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand ... on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?

I’m not asking about climate science here, I’m asking about collective action problems in international law and policy.  How is this exercise different from previous failures?  Even if new states are persuaded to say yes on paper, on what grounds does anyone think that these commitments will be fulfilled this time, particularly given the record of Kyoto?  The article linked here from the AP talks about “momentum building” and “legally binding agreements.” What does that mean and how?  Legally binding to prevent defection down the road, how?  This is not an attempt to get snarky, but complete puzzlement on my part.  How is this different from earlier attempts?

The one thing that might be different, so far as I can tell, is that the meeting might make moves toward the global fund for the developing world.  Which would suggest, however, that the world has largely accepted that it won’t really do anything about the problem on the front end, but might do things to address concrete damage in the developing world.  Or perhaps will simply hand out the money as a sort of buy-off and global welfare transfer payment.  That seems to me to be the most likely outcome of Copenhagen, at most, and maybe or maybe not an agreement that, on the basis of past experience, will be invoked in op-ed pages and law review articles and politely sidelined as discussions get underway for the next round of agreements.  Copenhagen (apart from the speeches and expressions of concern and photo ops and opportunity for the Secretary General to re-cast himself as a little bit of a rock star) appears to me mostly about the fund.  It might have similar collective action problems in collecting for it, but that is a lot easier as a tradeoff than actually doing any of the stuff that might be proposed or even agreed to on the issue of climate change itself.

But there are lots of very smart people working on this issue in international law who, obviously, have thought long and hard about these problems.  How are the collective action problems believed to be overcome in this round?

(Update: I could be persuaded that the “real” common ground among governments is the desire for more government, and perhaps even the desire for global governance, as the best, or most likely, explanation for the pursuit of a process that, at least so far, I can’t see is supported by an account of how to overcome collective action failures.  However, it is not clear how that would overcome collective action problems, either, if it were true that the common policy sought were best understood not as “addressing climate change as such” but instead “increasing the size and powers of government using climate change as an opportunity.”  The interests of governments, to start with, are “parallel” rather than “common.”  And even if common, it is unclear what would prevent defection; in order for governments to seize these powers, would they not have to act on them and actually do something regarding climate change?

However, here is one way it could work.  One could see the desire to increase government size as a form of positive feedback loop, governments feeding and feeding off each other, toward the ends of larger governments.  In that case, one might say that governments expand not because they necessarily actually act to address climate change, whatever that actually means, but instead because they simply seize the powers that might address those things, but at bottom simply seize powers, whatever they actually do with them.

I am not an expert in consumer debt, so if this is incomplete or incorrect, I welcome comments on this.  However, here is an article from Yahoo Finance on how FICO scores are calculated, and specifically walking through the hits to your score taken for various credit events, ranging from maxing out a card to bankruptcy.  I was particularly interested to see that the better your starting credit score, the bigger the hit in points for each event.  Meaning, if your score started out at 680 and you had a late payment, the hit was 60–80 points.  But if you started out at 780, the same late payment was a 90–110 points hit.

PS.  My feelings about consumer debt are much the same as Megan McArdle’s, particularly as my daughter starts getting to those ages in which “consumption smoothing” looks like a possibly good idea ... I’m not about to sign onto the Dave Ramsey program (and I don’t sign onto his investment advice, except in the sense of the importance of savings), but I wouldn’t be unhappy if my child did ...  McArdle can retire now, if she likes, on her laurels for having written a post that I took Strong Measures to Persuade my kid to read, where McArdle talked about what it was like to be unemployed and not be able to afford Chinese food with friends, and how she practiced at home saying in the mirror the words, she said, that were about the hardest she’d ever had to say, “I can’t afford it.”

PPS.  Just in case anyone misunderstood, I was complimenting McArdle in talking about retiring now on her laurels, and high praise indeed.

From the Catholic News Agency:

For several days massive mobs of Muslims have been attacking Coptic Christians in the Egyptian town of Farshoot 300 miles south of Cairo. The mobs’ looting, vandalism and arson have caused at least $1 million in damage as Copts hide indoors for fear of their lives.

Many Copts have been attacked and injured, the Coptic American Friendship Association (CAFA) says. Coptic priest Rev. Benjamin Noshi suffered a fractured skull in the attacks and is now hospitalized.

Nearly 3,000 Muslims have been damaging and looting at least 50 Christian-owned shops, including jewelry stores and pharmacies. Most Coptic businesses in Farshoot have been looted or burned and many families have been thrown out of their homes by other Muslim residents.

The attacks were sparked by a claim that a 20-year-old Christian man, who is in custody, had a relationship with a 12-year-old Muslim girl....

The Assyrian International News Agency has similar reports; thanks to Religion Clause for the pointer.

I’m sure you know Adam Sandler’s “Hanukkah Song,” but did you remember that he has a Thanksgiving Song too? It’s almost as funny.  Here’s a taste of the lyrics — much funnier sung by Sandler than read.

Love to eat turkey
‘Cause it’s good
Love to east turkey
Like a good boy should
‘Cause it’s turkey to eat
So good
Turkey for me
Turkey for you
Let’s eat the turkey
in a big brown shoe
Love to eat the turkey
At the table
I once saw a movie
With Betty Grable
Eat that turkey
All night long
Fifty million Elvis fans
Can’t be wrong
Turkey turkey doo and
Turkey turkeydap
I eat that turkey Then I take a nap

Here’s a performance of it from Saturday Night Live, and a live recording without video.