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Saturday, December 14, 2002

 

THE POINT ABOUT TRENT LOTT isn't racism; he probably isn't a racist. The point is that once a stupid person has gotten hold of a job like majority leader, it's maddeningly difficult to get rid of him. He will go along for years saying and doing medium-sized dumb things, none of which is enough by itself to force his removal but all of which kill you cumulatively. When someone like that commits a big mistake -- something really stupid -- you have to pounce right away and force him out. It's your only chance. The window is now open for Trent Lott. Unless you're a Democrat, you have to hope somebody pushes him out before it closes. (If you are a Democrat, now is the time to magnanimously accept his apology and agree that it's time for us all to move on.)

UPDATE: The situation appears to be in hand; Don Nickles understands.


 

THWARTING TERRORIST ATTACKS:CNN.com has coverage of a recent Associated Press interview with FBI Director Robert Mueller. An excerpt:
Mueller said "tens of attacks, probably close to a hundred around the world" have been stopped in the past 15 months. He credited better intelligence gathering and coordination, and information from al Qaeda detainees in custody, including those he described as architects of would-be attacks. "There have been any number of attacks on ships that have been thwarted," Mueller said. "Without getting into details, we have thwarted a number of attacks, both large and small."

 

TRANSLATING LOTT: Here is an excerpt from Trent Lott's latest statement about his recent remarks praising Strom Thurmond's 1948 Presidential campaign:
I take full responsibility for my remarks. I can't say it was prepared remarks. As a matter of fact, I was winging it. I was too much into the moment. But I only hope that people will find it in their heart to forgive me for that grievous mistake on that occasion.
Fortunately, I managed to find my Politician-In-Trouble-Into-English dictionary, and it allowed me to translate that into everyday language. According to my dictionary, here's the translation of Lott's comment above:
I've been told that this will blow over if I say that I'm taking "full responsibility" for my remarks. There, I said it: "full responsibility." But c'mon, folks, this is ridiculous. Heck, I didn't think anybody was paying attention! Can't you all just forget about this and move on?
Well, no.

 

MISPLACED TRUST IN LAW REVIEW ARTICLES?: Juan writes below:
The standard protocol for law reviews is that each and every footnote is verified for its accuracy by the editors of the law review. Quotes are checked; dates verified; supporting authorities examined; and so on. It is a laborious process (one with which I was all too familiar in my law school days), but one that makes legal academic publications reliable in a fashion that other academic publications are not. Arming America could not have been published in a law review, as it would not have survived this process.
I disagree, at least based on my experience as an author. My first law review article was based on an empirical study I performed myself; the paper was accepted by and published in the Yale Journal on Regulation in 1998. I'm quite sure the editors did not try to duplicate my results before publishing the paper. In fact, come to think of it I don't think they asked for a copy of my underlying data. I don't mean that as a criticism of the Journal, which did a fine job editing the paper; rather, I think it reflects a common attitude of law review editors towards the papers they publish.

      Practices at different journals vary, but at most law reviews I think it's understood that editors have a relatively limited role. Once they have decided to accept a paper (a decision generally based on a mere guess as to how important the paper is-- but that's another post for another day), most editors will take the view that they have signed on to do cite-checking and style editing. Most journals do not do a tremendous amount of scrutiny of the underlying argument, or of any empirical data that the author presents.

 

WHATEVER YOU THINK ABOUT ASSET FORFEITURE, you might enjoy this BBC item, thanks to Sasha Castel (no relation):

A group of Sicilian farmers dedicated to battling Italy's Mafia is about to produce its first "anti-Mafia pasta" made from wheat grown on land confiscated from the mob.

 

LAW REVIEW AND PEER REVIEW: Juan's right that student-edited journals have this advantage over standard academic peer-reviewed journals. But:

  • We only check footnotes for accuracy; you can cite previously cited sources that are wrong or fabricated, and we won't catch that (unless their mistake is that they themselves wrongly cite a source).


  • If the data is personally gathered (as Bellesiles's was), it's not clear how much scrutiny we would give it.


  • If the thesis makes no sense, we may catch it as brainy people, but if it makes no sense in a very subtle way, we may not, since we're only students. We do give pieces to faculty members to read and review before we discuss whether to accept them, which usually will weed out the really wrong stuff (though not Bellesiles-like stuff, which lots of faculty members liked until someone started digging), but authors often add material during the editing process.


The law review editing process is, I think, ideally suited for doctrinal work, where the only sources are cases, statutes, and other law review articles -- there, checking the footnotes and reading the author's sources carefully as he cites them can be great. One of the big arguments in favor of student-edited work is that students aren't as stodgy and are more willing to publish way-out-there views that challenge received wisdom; when the sources are traditional legal stuff, we can do that and make sure no one's falsifying the evidence. But go into interdisciplinary stuff and start citing psychology or history or complex self-collected data (would Bellesiles have submitted his legendary legal pads with the pen-marks on them? surely we wouldn't have demanded copies of all those probate records), and it gets dicier, maybe as bad as any other type of journal.

Which reminds me of a story about how the peer-review process can catch some sloppiness that students wouldn't have been able to do. One paper submitted to an economics journal tried to measure the returns to education, and found implausibly low numbers (i.e., lower than what other papers had found). The professor on the journal, who had lots of experience using similar data sets, realized what was wrong. The education variable, which measures the number of years of education, takes the value 99 when the data is unavailable, so of course you have to eliminate those observations before you run a regression. Otherwise, you get all these people in your set who have 99 years of education but don't have stupendous wages to reward all that educational achievement, so your estimate of the effect of education looks lower. That's an argument for review by experts.

UPDATE/RISING TIDE: See Garrett. Garrett, shouldn't you (and I) be working on our Roman Law exam instead of blogging?

 

PLURAL OF BELLESILES: I think Bellesiles has got to be either a third-declension noun, like pes (foot), nubes (cloud), or cives (citizen), or a fifth-declension noun, like res (thing) or dies (day). The fifth declension is unlikely because those nouns are all (or almost all) feminine. So I'd go with the third declension. Then we have two possibilities -- either Bellesiles is a regular third-declension noun or it's an i-stem. Let me illustrate the differences:

  • A regular third-declension noun would be Bellesiles in the nominative singular (i.e., when it's the subject of a sentence), and in the plural it would become Bellesilides or Bellesilices (the first would follow pes, the second would follow silex meaning flint-stone, if you wanted to argue that Bellesiles' name was a version of the Latin bella silex meaning "handsome flint"). Let's go with the second version; then the forms of Bellesiles would be, in the singular, Bellesiles (nominative), Bellesilicem (accusative), Bellesilicis (genitive), Bellesilici (dative), Bellesilice (ablative), and in the plural, Bellesilices (nom. & acc.), Bellesilicum (gen.), Bellesilicibus (dat. & abl.).


  • An i-stem wouldn't have an extra consonant in the other forms, but it would gain a couple of i's in a few places. The disadvantage is that the nominative singular and the nominative plural look the same and you can only distinguish by context. These would be the forms in the singular: Bellesiles (nom.), Bellesilem (acc.), Bellesilis (gen.), Bellesili (dat.), Bellesile (abl.). And the plural forms are: Bellesiles (nom. & acc.), Bellesilium (gen.), Bellesilibus (dat. & abl.).


Just to clarify what the cases mean -- nominative means Bellesiles is the subject ("Bellesiles did this"); accusative means Bellesiles is the direct object ("I saw Bellesiles"); genitive means Bellesiles is in the possessive ("The book of Bellesiles"); dative means Bellesiles is the indirect object ("I gave it to Bellesiles"); and the ablative, well, among other things, it's used with the preposition "with" ("I wrote the book with Bellesiles"). Also different cases (with no apparent rhyme or reason) go with different prepositions, e.g. "post" and "ante" take the accusative while "cum" and "sine" take the ablative.

UPDATE: Yes, I know, it's not Latin, it's French. But "belles iles" (beautiful islands) is (1) already plural, and (2) doesn't allow me to do all that fun Latin stuff! Another possibility: insist that Bellesiles only be used in the plural, and say "Belleile" in the singular.

UPDATE 2: See above.

 

RE: THE POSTS BELOW: What's the plural of Bellesiles?

 

WHY ARE THERE SO FEW LEGAL BELLESILES? While I wonder about the extent of shoddy academic research in the social sciences and the humanities, there is one area in which I am relatively confident there are relatively few Bellesiles-esque researchers: law. Why? Not because I believe that legal academics are any more scrupulous than their non-legal brethren. (If anything, I could be convinced of the opposite.) Rather, it is due to the nature of legal scholarship.

In legal academia, the vast bulk of academic publications are edited by students, rather than by academics. One consequence of this is a lack of peer-review – something which causes many non-legal academics to look down their collective noses at law reviews. Another distinguishing feature of legal publications is that footnotes and citations are verified by the editors. For those readers unfamiliar with law reviews, let me make this absolutely clear. The standard protocol for law reviews is that each and every footnote is verified for its accuracy by the editors of the law review. Quotes are checked; dates verified; supporting authorities examined; and so on. It is a laborious process (one with which I was all too familiar in my law school days), but one that makes legal academic publications reliable in a fashion that other academic publications are not. Arming America could not have been published in a law review, as it would not have survived this process. (Though once Arming America was published, countless articles could be published in law reviews citing its "findings.")

I believe that these two aspects of legal academic publications – student editors and citation checking – are related. We only have the latter because we have the former. Academics may be willing to peer review each other’s work, but they surely would never consent to spend hours in the library verifying the accuracy of footnotes. Nor does the typical academic journal have sufficient resources to compensate graduate students to perform this task. As a result, many non-legal academic publications are less likely to uncover fraudulent or misleading research in manuscripts accepted for publication.

The only reason law students are willing to engage in the tedious process of fact-checking dozens upon dozens of footnotes is that they are compensated for their efforts with editorial positions on law reviews, and the prestige and stature which can accompany such positions. Serving on law review can be necessary for positions at many high-dollar law firms or with prominent judges. Ending student-edited law reviews would, I suspect, greatly diminish the potential labor pool for cite-checking, and the demise of cite-checking would eliminate law reviews' comparative advantage vis-a-vis other academic publications. After the Bellesiles scandal, that is no small thing.

 

WHY ARE THERE SO FEW BELLESILES? Ever since the Arming America scandal broke I have been wondering why there have not been more scandals of this sort. The Bellesiles affair illustrated that it is shockingly easy to publish shoddy - if not fraudulent – research, and I have no reason to believe that academics, as a class, are substantially less prone to sloppiness or deception than people at large. I do not mean to suggest that most academics are scoundrels. Rather, given the number of academic researchers, even a relatively small proportion of incompetent, lazy, or dishonest researchers would produce a large corpus of bad research. Thus, I do not find it hard to believe that for every Bellesiles that is uncovered, there may be dozens who remain undetected. Are my instincts wrong?



Friday, December 13, 2002

 

AS ALWAYS, Jacob Sullum has a well-written column in Reason defending the right to smoke -- here, in New York bars and restaurants. Jacob also discusses filtering software that would allow the French to block illegal Nazi-memorabilia-selling Yahoo! sites on the receiving end rather than try to sue Yahoo! in the United States to shut it down. On the plus side, Yahoo! might be harassed less by the French and other repressive regimes. On the minus side, to the extent this works, the French government could use it to its benefit.

 

THANKS, EUGENE, for letting us come over and play while you were gone! (And thanks to Sasha, Orin, Erik, Juan, and Philippe for blogging with us!) David and I had fun -- we hope your readers did, too. And we hope they'll drop by OxBlog every now and then to say hi.

 

WILLIAM SALETAN goes way overboard in attempting to use Trent Lott to tar all conservatives:
How many conservatives who denounced Lott this week appreciate the civil rights movement? How many have made careers out of deriding feminism, as though the women's movement achieved nothing? How many worship Ronald Reagan, who helped defeat the Equal Rights Amendment? How many defend Helms, who in 1990 defeated a black opponent by complaining in an ad that whites were losing jobs to blacks because of quotas? How many speak congenially to people who support them for what they know are ugly reasons? How many worry about the overlap between the positions of segregationists and the positions of people such as themselves, who defend the rights of states, neighborhoods, and private institutions? How many refuse to see that you can't be nice to racists without being callous to the people they despise?

Let's take this one sentence at a time: How many conservatives who denounced Lott this week appreciate the civil rights movement? At a rough guess, I'd say almost all of them. The vast, vast majority of conservatives today believe fervently in King's ideal of a color-blind society. We actually believe in it -- it's not just a cynical ploy to hide our true white supremacism, hard as that may be for some people to accept. And if Saletan wants to suggest otherwise, then he needs to do better than an innuendo-laden rhetorical question.

How many have made careers out of deriding feminism, as though the women's movement achieved nothing? Again, this is just silly. Almost no conservatives argue against the principle of gender equity. I haven't noticed many conservative screeds against the Nineteenth Amendment lately, and, in case Saletan hadn't noticed, a number of the conservatives who went after Lott were women -- Michelle Malkin, Kathryn Jean Lopez, and Linda Chavez, among others -- suggesting that they're not exactly pining for the good ol' days in which a woman's place was in the home. Yes, many conservatives do attack feminism, but to conflate 1990s feminism, represented by the likes of Andrea Dworkin and Catherine MacKinnon, with the advances made by the women's movement in earlier decades is just dishonest.

How many worship Ronald Reagan, who helped defeat the Equal Rights Amendment? Yes, but how many worship him because he defeated the Equal Rights Amendment? This is different from the Lott situation because, as James Taranto points out today, Thurmond's 1948 presidential run really was almost all about segregation. No one could argue that his opposition to the ERA (and, for the record, I think the ERA should have been passed, although my knowledge of it is far from complete, and I'm open to being convinced that I'm wrong) was the central focus of Reagan's campaign. Surely Saletan isn't arguing that you have to agree with everything a politician stands for in order to support that politician. The point about Lott's expressing support for Thurmond is that segregation was almost all that Thurmond did stand for in his 1948 presidential bid.

How many defend Helms, who in 1990 defeated a black opponent by complaining in an ad that whites were losing jobs to blacks because of quotas? I don't know. And I haven't seen the ad in question, but can't one run an anti-affirmative action ad without being racist? (Again, for the record, I have no intention of supporting Helms' record on race. I would simply point out that, insofar as it is reactionary, it represents the views of only a miniscule percentage of conservatives today. On that count, notice that Helms is being replaced by Elizabeth Dole, whom I think no one could accuse of being racist.)

How many speak congenially to people who support them for what they know are ugly reasons? This is unfortunate -- I wish more politicians would speak out against those who support them for ugly reasons. But to claim that this is a pathology unique to conservatives is absurd. It's a fact of democratic politics.

How many worry about the overlap between the positions of segregationists and the positions of people such as themselves, who defend the rights of states, neighborhoods, and private institutions? The "overlap"? In other words, if you advocate the same position as a bad person, then that position must be wrong? Does that work against liberals, too? Let's try: How many liberals worry about the overlap between the positions of communist dictators (say, universal healthcare) and the position of people such as themselves, who defend the rights of the poor to be provided basic social services for free?

How many refuse to see that you can't be nice to racists without being callous to the people they despise? Again, I agree with this principle. I'd like to see it evenly applied. No Democrat should ever again meet with Jesse Jackson, Sr. or Al Sharpton -- their anti-Semitic comments certainly place them beyond the pale. The racism of Diane Watson and Michael Moore certainly rule them out. The list can go on.

None of what I've said above in any way mitigates what Trent Lott said, and the man still needs to go. And as I've argued before, it would be stupid and wrong for conservatives to try to deflect the charges against Lott by bringing up instances of racism on the left -- racism by one's opponents does not justify racism by one's allies. But when people like Saletan or Krugman try to tar the entire conservative movement as racist, that's when conservatives have to play defense. Because the only way you can claim that conservatives in general are racist/sexist/whateverist is by making either (a) factually erroneous claims (e.g., 'most conservatives don't care much for the civil rights movement'), or (b) arguments that are sufficiently overbroad that they manage to tar every politician as racist/sexist/whateverist. Saletan does both. And he's not convincing.

 

RIDING OFF INTO THE SUNSET: It seems that Eugene is back and that the time has come for myself and Josh to return from whence we came. (No, not the local pub. I meant OxBlog). It has been a pleasure.

 

AN LSAT SNEAK PEAK: Mitch Webber presents a typical LSAT logic game.

 

ME, TOO! I have nothing original to say about Trent Lott, but I thought I'd pass along something that my friend and former colleague Dan Polsby posted to a discussion list (and kindly agreed to let me repost):
Is it not curious and wonderful that Sen. Lott seems unable to see what everyone else can see about his predicament? Here he is, hunkered down in his regulation Beltway duck-and-cover position, thinking of firestorms past and how people have survived them. It's all about him. The welfare or interests of other people who depend on the leader of a political party, and how he might best serve them, have never evidently crossed Sen. Lott's mind since this business began -- if ever. The latest bleat seems to be: those Democrats, that Jesse Jackson, they have unclean hands and double standards. In other words: if they can have double standards, so can we. Fooey.

There is something the matter with this guy. The same thing is the matter with many of them. Not racism -- solipsism. The "it's all about me-ness" of the world. This is the sort of person who steps up to the plate when offices and dignities are being passed around. They have to be controlled. Madison was a genius.

 

I AM NOT ALONE: Stephen Schwartz shares his thoughts on democracy and Islam.

 

ALGERIA VS. IRAN: As promised, I am now going to present a solid, empirical case for the viability of democratization in the Middle East. The way I'm going to do it is country by country. First up is Algeria. Now if you asked me last week what I know about Algeria, I would've told you this: It was a secular dictatorship until the early 1990s, at which point it decided to hold elections. When a radical Islamist party won those elections, the military nullified the result and the country descended into a bloody civil war. In short, I would've had to admit that Algeria was a perfect example of the "Iranian paradigm" in action.

That, however, was last week. Now, thanks to the Journal of Democracy, I know a lot more about Algeria. So let me share.

The civil came to an end, more or less, when the government and the Islamic guerrillas declared a truce in 1997, followed by an official amnesty in 1999. The current president of Algeria is Abdelaziz Bouteflika, who came to power after all of his rivals in the 1999 presidential "election" withdrew because they knew if would be rigged. Bouteflika is, of course, the candidate of the military, who still have the final say in Algerian politics. Nonetheless, elections for the national, provincial and local assemblies have been essentially fair, including the most recent National Assembly elections in May 2002. Bouteflika's party, the FLN, took 36% of the vote, more than any other party and enough to give it a majority in the Assembly.

According to William Quandt, professor of politics at the University of Virginia (and author of the Algeria article in the current issue of the Journal of Democracy), Algeria
seems to be divided into at least three main ideological blocs: 1) a nationalist group backed by between 25 and 30 percent of the population—officials, state workers, and rural voters—that reliably votes for the FLN or other government-endorsed parties; 2) an Islamist bloc that commands the loyalties of some 15 to 20 percent; and 3) a Berber-nationalist bloc that has the support of another 10 to 15 percent. Political allegiances within the remainder of Algerian society are scattered among small groups of democrats, regionalists, and independents. No single bloc has a majority, and none can easily govern without some support from at least one of the others.

Second, elections have revealed the main fissures in Algerian society, but they have done little either to legitimize governance or to challenge the positions of those in power. Nor have democratic procedures taken root as a way of resolving conflicts. While elected officials are by no means mere puppets of the military, they know that the latter potentially has veto power over major decisions.
While it would be hard to call this good news, it does underscore one critical point: that there is no need to fear a radical Islamic resurgence should Algeria progress further toward liberal democracy. The initial cycle of revolt against the old regime has run its course and a new political structure is emerging. As Quandt observes, the military "has now succeeded in reducing the chances of an Islamist victory—whether by force of arms or at the polls—to almost nil."

Taking a somewhat more long-term perspective, one might whether Algerians are culturally ready to accept democracy or whether, as critics allege, Islamic culture is inherently unable of sustaining democratic politics. The evidence cuts both ways. While "there are some convinced democrats, but there are probably many more Algerians who have a narrowly instrumental view of democracy—in particular, viewing it as a means to get rid of a political order that they detest." On the other hand,
...multiparty democracy is no longer a disparaged concept in Algeria, as it was in the early days following independence. Most Algerians today say that they would welcome democracy, greater accountability, the rule of law, and more transparency. They are tired of the contempt with which the regime treats ordinary citizens...

Finally, a vibrant free press and growing access to satellite dishes and the Internet have made for lively political discussion within the country. Satire, political cartoons, rai music, and a rich political slang in dialectical Arabic provide outlets for political sentiment. The large community of Algerian expatriates living in nearby Europe also helps to ensure that ideas of modernity and democracy are well understood by Algerians back home, many of whom are fluent in one or more foreign languages—principally French, but increasingly English as well.
I find the existence of a strong and independent press to be the most encouraging of the positive trends, since it is an indication that Algerians themselves believe in the importance of the free flow of ideas as well as the right of the public to know what its government is doing in its name. If Islam truly were antithetical to democracy, the development of such a strong and independent press in just over a decade would be extremely suprising. However, arguments about Islamic culture often neglect to address the national and international dimensions of culture, which are no less important than the religious. While the concept of national culture is well-recognized (though not well-defined), international culture is a more elusive concept. Without engaging in a definitional or theoretical debate, I think it is possible to say the following: Ideas cross borders. Even in nations that are far from being democratic, there is a general awareness of what democracy is. This second-hand knowledge has been influential enough to mobilize mass democratic movements in nations that had never before experienced democracy, most notably in the former Soviet Bloc. Of course, there are those who explicity reject democracy, most often on religious grounds. But people everywhere believe that government must rest on a conceptual foundation, be it Islamic or democratic. In the absence of conceptual legitimacy, governments find themselves forced to justify their existence on narrow and defensive grounds, such as the need to avoid violence and chaos. While such arguments have for, example, allowed the Algerian military to insist that it is only the bulwark against an Islamic revolution. Now that the threat of such a resolution has subsided, however, the military cannot hold on without resorting to violence of its own. Fortunately, it seems to have decided that freedom is more important than power.

One thing Quandt does not talk about in his article is the role that the United States might play in promoting Algerian democracy. The reason he doesn't is because he can't. A hidden clause in the Journal of Democracy's editorial policy dictates that authors should not prescribe (or even project) a given course for American foreign policy. This clause exists to protect the Journal, since it is published by the National Endowment for Democracy, which is a federally-funded though nominally independent organization. (Note that its website exists in the .org rather than .gov domain.) Broadly speaking, I sympathize with this desire to protect the Journalfrom political controversies that might interfere with its intellectual mission. Still, in light of how academic the Journal has become, I think there is a place for measured, non-partisan considerations of what America can and should do to promote democracy abroad.

Regardless, the fact remains that the Journal's contributors cannot address such questions. So I will. In general, I believe that American foreign policy is the most powerful instrument available for encouraging democratic reform abroad. In the case of Algeria, as with all other Middle Eastern countries, we should make it eminently clear to those in power that we see democratic reform and the war on terror as inseparable. Terror is the antithesis of democracy, and cannot survive long if a democratic public is aware of it. In light of its demonstrated interest in relaxing its grip on power, there is every reason to believe that the Algerian military will respond to American overtures. On the other hand, if we say nothing, the military may exercise the conservative option of preventing further liberalization until the current crisis in the Middle East subsides. There are no predetermined outcomes. But focused action can make a difference.

 

WILL THE MADNESS NEVER END? Through Howard, a third second-hand smoke decision, right on the heels of the two I wrote about yesterday. Yesterday, the Ninth Circuit affirmed a tort damages award against an airline based on the airline's improper response to a passenger's respiratory condition in the presence of second-hand smoke; the day before yesterday, the Fourth Circuit reinstated an EPA report classifying, on the basis of shaky science, second-hand smoke as a known human carcinogen.

Today, it's the Second Circuit, in Davis v. New York. Davis is an inmate at Attica Correctional Facility, who sued the state of New York and other parties (the governor, the department of corrections, the commissioner, the prison, the superintendent, and several corrections officers) on the grounds that his exposure to second-hand smoke behind bars constituted cruel and unusual punishment.

The magistrate judge granted summary judgment against Davis. The Supreme Court had said in Helling v. McKinney, 509 U.S. 25 (1993), that second-hand smoke exposure could be the basis of a cruel and unusual punishment claim (that was a 7-2 case, with Thomas and Scalia dissenting). But here, Davis hadn't produced evidence that his exposure to second-hand smoke was unreasonable. Because the magistrate judge disposed of the case on those grounds, he didn't have to reach the subjective element of an Eighth Amendment violation, where Davis would have had to show that the defendants acted with deliberate indifference to his health or safety.

The Second Circuit disagreed, saying summary judgment against Davis (which means he loses without going to trial) was inappropriate here, because there may have been factual questions about the extent of Davis's exposure to second-hand smoke that would require a trial to resolve. The Second Circuit remanded to the lower court to determine (1) whether there were genuine issues of material fact to resolve and (2) whether Davis had exhausted his administrative remedies, as the Prison Litigation Reform Act requires.

The Second Circuit then looked at the subjective prong of the Eighth Amendment analysis, which the magistrate judge didn't reach. The court dismissed Davis's claim against Gov. Pataki because he hadn't alleged Pataki's involvement, and it dismissed Davis's claim against the state, the department, and the prison, and the claims for damages against the individual defendants, because as state actors, they had Eleventh Amendment immunity from suit. But the court remanded all the claims for declaratory and injunctive relief, and the damages claims against the prison officials in their individual capacities, to the lower court.

So nothing's resolved yet; the case may yet go to trial. Whether Davis wins or loses depends whether he can show the subjective element of deliberate indifference; whether he can show substantial exposure to second-hand smoke ("whether society considers the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk"); whether the prison officials have qualified immunity from damages claims in federal civil rights suits (which, note, they wouldn't have in a private prison); and other questions.

Also, the court didn't decide anything important related to actual second-hand smoke exposure; the only interesting part that actually relates to second-hand smoke so far is the fact that second-hand smoke exposure can support an Eighth Amendment claim, and the Supreme Court resolved that in 1993.

 

WHO SHOULD HEAD THE 9/11 COMMISSION? My father says, Tom Clancy.

 

CAN THE USE OF CALLER I.D. VIOLATE FEDERAL PRIVACY LAW? The D.C. Circuit's answer is no.

 

I CAN"T RESIST GLOATING. Kissinger has resigned as head of the 9/11 commission. I blasted Kissinger's appointment as soon as I heard about it. I said we couldn't trust him. Now he's admitted it as well. Don't think for a second that this admission was voluntary, however. Only the disclosure requirements imposed on the commission members forced Kissinger to decide between his consulting business and the national interest. Contrary to what his erstwhile defenders have said, Kissinger hasn't changed. If he really cared about his historical reputation that much, he would've chosen to head the commission rather than protect his clients.

To be fair, however, I made some bad calls as well. On Dec. 1, I wrote that
The NYT and WashPost have offered subtle but still unequivocal criticism of the President's choice. One might even say that such criticism is more effective, since Dr. K has already taken the Times' advice and promised to sever ties with any clients whose interests might be affected by the outcome of the investigation. Still, such a promise is irrelevant. There is no reason to thnk that financial interests will affect Kissinger's judgments. The real problem is his total lack of respect for the public's right to know what their government does, a right he disrespected time again while serving as Secretary of State and National Security Adviser.
Obviously, I was wrong about financial interests not affecting Kissinger's judgment. Also worth noting is that Kissinger promised to sever times with any clients whose interests conflicted with that of the commission, but then resigned once it became clear that he would have to provide evidence that he had done so. I guess the lesson here is that Henry Kissinger is even more dishonest than his harshest critics make him out to be.

On the bright side, Kissinger's resignation leaves room for the administration to appoint a credible director. Not that I have much confidence it will, however. After all, it didn't just appoint Kissinger, but also tried to exempt him from the disclosure requirements that eventually forced his resignation. If I had my druthers, John McCain would be Kissinger's replacement. He'll tell the truth no matter who it gets hurt (and especially if it Clinton and Bush get hurt). But I have a feeling a McCain commission isn't in the cards. As such, I'm going to second Dan Urman's endorsement of Gary Hart and Warren Rudman. Both men are independent thinkers who demonstrated their insight into America's best interest with their recommendation in January 2001 that the new administration establish a Homeland Security Department. If they came up with that idea, they may have some insight into what we should do about the agencies who describe themselves as being in the business of "intelligence".

UPDATE: Apparently, Kissinger isn't taking his resignation well.

 

MISSING THE STORY: Both the NYT and WashPost have in-depth accounts of yesterday's gathering of Iraqi opposition groups. In a manner reminiscient of Kurosawa's Rashomon, the accounts of the respective papers' correspondents are so different that one has to wonder what actually happened. The Times focuses on the Iraqis interest in cultivating relations with Iran and resistance to the prospect of an American military government. The Post focuses on the infighting that is dividing the opposition and preventing any coherent planning ffor postwar Iraq from taking place.

If I were a journalism professor, I would have to give an 'A' to the Post's story and a 'C-' to the Times. If you don't know much about the Iraqi opposition-in-exile, the Times' story leads you to believe that American militarism is driving potential allies into the arms of Iran (which the Times duly informs us is "part of what President Bush has called the "axis of evil"). The real story, however, is that the fragmented Iraqi exiles have become desperate to win back the respect they once had in Washington, but which they lost after the United States recognized just how divided and ineffective the Iraqis are. References to Iran are signs of that desperation. Threatening the US is probably not a good idea, however. As for the opposition's resistance to a US military government on faux nationalist grounds, that is nothing more than a shameless attempt to prevent the US from sidelining the opposition completely. But that's exactly what the US should do. Above all, the opposition is not representative of the Iraqi people in any significant way. It is closer to being a collection of special interests than a democratic forum. Talented opposition figures should be encouraged to serve in the postwar government, but on the grounds of merit, not representativeness.

The fragmentation and selfishness of the Iraqi opposition is a long-standing trend that the Post has done quite good job of covering. As it reported a month ago, the various opposition groups couldn't even agree on a date or venue for the conference. Long before that, the Iraqi National Congress, one of the leading groups was already pressing the State Department to grant it exclusive rights to run the postwar government. As I see it, the best hope for establishing a legitimate government in Iraq will be to have Tommy Franks run it long enough for a new political class to emerge.

UPDATE: Over at the National Review, Amir Taheri puts a more positive spin on the Iraqi opposition.

 

A PROMPT AND GRACIOUS CORRECTION: Rob Morse, who wrote the San Francisco Chronicle column that I noted Wednesday, has published a prompt and gracious correction in his column this morning; I very much appreciate it.
Correction: Because of inexcusable misreading and poor note-taking, in Wednesday's column I took a sentence out of context from Eugene Volokh's article on the Second Amendment in the National Review. When Volokh wrote "Shouldn't courts read the Second Amendment as part of an evolving Constitution?" he was posing a question someone had asked him. He did not endorse the evolutionist perspective, but argued against it.

I apologize.

 

MICHAEL BELLESILES' BANCROFT PRIZE REVOKED: Many of you have already heard it, but just in case you haven't, here's the press release as passed along to me by a trustworthy colleague:
COLUMBIA UNIVERSITY'S BOARD OF TRUSTEES VOTES TO RESCIND THE 2001 BANCROFT PRIZE

PRIZE HAD BEEN AWARDED TO MICHAEL BELLESILES FOR HIS BOOK ARMING AMERICA: THE ORIGINS OF A NATIONAL GUN CULTURE

Contact:
Eileen Murphy, Columbia University
emm2103@columbia.edu
(212)854-5573

Columbia University's Trustees have voted to rescind the Bancroft Prize awarded last year to Michael Bellesiles for his book Arming America: The Origins of a National Gun Culture. The Trustees made the decision. Based on a review of an investigation of charges of scholarly misconduct against Professor Bellesiles by Emory University and other assessments by professional historians. They concluded that he had violated basic norms of scholarship and the high standards expected of Bancroft Prize winners. The Trustees voted to rescind the Prize during their regularly scheduled meeting on December 7, 2002 and have notified Professor Bellesiles of their decision.

The Bancroft Prize, which was first offered in 1948, is to be awarded for works in American history of "distinguished merit and distinction." The selection criteria for the Prize specify that it "should honor only books of enduring worth and impeccable scholarship that make a major contribution to our understanding of the American past." Professor
Bellesiles' book seemed to fulfill these criteria at the time of selection. However, it has since been the subject of substantial debate within the community of American historians that included charges that Professor Bellesiles had committed scholarly misconduct in the use of some of his primary source materials.

In response to these charges, Emory University, where Professor Bellesiles holds an appointment, established a panel of three distinguished scholars from other universities to conduct a review. On October 25, 2002, following this review, the panel issued a report. In it, the panel members found "evidence of falsification" with respect to one of the questions they were asked to consider; spoke of "serious failures of and carelessness in the gathering and presentation of archival records and the use of quantitative analysis" on two others; and questioned "his veracity" with respect to a fourth. They also concluded that he had "contravened" the norms of historical scholarship both "as expressed in the Committee charge and in the American Historical Association's definition of scholarly 'integrity.'"

Columbia's Trustees considered the report of the Emory investigating committee and Professor Bellesiles' response to it. They also considered assessments by professional historians of the subject matter of that report.

After considering all of these materials, the Trustees concurred with the three distinguished scholars who reviewed the case for Emory University that Professor Bellesiles had violated basic norms of acceptable scholarly conduct. They consequently concluded that his book had not and does not meet the standards they had established for the Bancroft Prize.

In making their decision, the Trustees emphasized that the judgment to rescind the Bancroft Prize was based solely on the evaluation of the questionable scholarship of the work and had nothing to do with the book's content or the author's point of view.

 

RESIGNATION DAY. First Law. Then Kissinger. We'll know if my source was right about Lott any minute now ...

UPDATE: Nope. Not enough. Lott still must go.

 

I'M SORRY, BUT I DON'T HAVE TIME to respond to everyone who's emailed me arguing that secession wasn't treasonous and was constitutional. So instead, I'm going to refer you to this excellent article by Akhil Reed Amar. (Disclosure: I was and sometimes still am Professor Amar's research assistant; I helped write this article; and I'm the same Josh Chafetz who's thanked in the second footnote.)

 

HERO OF OUR TIME: Through Virginia, an article on Norman Borlaug, father of the Green Revolution and Nobel Peace Prize winner (not like that last is any great mark of distinction these days, but sometimes they do get it right (but "Peace"???)). Thanks to Glenn for reminding me of an excellent January 1997 article about Borlaug by Gregg Easterbrook in The Atlantic. I reviewed Easterbrook's book A Moment on the Earth in the July 1995 issue of Reason; I only agree with him halfway, but he's definitely (relatively) quite sane on environmental matters.

 

I LIED. I said that I was done talking about Trent Lott. But this post is about him, too. Feel free to skip it if you're all Lott-ed out.

Lott will be holding a press conference this afternoon in Pascagoula, Mississippi. The AP thinks the press conference is to apologize, as does Drudge. But a Republican Party source tells me that Lott is pretty close to being shown the door, and that the press conference this afternoon may in fact be an announcement that he's stepping down. My source told me, however, that nothing had been decided yet for sure.

On a related note, Michele Cottle notes that Lott "led the charge to posthumously restore citizenship status to Confederate President Jefferson Davis" in 1978. I'm sure Lott would argue that Davis stands for a lot more than the defense of slavery, just as some Southerners argue that the Confederate flag stands for a lot more than slavery. And they're right. For example, one thing they both stand for is the single greatest act of treason in American history. Article III, section 3 of the Constitution defines treason as a citizen's "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Of course, what Jefferson Davis and the Confederacy did was precisely to levy war against the United States. (This, coincidentally, makes it so odd that some of the same people who want to outlaw burning the US flag are also very defensive about the Confederate flag which, after all, was the flag of a group that attempted to destroy the Union for which the US flag stands.) So, a question for Mr. Lott and others: what, precisely, do Davis and the Confederacy stand for that is so good that it outweighs both their position on slavery and their act of treason?

 

CHOPPED LIVER: My vote goes to the chopped liver at the long departed Duke Ziebert's in D.C. Mmmm is right. My aunt Sarah, also long departed, made a pretty mean version herself, but sadly I lack the recipe. If the need arises I thus will rely on Mrs. Volokh's recipe as other dishes from her book have proved to be outstanding when I have eaten them in the past.

 

LEFTOVER TURKEY: Embarrassing itself yet again, the EU has refused to even set a date for membership negotiations with Turkey. Accordingly, the NY Times lashed Europe for "a needless and damaging delay" that in some respects is "merely a facade for anti-Muslim prejudice".

Interestinlgy, the Post chose to publish a column by, Jeffrey Gedmin, a Berlin-based analyst who makes a strong case for the difficulty of admitting a nation whose economic and legal structures have so far to go before meeting European standards. Yet even Gedmin acknowledges, with regard to the EU's justification of its decision that "seldom has the gap between rhetoric and reality been as great as now."

One point that has unfortunately been left out of today's raft of articles on Turkish membership is the way in which opening negotiations with Turkey might affect the electoral prospects of Europe's current governments. Knowing that popular support for EU expansion is lacking, European leaders have avoided submitting the issue to public referenda. Ireland, the one nation that has held a referendum, had to hold a second referendum as well after the first expansion proposal was rejected. (Special thanks to Matthieu Vasseur for elaborating this point.)

In the absence of a popular mandate for expansion, Europe's governments know they cannot push much farther without risking a backlash. While, on the one hand, such behavior is thoroughly democratic, it also entails shameless pandering to racist and religious prejudice. While a popular backlash might not result from admitting too many white and Christian nations, admitting one dark-skinned and Islamic one would create a furor. Or should I say "create a Fuehrer"?

In short, Turkey's prospects-- and, by extension, those of democratization in the Middle East -- are being held hostage by Europe's twin domestic crises: First, its inability to broaden and deepen the EU in a democratic manner; Second, its inability to confront the implications of religious diveristy, both in the form of violent Islamic fundamentalism and the racist reaction to it. Thus, at a time when George Bush is visiting mosques and the Turkish electorate has opted for a party that reconciles Islam and democracy, Europe finds itself struggling to balance church and state.

UPDATE: I just ran across a Fareed Zakaria op-ed on Turkey and the EU which I linked to a few weeks back. The key quote is this:
Europeans often complain that America's strategy in the war on terror is one-dimensional. It's all military might with little effort to engage the Islamic world in a constructive way. They point out that unless we help Muslim countries prosper, all the F-16s and Predators in the world won't stop the flow of terror. It's a valid criticism, but the single biggest push that could shift events in this direction lies not in America's hands but in Europe's. And Europe is about to blow it.

 

HIGADO PICADO is Spanish for "chopped liver". That is pure trivia. It is profoundly significant, however, that the best chopped liver in NYC can be found at the 2nd Ave. Deli. While the Deli does have an excellent mail order service that allows customers from Missoula to Montgomery to sample its kosher delights, chopped liver is apparently too delicate to be included on the mail order menu. As such, I have often served as a personal courier for this legendary Deli delight, taking containers of it on planes with me as I have traveled from Naragansett to New Mexico.

In contrast to Henry Kissinger, who seems to have problems disclosing conflicts of interest even America's national security is on the line, I freely admit that my evaluation of the Deli is hopelessly biased. I have known the Lebewohl family, owners of the deli, since I was the size of a matzah ball. Abe, the Deli's founder and a much beloved man on lower 2nd Ave., was tragically killed one morning in the process of depositing his receipts in the bank. His brother Jack took over the Deli, however, and it continues to be a living memorial to the fallen. I have taken friends from America, Hong Kong and El Salvador to eat at the Deli with me, and their praise has been unanimous. But even if you can't trust my opinion, you should know that Zagat has rated 2nd Ave. as the No. 1 deli in New York. Mazel Tov!



Thursday, December 12, 2002

 

CONSERVATIVES AND PUNITIVE DAMAGES: Again through Howard, Edward Lazarus seems to think that conservative justices think the Eighth Amendment bars punitive damages:

The conservative justices believe that the Eighth Amendment to the Constitution places strict limits on punitive damages against companies yet virtually no limits on punishing criminals. [New judicial nominees should be asked:] Do you believe, as these justices do, that it is constitutionally "excessive" to award punitive damages of more than four times actual damages, but that it is not constitutionally excessive to put someone in jail for life for stealing a videotape cassette worth roughly $15?

Who are these conservative justices? Well, as Howard points out, it's not Rehnquist, Scalia, or Kennedy, because they joined the majority opinion in Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257 (1989), which specifically held the opposite. O'Connor does think the Eighth Amendment limits punitive damages, but she seems to be alone among conservatives. Thomas wasn't on the court at the time, but he later wrote, in his concurrence for one in Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001):

I continue to believe that the Constitution does not constrain the size of punitive damages awards.

So, basically, only one conservative justice believes the Eighth Amendment limits punitive damages.

It gets even better. Most of the recent (post-Browning-Ferris) Supreme Court decisions about punitive damages don't even involve the Eighth Amendment; it's the Fourteenth, and that's where all the action has been happening. Now, it turns out that Scalia and Thomas don't even think the Fourteenth Amendment limits punitive damages -- they don't like substantive due process analysis at all. O'Connor and Kennedy do think high punitive damages violate the Due Process Clause, and so do liberals Stevens, Souter, and Breyer -- though maybe not Ginsburg, see BMW of N. Am. v. Gore, 517 U.S. 559 (1996). Rehnquist joined Ginsburg in BMW, but that doesn't mean he's against the Due Process analysis -- he joined the majority in TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), so he favors the analysis in principle, he just thinks actually going there can be "unnecessar[y] and unwise[]" because this is "an area dominantly of state concern."

So basically Scalia, Thomas, and Rehnquist frown on questioning the size of punitive damages awards, either through the Eighth Amendment or through the Fourteenth. Just not an area of federal constitutional concern. The left should love them for that.

Back to the Lazarus article -- how sloppy is it possible to get? I can only presume that Lazarus thinks that conservatives like business, therefore conservative justices like to help businesses through the Constitution. Maybe the most conservative justices -- a majority of the majority -- like to maintain the consistency of their constitutional theory more than they like business?

UPDATE: Eddie Lazarus sends me an e-mail acknowledging that he "blew it on the punitive damages question" and "will seek to delete the query from his piece."

 

MMM, CHOPPED LIVER: Howard correctly implies that I'm not chopped liver. However, I enjoy both eating and making chopped liver (and last made a batch for appetizers to Thanksgiving dinner). Here are my two favorite recipes, both from The Art of Russian Cuisine by one Anne Volokh.


Liver and Mushroom Pate
Pashtet iz Pechonki i Gribov
(serves 6)

3 tablespoons unsalted butter
1/2 pound mushrooms, cut into 1/4-inch slices
1/2 pound calf's liver or chicken livers, cut into 1-inch pieces (note: chicken livers are the tenderest of all and produce the softest, fluffiest pashtet)
1/2 medium onion, finely chopped
1/4 pound cream cheese, at room temperature
1/8 teaspoon freshly grated nutmeg (I use ground nutmeg out of the spice jar, of course)
salt to taste

Melt 1 tablespoon of butter in each of three separate skillets. In one skillet, saute the mushrooms over moderate heat for 7-10 minutes. In the second, saute the liver for 5-7 minutes over moderate heat. Saute the onions in the third skillet over low heat for 8-10 minutes, or until golden and limp. Stir the contents of each skillet from time to time during the cooking process.

Transfer the mushrooms, liver, and onions to a food processor, scraping up any browned bits and pan juices, and puree until smooth. Or put through a meat grinder twice. (Note: I only put it through the meat grinder once, it works fine.) Push the mixture through a sieve and discard any tendons. (Note: You don't really need to do this once it's gone through the meat grinder.)

In the bowl of an electric mixer (note: or with a wooden spoon), combine the mixture with the cream cheese, nutmeg, and salt and beat at moderate speed for 2 minutes. Taste for salt, then beat for 2-3 minutes more, or until very fluffy.

Place the pate in a serving bowl and serve at room temperature with lightly toasted white bread. (Note: or not toasted white bread... or crackers... or wheat thins.)

Or, if you want it without the mushrooms and with more liver:

Chopped Liver
Pechonochnyi Pashtet
(serves 8-10)

1 1/2 pounds beef liver, calf's liver, or chicken livers (note: chicken livers are the tenderest of all and produce the softest, fluffiest pashtet)
2 medium onions
4 tablespoons unsalted butter (or 1/4 cup rendered chicken fat, or 2 ounces pork fatback or bacon, cut into 1-inch pieces and rendered in a nonstick skillet for 5-7 minutes)
salt to taste
1/4 teaspoon freshly ground black pepper (note: I use ground pepper from a little box)
1/4 teaspoon freshly grated nutmeg (note: I use ground nutmeg from the jar)
2 tablespoons brandy
2 hard-cooked eggs, peeled and finely chopped
(optional -- I don't use these: parsley sprigs, thinly sliced pickles, oil-cured black olives, and 6-8 baked pastry shells)

Cut beef's or calf's liver into 5-inch squares. Chicken livers need not be cut. Cut the onions in half, then slice each half about 1/4 inch thick. Melt the butter or chicken fat in a heavy skillet and add the liver and onions. Fry over medium heat: 5 minutes for chicken or calf's liver, 7 minutes for beef liver, stirring often. If you use bacon, don't let it turn too dark. Cover, lower the heat, and simmer 5 minutes for chicken or calf's liver and 7 minutes for beef liver. Do not overcook; the liver should be tender and juicy. Remove from the heat and add salt to taste.

Grind the liver, onions, and bacon (if used) twice in a meat grinder (note: I just do it once) or puree in a food processor. Push the mixture through a sieve into the bowl of an electric mixer. Discard the tendons. (Note: I don't do the sieve and tendons thing once it's gone through a food processor once.) Add the pan juices, pepper, nutmeg, brandy, and chopped eggs to the meat and beat at medium speed for 3 minutes with an all-purpose electric beater or for 5 minutes by hand with a wooden spatula. (That's Count Spatula!) The mixture should be very fluffy. Taste for salt.

(All the rest is optional:) Transfer the liver to a decorative serving bowl, shape into a pointed dome, and decorate with parsley, pickles, and olives. For a more elegant presentation, divide the liver among 6-8 baked pastry shells, shape the mounds neatly, and decorate as described. Serve the chopped liver at room temperature.

Chopped liver, or as I like to call it, chicken liver pate, is pure Russian/Jewish soul food and is the yummiest thing!

UPDATE: Reader Joe Socher reminds me that these particular recipes do not represent the traditional Jewish soul, because the first mixes meat and milk and the second contains pork. Well, in the second recipe, the pork fatback or bacon is optional. If you use butter, you're still mixing milk and meat. So I figure if you use chicken fat on the second recipe instead of bacon or butter, it's still kosher, right?

UPDATE 2: Reader Jerome Sternstein says that in 1888, Scotland Yard maintained that Jack the Ripper had to be a "low class Polish Jew," because, they assumed, he was "a butcher who sold chicken livers for chopping." After this information was released, the story goes, Jack sent a letter stating, "I'm not a butcher. I'm not a Yid. Nor yet a foreign skipper. . . Yours truly, Jack the Ripper." The source for this factoid is Stephen & Ethel Longstreet, The Joys of Jewish Cooking 86, which he claims also contains a more authentically lower East Side recipe for chicken livers, involving grieben, the skin from rendered chicken fat.

UPDATE 3: Corinna Hasofferet, in Israel, suggests using olive oil instead of butter/fat/bacon. She says it's healthy and "might counteract some of the liver's unhealthy elements" -- "this organ as you know functions as a sieve. You get the remnants." Corinna also says: "Olive oil is also one of the few things Jews and Arabs agree about with enthusiasm. Use it and feel you've done your share in bringing peace on earth.

 

SECOND-HAND SMOKE SMACKED DOWN: How Appealing points out two recent decisions that are bad news for second-hand smoke. Today, the Ninth Circuit (opinion by Judge Molloy, with Judge Reinhardt sitting on the panel) affirmed the district court in Husain v. Olympic Airways, where the airline was made to pay for the death of a passenger caused by second-hand smoke in the cabin. And yesterday, the Fourth Circuit (opinion by Judge Widener) reversed the district court in Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA; the district court had invalidated an EPA study finding that second-hand smoke was a known human carcinogen.

It turns out that neither of these opinions are especially bad news.


  • In the EPA report case, the Fourth Circuit didn't get to the merits of the second-hand smoke study; it just concluded that the EPA's report isn't subject to judicial review because it's not final agency action within the meaning of the Administrative Procedure Act. Basically, if former EPA Administrator Carol Browner had said, "I think second-hand smoke is a carcinogen," you can't sue her for it; if she tries to regulate you based on that report, then you can sue if the report is somehow defective. The EPA report, which by statute (the Radon Act, not to be confused with Rae Dawn Chong) had no direct legal consequences, was more like Carol Browner talking. The EPA report has been widely criticized as being junk science, and it probably is; the Fourth Circuit just says that though "[s]uch policy statements" may have huge effects in practice to the extent third parties take them seriously, they "are properly challenged through the political process and not the courts."


  • As for the airline case, the "accident" wasn't the presence of second-hand smoke but the stewardess's failure to seat the guy elsewhere when his wife told her he had a respiratory condition. The stewardess's conduct was "unexpected and unusual in light of industry standards," which is what it takes to establish an "accident" in the world of the Warsaw Convention (which governs liability for airline injuries). Now in an ideal world, an airline should be able to offer an "I-won't-reseat-you-if-you're-asthmatic" policy, and it should be able to contract out of the accident liability provision of the Warsaw Convention, but those are big issues that go beyond second-hand smoke. In the current tort regime, there's nothing clearly wrong about this opinion.


So the tobacco industry has to live with the continued existence of an EPA report that may persuade many people to regulate (or at least be less sympathetic to) second-hand smoke, which is unfortunate insofar as its portions on the cancer risk of second-hand smoke are sketchy.

And an airline (not the tobacco industry) has to pay damages in a second-hand smoke case, though the second-hand smoke angle isn't that important here. I don't think anyone denies that heavy second-hand smoke can kill severe asthmatics, and anyway, if the stewardess had reseated the passenger further away from the smoke, there might be no liability here. All in all, doesn't seem like a huge deal.

 

THE BOND MOVIE: The North Korea connection is revealed in the pre-title sequence. Whether you want to see the movie or not depends on how much you like the Bond genre. Perhaps you should watch Goldfinger again instead.

 

HELLO SASHA: I have not yet seen the new Bond film. And now that you've told me how it ends, I'm not sure it's worth my time. Thanks. Thanks a lot. Now to return the favor, let me save you some time. Don't go see the next two Lord of the Rings flicks. Why spend all that money on tickets if you know that Frodo will eventually destory the One True Ring in the fires of Mt. Doom, thereby saving Middle Earth? Oh yeah, and Strider is really Aragorn, the king of men in Middle Earth.

 

DEMOCRACY IN THE MIDDLE EAST: In his September 12th speech at the United Nations, the President declared that the United States is committed to the creation of a democratic Middle East. This statement provoked an extensive and detailed debate (in one corner of the blogosphere) on the prospects for democratization in the Middle East. The optimists argued that American power has the potential to transform the Middle East just it as it did Germany and Japan. The pessimists responded that Islamic culture is a barrier that no American commitment can overcome.

Both sides made strong points and learned a lot, but no consensus was reached. As the participants approached the limits of their knowledge and the debate began to wind down, I proposed that we resume discussion in the late autumn after the publication of the Journal of Democracy's special issue on democracy in the Middle East. The issue is now out, so let the games begin.

(Unfortunately, the contents are available online only to subscribers. Most universities have subscriptions, however. If you live in the real world, you can probably afford the eight bucks for an actual printed copy of the journal.)

Where to begin? With Iran, of course. Not, however, with the ongoing student protests or even the election of Iran's reformist president, Mr. Khatami. Instead, I want to begin with the fall of the Shah and the rise of the Ayatollah Khomeini. This revolution has become the paradigm on which the argument against democratization in the Middle East rests. Sometimes, the presence of the Iranian paradigm is explicit, at other times not. If one strips the revolution down to its fundamentals, one can describe it as in this manner:

The enduring rule of a secular, brutal and pro-American regime led to widespread resentment among the masses. In the absence of a moderate alternative to the ruling regime, the masses accepted the violent message of fudamentalist Islam as the possible response to government repression. When American support for the regime wavered, the masses enthusiastically supported an Islamic revolution. After taking power, the clerics dedicated themselves to promoting fundamentalism throughout the Islamic world as well as sponsoring extensive terrorist actions that targeted both Israel and the West.

Is there any reason to believe that if the United States presses for reform in Saudi Arabia, Egypt or any of its other dictatorial client states, the result won't be the same as it was in Iran? In spite of current indications that Iran is headed in a democratic direction, I do not hesitate to admit that the United States cannot afford to permit similar revolutions to happen elsewhere. If such revolutions took place simultaneously, there is every reason to believe that the new regimes would launch a massive campaign of terror while also promoting additional revolutions in neighboring states. Moreover, the chance that one of these regimes would develop weapons of mass destruction -- and then distribute them to both state and non-state actors -- would be extremely high. If all this were to happen, one would have to say that the United States had lost the war on terror.

In arguing for democracy in the Middle East, I take on myself the burden of showing that the Iranian paradigm is a misleading indicator of what would happen if the United States were to commit itself wholeheartedly to democratic reform. Thus, I cannot make my case in general terms but must instead present strong empirical evidence that the differences between the current Arab dictatorships and pre-revolutionary Iran are greater than their similarities. I don't know if I will succeed, but I am willing to try.

Stay tuned...

 

JUSTICE PREVAILS: The Institute for Justice, where I worked two summers ago, is on a roll these weeks:

  • On December 6, the Sixth Circuit struck down the Tennessee casket monopoly (in what IJ's press release calls the "first federal appeals court victory for economic liberty since it was gutted by the New Deal").


  • On December 10, a federal district judge in New York enjoined the state of New York from enforcing its ban on direct shipments of wine to consumers by out-of-state wineries. (I like the result, but I'd be interested to see more on why this isn't protected regulation under the 21st Amendment.)


  • And yesterday, a New Jersey Superior Court judge ruled that the state's civil forfeiture law, which lets prosecutors and police "keep the money and property confiscated from individuals through the state’s civil forfeiture law," violates the Due Process clauses of the U.S. and New Jersey constitutions.


Well, all of these decisions are appealable (and I suppose they all will be appealed), so don't celebrate too hard just yet, but I'm happy anyway.

UPDATE: On alcohol regulation and the 21st Amendment, see Brandon Denning's Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-first Amendment, and State Regulation of Internet Alcohol Sales, much worth reading. His conclusion: the 21st Amendment was meant to protect the rights of states to regulate interstate alcohol sales in precisely this way, which would otherwise violate the Commerce Clause. But, Brandon says, courts have essentially eviscerated this part of the 21st Amendment -- good for economic liberty but bad interpretation of the constitutional text. I'd still be willing to see whether anyone is willing to defend the opposite side of the debate -- that the 21st Amendment doesn't give states license to violate the Commerce Clause and therefore that IJ is right on this issue.

 

LOTT & THOMAS: Richard Brookhiser makes an interesting connection between the Lott controversy and Justice Thomas' recent comments on cross burning.

 

JUDICIAL IDEOLOGY. The piece that Orin mentions two posts below seems to be pitched as a plea to Senators not to worry too much about the ideology of judges they are asked to confirm. My question is why this advice isn’t pitched to the President. If ideology is of so little consequence in a court of appeals judge, there is no good reason for Bush or any other President to appoint judges who have strong ideologies, or even judges who are thought to be Republican types. Evidently the people who work in the White House don’t subscribe to such a view; evidently they think that ideology can make a difference worth worrying about, since it has informed their selection of judges. So maybe neither the White House nor the Senate should worry about ideology, but if the White House does worry about it, one can hardly blame the Senate for worrying about it as well. Whether ideology matters is at bottom an empirical question with an unsettled answer. If your enemy is convinced that it does, it would be risky to assume that it doesn’t.

 

THE UN-REALISTS: From the end of the Second World War until the mid-1980s, a cadre of scholars known as "realists" dominated the discipline of international relations. Realists insisted that in the struggle for international dominance, power balances power and that conflict is inevitable. While their stranglehold on the discipline began to relax for a complex set of reasons, the decisive blow to their influence was the United States' bloodless victory over Soviet Communism and subsequent consolidation of its role as the lone superpower. The idea that one "pole" in a "bipolar" world might watch passively as its empire crumbled before its eyes was inconceivable to scholars of the realist persuasion. Even more inconceivable was the idea American dominance represented anything more than a "unipolar moment" in a world headed toward its natural state of "multipolarity".

Among active scholars, the most prominent realists are Stephen Walt of Harvard's Kennedy School and John Mearsheimer of the University of Chicago. In the early 1990s, both Walt and Mearsheimer took the bold step of using realist theories of international relations to forecast the political trends of the near future. Walt predicted that NATO would dissolve in the absence of a Soviet threat. Mearsheimer predicted that Europe would return to the competitive power-balancing system of the 19th century rather than continue its march toward a continental union. While such predictions have severely limited the appeal of realism to the current generation of IR graduate students, realism continues to exert a strong influence in the academy because many of its most prominent advocates -- including Walt and Mearsheimer are still relatively young.

One positive aspect of the realist tradition is its practitioners' commitment to using their knowledge to benefit policymakers. As such, Walt, Mearsheimer et. al. have consistently published provocative essays in policy-oriented journals such as Foreign Affairs and Foreign Policy. In fact, Walt and Mearsheimer are the co-authors of an extended essay in the current issue of Foreign Policy which argues that the US is on the brink of waging "An Unnecessary War" against Saddam.

The foundation of their argument is that -- contra Kenneth Pollack -- Saddam is eminently deterrable. However, as is so often the case with academicians-turned-policy analysts, they push their theoretical premises too far. Consider the following passage:
But what if Saddam invaded Kuwait again and then said he would use nuclear weapons if the United States attempted another Desert Storm? Again, this threat is not credible. If Saddam initiated nuclear war against the United States over Kuwait, he would bring U.S. nuclear warheads down on his own head. Given the choice between withdrawing or dying, he would almost certainly choose the former. Thus, the United States could wage Desert Storm II against a nuclear-armed Saddam without precipitating nuclear war.
From a strict logical standpoing this argument is not a bad one. By the same token, one could have argued at the height of the Cuban Missile Crisis that according to strict logic, nuclear war was impossible. Yet no one knew that then and no one knows it now. Real life introduces so many uncertainties into the policymaking process that even the most rigorous predictions derived from the most rigorous theoretical frameworks cannot predict what will happen if there were a nuclear showdown in the Middle East.

Beyond such concerns, it is instructive to take note of what Walt and Mearsheimer leave out of their analysis. First of all, they do not consider the what impact it would have on the credibility of the United Nations if Saddam were found, once again, to have blatantly violated its unanimous resolution calling on him to disarm. While it is not hard to argue that the UN has proven to be more of a hindrance than a help in getting Saddam to disarm, the institution does play a critical role in postwar situations, such as those in Bosnia, Kosovo, Afghanistan and (presumably) Iraq. Moreover, as opponents of using force, Walt and Mearsheimer ought to recognize that the UN is the one institution that has held the United States back from declaring a war they believe to be both dangerous and unnecessary. Unless Walt and Mearsheimer believe that this is the last time the United States will seek to resolve a crisis through the use of force, they should think long and hard before recommending a course of action so devastating to the credibility of the United Nations.

On a related note, Walt and Mearsheimer fail to consider the possibility that a nuclear-armed Iraq would play a leading role in spreading weapons technologies to as many other anti-American governments as possible, a la North Korea. (The authors do consider the possibility that Saddam would provide Al Qaeda with weapons of mass destruction and dismiss it out of hand. Again, their case is strong on logical grounds but doesn't seem to reflect reality.) But if the United States doesn't punish Saddam for developing chemical, biological and nuclear weapons, what would prevent Syria, Libya, Iran, etc. from developing them as well? While, according to Walt and Mearsheimer's logic, such rogue states could be deterred as well, the risk of a nuclear conflict rises precipitiously with each additional state that has such weapons. Besides, if India and Pakistan went to the brink of war despite having nuclear weapons, there is no reason to think that keeping the peace in a nuclear Middle East would be an easy task at all. And in whose lap would the responsibility for keeping the peace in such a situation fall? You know who. Trigger-happy Uncle Sam.

 

JUDGES AND POLITICAL DECISIONMAKING: Howard J. Bashman of the must-read How Appealing blog writes the following about appellate judges in an essay in the Legal Intelligencer:
Somewhere between 60 percent to 80 percent of all appeals are easily resolved because there is a clear right answer that the law compels. In the bulk of the remaining cases, while the right answer may not be as clear, the proper resolution becomes apparent once a judge examines all relevant authorities and considers the questions presented in the context of the overarching framework of existing law.

True, each year, federal intermediate appellate judges do confront a small number of cases in which the correct result is seriously in doubt. Yet such especially difficult cases do not always, or even most of the time, involve pressing social or political issues. And even in such a case - an appeal presenting an intractable, politically charged issue - who believes that an intermediate appellate judge should resolve the matter on the basis of his or her own personal or political policy preferences instead of relying whenever possible on more traditional tools of judicial decision-making?
I much agree with Howard's point, and have voiced the same view in the past. I wonder, though, how much of our common views derive from having served as law clerks on the same court, the U.S. Court of Appeals for the Third Circuit? As a law clerk, it seemed to me that political ideology rarely played an important role in the judges' decisions. Some of the Third Circuit judges had liberal views, and others had conservative views, but all of them showed a strong commitment to trying to resolve cases correctly, without letting their own politics interfere.

     But is the Third Circuit the except on? When I speak with friends who clerked on other circuits, they often report very different experiences. A good number of former appellate clerks have stories of judges voting quite predictably along political lines. So in the end, I agree with Howard, but note that my views reflect my experience clerking for a particular judge on a particular court.

 

DEAD HORSE BEATEN: Amidst the avalanche of posts about Trent Lott, a critical question has been overlooked: What has Strom Thurmond himself said about Trent Lott's remarks? There is nothing on Thurmond's Senate website. If Thurmond wants to be remembered as he is now and not as he was then, he should speak out before his time in Washignton ends.

Oh, and if you really do want more links to articles and posts about Lott, go to Instapundit.

 

ANTI-SEMIOTIC IN EFFECT: Second-hand from The Onion. (But see here and here for mistaken non-joking occurrences of this phenomenon, and see here and here for references to actual anti-semioticism.)

UPDATE: Reader David Haan points out this article, where pro-Palestinian types are protesting WordsWorth, the bookseller, which supposedly "sells words but suppresses words."

 

ANTI-SEMITIC IN EFFECT: How about just "anti-war protesters help Saddam"? "Pro-X," no matter how you qualify it, still connotes that you agree with X's agenda. Calling someone "pro-Saddam in effect" or "anti-Semitic in effect" still sounds like you're calling him "pro-Saddam" or "anti-Semitic," and adding "if not in intent" just makes the whole thing incoherent. "Anti-Semitic," like it or not, has come to mean "disliking the Jews as Jews." Harming the Jews as a class, i.e. supporting a policy that ends up transfering money from Jews to non-Jews, is morally neutral and depends on how they're harmed and why you like the policy. Why add the extra baggage of the name of anti-Semitism?

If we just said "people who favor divestment from Israel are hurting the interests of Jews" or "people who protest the war are helping Saddam," then lots of things clear up. Then we might get into a discussion about why you should care about hurting the interests of Jews (I'm inclined to think you shouldn't care as long as you have a defensible reason for divesting) or why you should care about helping Saddam (I'm inclined to think you should care, even if you have a defensible reason for opposing the war).

 

I PROMISE THAT THIS WILL BE MY LAST POST ON LOTT barring some striking new revelation. I just wanted to laud President Bush for speaking up:
"Any suggestion that a segregated past was acceptable or positive is offensive and it is wrong," Bush said. "Recent comments by Senator Lott do not reflect the spirit of our country."

Glenn thinks that Lott will announce tomorrow that he's stepping down as Majority Leader-elect. That would make sense -- as Kaus says, always announce humiliating news on Friday ...

Oh, and Sasha: point taken. Thanks to your fellow Harvard Law student (and my acquaintance from his days as a Yale undergrad) Henry Whitaker, for making the same point in an email.

 

IN SEPTEMBER, HARVARD PRESIDENT LARRY SUMMERS said that Israel divestment campaigns were "anti-Semitic in their effect if not in their intent." I think that wording is far preferable to "objectively anti-Semitic." So maybe the language Eugene objects to should be changed simply to something like "anti-war protesters are pro-Saddam in effect if not in intent."

 

"OBJECTIVELY PRO-SADDAM": There's some controversy about whether it's proper to call people "objectively pro-Saddam" or "objectively on [Saddam's] side" because their actions in fact help Saddam, even if they aren't intended to. It seems to me that the term shouldn't in fact be used that way.

     The phrase "pro-X" in my experience means "intentionally supporting X," and the term "objectively" doesn't clearly negate that meaning. Here's an example: Imagine someone who supports strong Fourth, Fifth, and Sixth Amendment protections, because he thinks that they're important to protect the innocent, and prevent the government from becoming tyrannical; but imagine that applying this protection in some case would let a criminal go free. I don't think it would be right to call the person "pro-criminal," or even "objectively pro-criminal" (unless the person really does back constitutional protection because he wants criminals to go free). This is so even if exploiting constitutional protections is "a key element in [the criminal's] strategy" (as it might well be for the mafia or other groups that regularly try to take advantage of the limits on government power).

     Likewise, people who support First Amendment protections even for Klansmen and Communists aren't therefore "objectively pro-KKK" or "objectively pro-Communist," whether or not taking advantage of First Amendment protections is "a key element in [the organization's] strategy" or the "key tool of a nasty [political movement]." People who opposed the Vietnam War weren't therefore "objectively pro-Viet-Cong" (or at least many of them weren't), even though U.S. opposition to the war did help the Vietnamese Communists win. I think we'd even hesitate to describe them as "objectively on the Viet Cong's side," or people who support strong Fourth Amendment protections as being "objectively on the criminal's side." They might agree with the Viet Cong or the criminal on this one particular and very important issue (the U.S. should pull out of Vietnam, the police shouldn't search this house for evidence of crime), but not on most other issues (which is what "on X's side" tends to mean).

     These examples, I think, are evidence of my claim about usage: "pro-X" implies actual sympathy with X, and not just a course of action, animated by independent considerations -- whether they be views of international law, pacifism, isolationism, pragmatism, or what have you, whether misguided or not -- that happens to play into X's hands (and this is still true, though less so, of "on X's side"). "Pro-X" means this quite strongly, and thus triggers understandable emotional reactions, both among listeners and among the target; and these reactions aren't neutralized by the presence of the qualifier "objectively." One could imagine a time when "objectively pro-X" means something quite different from "pro-X" (just as, say, "apparently pro-X" or "facetiously pro-X" or "nominally pro-X" means something different from "pro-X"), but I don't think that time has arrived.

     So it seems to me that "objectively pro-Saddam," used to describe people who dislike Saddam but who nonetheless oppose, say, a war against Iraq (and I am certainly not in that category myself), is somewhat unfair, and probably needlessly incendiary. The point -- that they're playing into Saddam's hands -- is worth making, for various reasons. But it seems to me that it's best made in other ways.

 

QUESTION FOR DAVID: Hello David, my fellow blogger. Tell me, didn't James Bond already clear up that whole North Korean thing in the recent movie? Or am I confusing him with Jimmy Carter?

 

JEWS AND BAPTISM YET AGAIN: I fully agree with Eugene on this and add just two minor points. First, I actually find it somewhat endearing that Mormons are concerned enough about my erstwhile soul to try and protect it in a non-intrusive manner after my death. Other religious groups are not so considerate and instead seek to intimidate the crap out of you or otherwise confront and demean you while you are alive in a supposed effort to save your soul. I have my doubts about the true motives of the hell-and-brimstone types, but the Mormons seem perfectly genuine to me. At worst it is no-harm, no-foul; at best they do me a great service.

Second, I would quibble with the comment by Ms. Hasoffertt (quoted in Eugene's prior post) that the reason we require consent for organ donation is to protect the memory of the dead. I think it is instead to protect their property and the property of their heirs. While the law often does not call the interest in the body "property," as a practical matter, that is exactly what it is. My past writings on the subject can be found here. Of course, symbolic baptism performed by the mere reading of a name has no effect on anybody's property.

 

ONTOLOGY RECAPITULATES PHILOLOGY.

UPDATE: This post "spark[ed] a postmodern dance of words that took up much of what might have been a productive workday for" reader Seth Michaels. "Ontology recapitulates philology," he says, "makes a much more overwhelming assertion [than the recapitulation law of embryonic physiology]: that the very structure of reality -- the nature of existence -- is but a reflection of linguistic systems, and indeed specifically of ancient written systems and ancient literature. Derrida would be proud."

 

MORE MORMONS: In other news, my friend Nate Oman, a Mormon, responds to Eugene's post about Mormons, basically agreeing, and clarifying points both about Mormon c