Saturday, September 27, 2003

 
[Eugene Volokh, 9/27/2003 06:53:28 PM]
Steve Bainbridge on conservatives in academia: A very good post from my friend and UCLA Law School colleague.

 
[Tyler Cowen, 9/27/2003 02:11:40 PM]
The new Paul Johnson book: I've started reading Art: A New History, by Paul Johnson, a leading conservative and Catholic public intellectual.

I love it. He starts by telling us: "I write books to educate myself, and my thirst for knowledge about art and artists has been growing since my earliest consciousness." The book offers 752 pages of text, good color plates, unsupportable subjective opinions on just about every page, and a desire to compress everything into a narrative or conceptual scheme of some kind or another. It tries to cover the entire history of art, although it is skimpy on non-Western traditions. This is exactly the kind of product that professional art historians dislike, and I do not doubt that various specialists will pick holes in it. Still, it offers more life and love of art than almost any other book you will find on the topic.

No doubt some of the details may be wrong, but will you remember those details in any case? Probably not. You will, however, be spurred to look at a variety of artworks and art periods with fresh eyes. Isn't that what art books are for? Recommended, and it makes a good present for the holidays.

 
[Juan Non-Volokh, 9/27/2003 07:01:14 AM]
, the subject matter and methodology of conservative scholarship is simply of no interest to those on the left (and probably vice-versa). At schools where there are no tenured conservatives, job candidates and junior professors may be left without a "champion" to help them navigate the process. The lack of right-of-center views at some schools may also make even moderate conservatives appear "kooky" or extreme. By the same token, it is clear to me that many conservatives in academia cry "wolf," or seek to blame political opposition on their failure to succeed in a hi hly competitive environment. Contrary to what some believe, not every conservative's failure to get tenure is the result of politics. Those that do succeed, however, will often work on faculties with few like-minded colleagues.

To conclude, I think the bias against conservatives is real (if overstated) in many parts of the academy, particularly the humanities. Nevertheless, careful and talented conservatives can succeed in the academy if they are willing to become “lonely voices.”

ADDENDUM: I forgot to note that the Conspiracy's own Jacob Levy is quoted in the Brooks piece, suggesting that much of academia is more tolerant than many conservatives might suggest. At some places, such as Chicago, that is clearly true. At others, well . . . let's just say there are reasons some untenured professors blog under pseudonyms.

UPDATE: Eugene's colleague, Stephen Bainbridge, has a thoughtful post on the subejct (and not just because he largely agrees with me). Henry Farrell wonders "what liberal academy?" while Matthew Yglesias acknowledges he was to the right of all of his philosophy professors save Robert Nozick. Meanwhile Brian Leiter suggests conservatives aren't hired in academia because they're stupid.

Friday, September 26, 2003

 
[Eugene Volokh, 9/26/2003 04:28:02 PM]
Restrictions on speech outside abortion clinics vs. speech outside Bush visits: Several correspondents suggested that restrictions on anti-Bush speech outside a Bush visit would be similar to restrictions on demonstrations outside an abortion clinic.

     Well, if the restriction really was like the buffer zones that had been upheld in some abortion demonstration cases -- (1) banned all demonstrations, expressing any viewpoint (pro- or anti-Bush), outside the visit site, and (2) applied only to a small buffer zone (in Schenck v. Pro-Choice Network, for instance, this was 15 feet; in some other cases, 36 feet) -- then I'd have little objection to it. (I'd even have little objection if they required a moderately larger buffer zone, because of the extra security required.) The prohibition on all demonstrations might have a disproportionate effect on some viewpoints, for instance if anti-Bush demonstrators were more likely to want to picket outside the visit; but at least it would be facially neutral. Moreover, the effect would be modest: The demonstrators would just be able to demonstrate across the street.

     But if an ordinance allowed a pro-abortion rally right outside a clinic but not anti-abortion rallies, and required anti-abortion picketers to go a quarter mile away instead, then it would be pretty quickly struck down as unconstitutional. Likewise for the alleged restrictions on anti-Bush rallies that I discussed in my post.

 
[Eugene Volokh, 9/26/2003 03:48:25 PM]
Reader's Digest and my "Dress as a Movie Title" Halloween Party: Jesse Walker reports that p. 115 of the October Reader's Digest describes my Dress as a Movie Title Halloween party idea.

     Unfortunately, they don't give me credit, though Jesse asked them to -- but what can you do. Ideas, copyright scholars tell us, are free as the air to the common use, and I'm pleased that this one is at least getting spread. Hope that quite a few people will use this theme come this Halloween.

     Here's Jesse's account of my 2000 party:

[In 2000,] I went to Eugene Volokh's Halloween party, which had a film theme: you were supposed to come dressed as a movie title. I affixed a halo to a Microsoft baseball cap, and went as Errol Morris' classic documentary, Gates of Heaven.

Most of the guests seemed to think this was pretty good, though several -- far too many -- guessed that I was Angels in the Outfield. Others reversed the title and asked if I was Michael Cimino's western Heaven's Gate (not bad, but the guy's named "Gates"), while a few others guessed Heaven Can Wait. I guess they'd had some bad experiences with tech support.

I'd like to report that I wore the evening's best costume, but there were quite a few people who outdid me:

* A woman adorned with ten peanut-butter logs. She was The Decalogue.

* A heavyset fellow with a tiny doll attached to his shirt. He was Fat Man and Little Boy.

* A guy wearing a copy of the First Amendment. He was Say Anything.

* A woman carrying half a pair of dice and a Viagra pen. She was Die Hard.

* A man wearing a picture of Clinton and a picture of Gore. He was Liar, Liar.< r />
* A man decked in orange with a watch dangling from his pocket. He was A Clockwork Orange.

* A man wearing a calendar page for May 2000 and the cover of a box of Trix. May ... Trix ... yep, he was The Matrix.

* A man with ten sticks of gum and a bag of mints hanging from his neck. He was "ten gum and mints," which, if you squint your ears real hard, sounds like The Ten Commandments.

I figured out some of the tough ones, but stumbled on a couple of costumes that should have been easy. Like the woman dressed in normal street clothes. I made a few guesses: first Ordinary People; then, noting her drink, A Woman Under the Influence. After a few more tries, she took pity on me and mentioned that her mother's name was Rosemary.

"Ah!" I said. "You're Rosemary's Daughter!"

She gave me a look, and I suddenly felt Dumb and Dumber.

 
[Eugene Volokh, 9/26/2003 01:56:56 PM]
ACLU: Several correspondents e-mailed me about incidents of alleged favoritism for pro-Clinton rallies during the Clinton administration, and asked me where the ACLU was there.

     Well, maybe the ACLU was involved in such matters and people didn't hear abot it; or maybe the anti-Clinton demonstrators just didn't call it. I do know that the ACLU has often backed conservative speakers, for instance some students challenging campus speech codes (a few chapters, I think, were on the wrong side of that debate, but I believe that most others were on the right side). There might or might not be a bias at the ACLU in favor of preferring liberals as clients (as opposed to just a higher tendency among liberal speakers, as opposed to conservative s[ealers, in favor of calling the ACLU). But I wouldn't just casually assume that the ACLU was consciously ignoring any attempts to suppress anti-Clinton speech during the Clinton years.

     In any event, though, these questions about whether the ACLU is evenhanded strike me as not terribly helpful here -- they're not illegitimate, but they're just not that important. I was pointing to allegations that the government was violating the First Amendment. If the allegations are factually well-supported, then these violations of the Constitution seem to me to be much more important than any alleged lack of evenhandedness on the ACLU's part.

     If you want to condemn the ACLU for not helping anti-Clinton speakers enough in the past, that's fine (if you really think you have factual evidence that the ACLU has indeed acted this way). But don't let that distract you from the much more significant question of whether the government is acting unconstitutionally.

 
[Eugene Volokh, 9/26/2003 01:46:58 PM]
Viewpoint discrimination and rallies: A few readers have argued that it's fine to separate pro-Bush rallies and anti-Bush rallies just so that each group should be able to get its own message out. (My original post on the subject is here.) Within limits, that's fine; you can certainly say that this park is open to this group, and other groups have to demonstrate across the street.

     But, first, this doesn't quite justify putting the other rally a quarter mile or more away (which allegedly happened in some of the incidents). And, second, this doesn't justify giving preferential position to the pro-Bush rally; if the concern is simply keeping two rallies separate, why not let the anti-Bush demonstrators on the public sidewalk nearest the Bush event, and put the pro-Bush demonstrators further away?

     Again, the ACLU's factual allegations may be incorrect, or they may be incomplete -- but if they're right, then there does seem to be unconstitutional viewpoint discrimination involved.

 
[Tyler Cowen, 9/26/2003 01:40:38 PM]
How much do litigation-related expenses cost the economy? This estimate suggests a total of over $500 billion a year. The estimate does not pretend to be very exact, and we could quibble over the numbers for a long time. (A Google search did not yield a good academic estimate of the total, all effects included, if you know of one please tell me and I will write more on it.)

As the resident economist, I wish to stress two points. First, the amount of money spent does not provide the relevant measure of cost. Some of these payments are simply transfer payments, rather than consuming or exhausting real resources. In other words, don't look at the cost of a settlement, ask what the lawyers would have done with their time. Second, some of these payments induce better behavior, others induce distortionary behavior. These effects, which are especially hard to measure, will be a big part of the true total, and under some accounts they are positive on net, rather than negative. Of course they could be much more positive with a better litigation system, this point is not equivalent to an apology for the status quo.

Note: Many of you wrote me to note, correctly, that corporate law expenditures are by no means focused on litigation, here is my earlier quotation of Daiblog on this point. I am still astonished at some of the gross totals, I might add.

 
[Eugene Volokh, 9/26/2003 01:32:02 PM]
Bushism of the Day: Reader Tom Johnson does my work for me:

Here is today's putative "Bushism of the Day" from Slate:

"I glance at the headlines just to kind of get a flavor for what's moving. I rarely read the stories, and get briefed by people who are probably read the news themselves."

—Washington, D.C., Sept. 21, 2003

Now,

1) If the criticism is merely that there is a grammatical mistake in the sentence, the "Bushism" is no more than a verbal gaffe that any one of us might commit in ordinary speech. This quote is from a Fox News interview with Brit Hume:

HUME: How do you get your news?

BUSH: I get briefed by Andy Card and Condi in the morning. They come in and tell me: "In all due respect, you've got a beautiful face and everything." I glance at the headlines just to kind of [get a] flavor for what's moving. I rarely read the stories, and get briefed by people who are ... probably read the news themselves.

Note that the President's pause, while recorded by the transcript, fails to appear in the Slate "Bushism."

2) Probably the criticism is more general -- that the President of the United States does not bother to educate himself about what is going on in the world. However, the surrounding context clearly demonstrates that the President was making a different point:

HUME: How do you get your news?

BUSH: I get briefed by Andy Card and Condi in the morning. They come in and tell me: "In all due respect, you've got a beautiful face and everything." [UPDATE: Reader Dexter Angelike writes that he saw the program, and the "In all due respect" was actually Bush's aside to Brit Hume -- Bush wasn't joking that his advisers start out by flattering him, but rather was joking that no matter how handsome Hume (the "you" was Hume) might be, Bush is not going to spend time watching the TV news.]< r />
I glance at the headlines just to kind of [get a] flavor for what's moving. I rarely read the stories, and get briefed by people who are ... probably read the news themselves. But like Condoleezza, in her case, the national security adviser is getting her news directly from the participants on the world stage.

HUME: Has that been your practice since day one, or is that a practice you've - -

BUSH: Practice since day one.

HUME: Really?

BUSH: Yes. You know, look, I have great respect for the media. I mean our society is a good, solid democracy because of a good, solid media. But I also understand that a lot of times there's opinions mixed in with the news. And I ...

HUME: I won't disagree with that, sir.

BUSH: I appreciate people's opinions, but I'm more interested in news. And the best way to get the news is from objective sources. And the most objective sources I have are people on my staff who tell me what's happening in the world.

. . . Clearly the President was criticizing the media for its often slanted take on world events, not revealing a lack of concern for current events despite being leader of the Free World. . . .

Source: White House Weekly September 23, 2003, Tuesday (accessed today on Lexis).

 
[Eugene Volokh, 9/26/2003 11:23:13 AM]
Lesbians and discrimination: One reader writes:

Is this one really that hard? I will bet that the military brass against male homosexuals agree with you. Lesbians would be fine, and, in fact, probably better than heterosexual women. However, they also, rightly or wrongly, believe male homosexuals would be harmful. Add in the perfectly reasonable hypothesis that letting in one kind of homosexual (female) raises the probability that you will be forced to let in the other kind (male) due to some gender equity argument, then it becomes a balancing act. . . .

     This is a nice argument, but the trouble is that the military already discriminates based on sex, and in pretty important ways. The most obvious one is the combat exclusion: The military excludes women from combat, but allows men, presumably because for various reasons the presence of women in combat units is seen as posing problems that the presence of men doesn't. They've gotten some flak because of this, I know, but not a tremendous amount; the combat exclusion is still there.

     So the military takes the view that it's OK to discriminate based on sex (against women) when that's relevant to military effectiveness. It takes the view that it's OK to discriminate based on sexual orientation (against homosexuals) when that's relevant to military effectiveness. Why balk at discriminating based on sex within sexual orientation (in favor of lesbians, against gay men) when that's (in the military's eyes) relevant to military effectiveness?

 
[Eugene Volokh, 9/26/2003 07:51:53 AM]
I keep wondering: I mentioned this several months ago, but I still haven't come up with a good answer for it: What's the justification for the military's excluding lesbians?

     The main justification we've been hearing for excluding gay men is that if the soldiers in an all-male combat units have homosexual relationships, this can lead to favoritism, jealousy, and tensions that aren't present if the soldiers are all straight men. But whatever merit this argument may or may not have, it surely doesn't apply to lesbians, at least unless the military starts having all-female combat units.

     What's more, lesbians might actually be more effective than straight women, because I take it that they have a much lower rate of pregnancy; and in a military which is more male than female, they are likely to account for fewer possibly tension-inducing sexual relationships than heterosexual women. Also, if the concern is that homosexual men are more likely to be carriers of sexually transmitted diseases than are heterosexual men, I take it that this concern too will not apply to lesbians.

     The only possible justifications that I can see are (1) heterosexuals might be so appalled by the very fact that a lesbian is a lesbian that they will refuse to work well with her, and (2) straight women might be troubled by showering around lesbian women. These are not ridiculous justifications; a rational military decisionmaker might well worry about this as a matter of unit effectiveness.

     But they hardly seem particularly forceful. Presumably part of the military's role is to instill military values into its soldiers; learning to deal with fellow soldiers even if you disapprove of their private lives -- and surely there are plenty of other things in most soldiers' lives that other soldiers might find appalling -- would presumab y be part of that. And military life regularly requires a vast surrender of privacy, and an enormous amount of mental thoughness, mostly in combat positions but also outside them.

     Finally, as I understand it, the military isn't flooded with an excess of first-rate recruits. Just excluding thousands of potential candidates -- plus investigating and dismissing some experienced soldiers who reveal themselves as lesbians -- is a nontrivial (not vast, but nontrivial) burden on the army's operational effectiveness, which is the stated justification for the homosexual exclusion. As to lesbians, at least, what's the point?

 
[Eugene Volokh, 9/26/2003 07:34:59 AM]
More on viewpoint-discrimination in restricting demonstrations: A reader writes, apropos the Secret Service post below:

Subject: No Basis for Viewpoint Discrimination?

How about this -- anti - Bush demonstrators are largely the hard left, with a history of violence. Witness: the anti-globalism demonstrations in Seattle. Left demonstrators, usually union thugs, often attacked and beat up peaceful anti-Clinton protestors. The violent and extreme left, including various communist organizations is suffused with hate-Bush attitudes, and regularly makes accusations that would seem to justify violence, and sometimes even calls for it.

So, while generally I would agree that viewpoint discrimination is unfair, it may at times be justified. How about a throng of pro-Al Qaeda demonstrators dressed in voluminous robes that could conceal weapons or bombs wanting to get up close to the President?

Two responses:

1. The government generally may not discriminate based on viewpoint, either in traditional public fora such as sidewalks and parks -- where it generally can't even discriminate based on content -- or even in nonpublic fora such as airports (with exceptions not relevant here). It's not enough that there be some rational basis for the discrimination. The discrimination is just not permitted. It might conceivably be permitted if the government passes the very demanding test called "strict scrutiny" (often aptly defined as "strict in theory, fatal in fact"); but mere historical generalizations, even if accurate, about the past behavior of similar groups don't suffice for that.



2. As importantly, if you were a "pro-Al Qaeda demonstrator[]" waiting for the president with "weapons or bombs," it seems to me that you'd be more likely to hide in a pro-Bush crowd than an anti-Bush crowd, precisely because you'd think the Secret Service would be monitoring the anti-Bush crowd more closely. (There ight be a bit more of a chance in the former that someone would try to fight you once you bring out the weapon, or might denounce you if you did something suspicious, but I doubt that this would be greater than the chance that the anti-Bush people are being more closely watched by outsiders.)

So, no, if the facts are as the ACLU alleges, the government action violates the First Amendment, and my correspondent's arguments can't rescue it.

 
[Eugene Volokh, 9/26/2003 06:58:12 AM]
Is Secret Service restricting anti-Bush demonstrations? The ACLU has sued, claiming that this is so:

The suit contends that protesters have been forced into designated "free-speech zones" far from TV cameras and the national media, sometimes behind fences or other barriers. Meanwhile, holders of signs sympathetic to the administration and other members of the public are allowed much closer. . . .

At the news conference, Bill Neel, a 66-year-old retired steelworker from Butler, Pa., said he was handcuffed and arrested for refusing to move to a free-speech zone behind a fence during a 2002 presidential appearance in Neville Island, Pa. Neel was carrying a hand-made sign protesting Bush's economic policies.

Meanwhile, Bush supporters and those without signs were allowed much closer to the rally, outside of "the cage," he said. "Why weren't we treated the same?" he asked. "I thought the United States was a free-speech zone."

According to the suit, cases during the past two years include:

• In Stockton, Calif., protesters at a park rally for a Republican gubernatorial candidate were ordered behind a row of large buses while people carrying signs supportive of Bush were allowed to gather in front of the buses, where event attendees could see them.

• In St. Louis, two protesters at a Bush event who were carrying signs critical of the president's Iraq policy were ordered into a "protest zone" a quarter of a mile away. When they refused, they were arrested. Meanwhile, those supporting Bush were not ordered into the protest zone and allowed to stand much closer.

• At an airport in Columbia, Brett Bursey was arrested for refusing to move to a "protest zone" prior to Bush's arrival for an event. The ar a for protesters was more than half a mile from the area where Bush supporters were allowed to congregate. Bursey, who was carrying a sign that said "No War for Oil," was arrested on state and federal criminal charges. . . .

     If these factual allegations are accurate, then there do seem to have been First Amendment violations here. The government might be able to impose content-neutral laws that keep all large groups of people away from where the President is, though even these laws are subject to substantial First Amendment constraints. But I can see no constitutionally adequate justification for allowing pro-Bush rallies near the President's speech but not anti-Bush rallies, if the rallies are either on government property or on a consenting owner's private property -- that would be viewpoint-discrimination, which isn't allowed either in traditional public fora or even in nonpublic fora such as airports.

     It will be interesting to see what facts come out in the litigation.

 
[Eugene Volokh, 9/26/2003 06:16:40 AM]
SMU affirmative action bake sale controversy: The Curmudgeonly Clerk has more factual details and commentary on this.

     Incidentally, among other things, SMU is also saying that it acted partly because "It is a violation of the University's nondiscrimination policy to sell goods at different prices based on race, ethnicity, or gender." If that were the true reason for SMU's actions, then I wouldn't fault SMU: It would be enforcing a speech-neutral policy that it presumably applies evenhandedly to all groups.

     Of course, it would also help the bake sale organizers make their point, which is that it's wrong to discriminate based on race and sex regardless of which race or sex is being benefited. (Naturally, defenders of race and sex preferences in admission can plausibly argue that the bake sale is different from admissions. Like much public symbolism, the bake sale is hardly a complete, dispositive, logically airtight argument. But at least this would help the organizers shift the burden of public persuasion onto SMU, to explain why discrimination based on race and sex aimed at "diversity" is wonderful, and discrimination based on race and sex aimed at making a political point should be prohibited -- a substantial boost for the organizers' argument.)

     It seems to me, though, that if this were the main reason for SMU's behavior, we wouldn't have seen all this talk by SMU of a "potentially unsafe situation" or a "hostile environment." But in any event, read the Curmudgeonly Clerk's post and the materials it assembles, and see for yourself what you think SMU was really trying to do.

 
[Eugene Volokh, 9/26/2003 06:07:07 AM]
Blogging etiquette: My friend and colleague Steve Bainbridge asks an interesting etiquette question about blogging in public during a conference or meeting.

Thursday, September 25, 2003

 
[Randy Barnett, 9/25/2003 09:06:22 PM]
What Happened to Gridlock? Constitutional law profs and other politicos like to complain about how difficult it is to pass genuinely popular legislation through our archaic system of checks and balances. Then how do we explain the fact that both houses of Congress enacted a statute permitting the FTC to proceed with its Do Not Call list within 48 hours of its scheme being stricken by a federal judge. As reported on Fox News:

In a 95-0 vote, the Senate gave its overwhelming approval of the legislation. Earlier in the day, U.S. House lawmakers also acted to overturn an Oklahoma court's decision that blocked the list. The vote in the House was equally lopsided — 412-8.

Perhaps genuinely popular legislation is not so hard to pass after all? Perhaps the other stuff is harder to enact because significant segments of the population oppose them? Perhaps the country is genuinely divided ideologically and each side is blocking the favored reforms of the other? Perhaps even genuinely popular constitutional amendments would be swiftly enacted as well despite what we hear about how impossible it is? But perhaps the ones that get proposed more often involve ramming something down someone's throat and our system makes that harder to do? But then again perhaps this is just a fluke and does not mean much of anything.

NB: I am not endorsing the Do Not Call statute (so don't write me about what a bad idea it is). I am also not claiming that it is always good to enact genuinely popular legislation. My point has solely to do with the relationship between a measure's genuine, as opposed to its purported, popularity and the speed with which it can be enacted into law.

UPDATE: Michael Van Winkle of the Chicago Report replies here.

 
[Tyler Cowen, 9/25/2003 06:26:42 PM]
A free market in antiquities? I have two fundamental worries about a free market in antiquities. First, at most the market will be free in America. It is not a market with well-defined property rights overall. The original sites themselves are publicly owned in each home country, and are likely to remain so for the foreseeable future. There is a "tragedy of the commons" problem, as people scavenge the sites to resell to collectors. For one example, read this article about how metal detectors are used to invade and plunder battlefields (thanks to Mark Brady for the link).

It is a bit like the fish market. No one properly owns most ocean territory, nor are schools of fish owned in the wild. So there is drastic overfishing in today's world, many fish are on the verge of extinction. Given this fact, there is some argument for a tax on fish, at least until property rights can be improved. We might tax antiquities for similar reasons, or we could restrict the quantity traded by making the market illegal or quasi-legal.

My second worry is whether we could privatize all the sites. It won't happen anytime soon, so the first argument above is really the relevant one. But should we be pushing, in a longer run, for full private ownership of major archaeological sites? Should Mexico privatize Chichen Itza? Should Egypt privatize the pyramids?

The relevant goods are excludable, so I don't doubt that a market solution might meet a narrow efficiency standard. Charge people admission, and no I don't mind if wealthy foreign tourists have to pay $30 to see the pyramids.

I do mind that the pyramids would likely be overrun with advertising. You would have captive eyeballs, and wealthy eyeballs at that. Again, the advertising may well be efficient in ecocomic terms, I just don't think that efficiency is the only value that matters. I would be a kind of site desecration, just like taking away the artifacts. I would rather have a less efficient world, but one where some of the major sites maintain their integrity.

Now this is a tough call. Governments don't always maintain the integrity of the sites they own. But offering a judgment call, I would not put the pyramids on the open market. Plus I think many people would be disturbed by the idea of private ownership of the pyramids, call this an externality of sorts, in that case private ownership might not even be efficient (of course the objectors could try to buy the pyramids themselves, you then get into sticky questions of whether willingness to pay or willingness to be paid is the relevant measure of value, they will differ by a significant amount).

Could non-profits own the pyramids, fund maintenance through donations, and present them in a relatively pristine environment? In this country, yes. In Egypt, I doubt it. So again we are back at a second best argument. The natural custodians of major sites are non-profits, but outside the U.S. non-profits simply are not healthy or free enough to do the job.

What is the underlying problem in all these cases? The market does a great job preserving individual items, better than governments, but markets do not always produce or support the relevant context for the pieces. Read this interesting post, from citycomfortsblog.com, on the question of markets and context.

I would be happy if anyone could talk me out of this position, but right now that is where I stand.

 
[Eugene Volokh, 9/25/2003 01:34:42 PM]
Jonathan Rauch on poverty: "Forget Haves And Have-Nots. Think Do's And Do-Nots." -- very much worth reading, as Jonathan Rauch's work always is.

UPDATE: I originally erroneously linked to a for-pay version; the above version is free until the end of the month. Starting October 1, 2003, use this version.

 
[Eugene Volokh, 9/25/2003 11:40:22 AM]
First Amendment lawsuit against Cal Poly: The Foundation for Individual Rights in Education reports that Cal Poly is now being sued over the Steven Hinkle matter; I won't repeat the details here (I've blogged about them before), but just direct you to FIRE's press release. There are more details here; the tone of FIRE's comments can sometimes seem a bit overheated, but I've generally found them to be quite trustworthy.

     By the way, this seems to be a joint project of FIRE, which was founded by conservative Alan Kors and liberal Harvey Silverglate; the conservative/libertarian Center for Individual Rights; and Carol Sobel, who used to be with the Southern California ACLU. Very glad to see this coalition.

 
[Eugene Volokh, 9/25/2003 11:36:20 AM]
Freedom of Speech and Intellectual Property: My Houston Law Review symposium article on some aspects of this subject is now done, and up here. It touches on some parts of copyright law, trademark law, and trade secret law, but does not purport to deal with some of the big picture things (largely because I hate retreading stuff that others have already covered).

 
[Tyler Cowen, 9/25/2003 11:36:15 AM]
Some call it rap: Eugene is psyched about Quicksilver, but don't neglect the musical event of the year. The new Outkast CD is out. Clocking in at 2 hours, fifteen minutes, it is a brilliant, sprawling mess. The work exhibits an eclectic mastery of all styles, from show tunes to gangsta to jazz to soul to funk to pop. I don't know anything else like it, and you don't need to be a rap fan to like it. Current Amazon sales rank is #1. As this reviewer appears to recognize, we live in amazing times.

 
[Tyler Cowen, 9/25/2003 11:28:50 AM]
Free markets and antiquities, continued: A Mr. Aaron Kendal sent me such an excellent post, arguing for a market in antiquities, that I decided to reproduce it whole:

"After reading your column on the Volokh Conspiracy, I thought I'd offer a few thoughts on the antiquities market. As I am an amateur ancient coin collector, my thoughts are somewhat focused on the numismatic area of the antiquities market, but I believe the analysis can cover other antiquarian items:

A few good arguments for an unrestricted American Market in Antiquities are 1. Scholarship and 2. Preservation of the Antiquities 3. Numerosity

1. Scholarship: Collectors often provide the impetuous for research in the field and gifted amateurs have made real contributions to the body of knowledge surrounding the Ancient World as they publish their collections or study their holdings, or collaborate with one another in research and studies.

In the field of ancient numismatics, collectors have made real and significant contributions to the literature in terms of articles, die studies, and by their publishing and cataloging of collections. For example, Mr. Richard Hazzard has written a seminal work on Ptolemaic Coinage, and he is not affiliated with any University or Museum. Indeed, if one waited for professionals to do the research it may never be done. The Royal Ontario Museum for example, has a collection of around 24,000 Roman Egyptian Tetradrachms, that to the best of my knowledge, still have not been studied or cataloged, and I am sure many other museums are in the same state. Many ancient coin dealer's sale catalogs offer pictures of coins and often offer important research and new finds. Museums on the other hand, typically cannot afford the cost of the full color plates and descriptions to display their holdings in printed form, but here the free market can produce these lasting publications of very rare and histori ally valuable objects.

2. Preservation and Display - many museums around the world are in dreadful shape in terms of their cataloging of their contents (see Cairo Museum as an example). Many artifacts are never shown to the public but merely hoarded by the museums or only offered for view to a few favored donors of the institution. Collectors have an interest in preserving their holdings and will take better care of them than many museums, and often display them publicly at conventions and such. In addition, a free market can help fund additional archaeological digs and studies and thus further enhance our knowledge, rather than the current sorry state where digs are chronically under funded, volunteers pay for the privilege of attending, and the artifacts are boxed away for years out of sight of the public and unobtainable by collectors.

3. Numerosity - To put it simply, there is simply so MUCH material available from the ancient world, that museums could not hold all of it, nor should they have sole claim to it, after all, these goods once belonged to private individuals who are long dead and buried, and there has been no continuous government that could lay claim to the items as their national property, as the nations involved have all been changed over time in terms of peoples, borders and cultures. Go to any of the Ancient Antiquity dealers' sites such as www.harlanjberk.com , or http://www.cngcoins.com/ , or www.amphoracoins.com to name a few and you'll find that many items of the ancient world are surprisingly both common in terms of numbers and affordable. You can get an ancient oil lamp for about $75 or so, or a multitude Egyptian scarabs and Roman Fibulae for even less, or coins of the ancient world from $20 and up. To claim that antiquities are so rare that all must be owned by a governmental entity and warehoused in museums flies in the face of the literally millions of artifacts that exist and have survived, and the millions more still waiting beneath t e earth for a free-market solution to uncover, study and distribute them."

All of these points are excellent, but I still am not willing to privatize all sites, more on this shortly.

 
[David Bernstein, 9/25/2003 09:48:02 AM]
L'Shana Tova: My blogging will be light to non-existent over the next several days, as I observe Rosh Hashana and then make the rounds of New York law schools promoting You Can't Say That! L'Shana Tova (Happy New Year) to our Jewish readers.

 
[David Bernstein, 9/25/2003 09:39:03 AM]
"Cancer Alley": I missed this in the major media, but according to the latest issue of BNA's Expert Evidence Report, epidemiologists have found that there is no greater incidence of cancer in Louisiana's so-called cancer alley (an area with many petroleum and chemical facilities) than in the rest of the country. The purported existence of "cancer alley" was a major factor in one of the great so-called "environmental justice" cases, brought by Tulane law students in a legal clinic to prevent the building of a major Shintech chemical plant that would have brought jobs and a measure of prosperity to a poor, mostly black part of the state.

 
[Eugene Volokh, 9/25/2003 08:16:53 AM]
er as a factor in college admissions. . . .

A black student filed a complaint with SMU, saying the sale was offensive. SMU officials said they halted the event after 45 minutes because it created a potentially unsafe situation for students.

"This was not an issue about free speech," Tim Moore, director of the Hughes-Trigg Student Center, said in a story for Thursday's edition of The Dallas Morning News. "It was really an issue where we had a hostile environment being created that was potentially volatile."

The sale drew a crowd of students outside the student center and several engaged in a shouting match, Moore said.

David C. Rushing, 23, a second-year law student and chairman of Young Conservatives of Texas at SMU and for the state, said the event didn't get out of hand. At most, a dozen students gathered around the table of cookies and Rice Krispie treats, he said. . . .

     SMU is a private university, and is thus not bound by the First Amendment. But I think that they, like other private universities, should nonetheless tolerate and support a wide range of speech by students -- and if they don't, then the public should know that they really aren't committed to academic freedom.

     In particular, it seems to me that a university should deal with threatened violence against speakers -- if that's the "potentially volatile" situation and "unsafe situation" they're describing -- by protecting the speakers against the would-be thugs, rather than by shutting up the speakers and letting the thugs win. And a university that takes the side of the would-be attackers against students who are expressing their viewpoints (and doing so peacefully and calmly, if provocatively) deserves to be condemned.

     Alternatively, perhaps the university wasn't worried about violence as such, but about people being offended -- that's what the phrase "hostile environment" (and its legal synonym, "offensive environment") often refers to. But that simply highlights that this is "an issue about free speech": Is SMU the sort of place where students are free to express their political views on one of the leading ethical, legal, and political issues of the day? Or is this the sort of place where complaints that ideas are "offensive" are enough to shut those ideas down? If it's the latter, then SMU might be a place where classes are taught -- but it's not my idea of what a modern university should be.

     Disclaimer: As always, this post is based on the facts as I have read them, here in an AP story. If there are other important facts that the story misses (and there often are), please let me know. Thanks to readers Jim Killion and Ted Warfield for the pointer.

Wednesday, September 24, 2003

 
[Tyler Cowen, 9/24/2003 06:23:49 PM]
Both numbers are stunning "Tyler Cowen of the Volokh Conspiracy writes :

The number stunned me. Last year trial lawyers pulled in $40 billion from lawsuits, or twice as much as the revenues of the Coca-Cola company.

So here's my question: Is he stunned that the American Lawyer's list of the top 100 law firms (who do mostly corporate defense work) grossed more than $47 billion last year?

Why is only one of these numbers stunning?"

From Daiblog.com.


http://www.daiblog.blogspot.com/

 
[Tyler Cowen, 9/24/2003 02:48:38 PM]
Metal knives are back on planes As long as you only eat with them, and in first class at that. Read this excerpt from Gary Leff's excellent travel blog. (Conflict of interest notification: I work with Gary at George Mason.)

 
[Eugene Volokh, 9/24/2003 12:46:47 PM]
One-stop shopping: A couple of days, I got the following e-mail, with the caption "We sell cocaine and ganja." I think it's a parody (a thought reinforced by the fact that the URL they give doesn't work; UPDATE: Snopes confirms this) . . . . Typos as in original.

. . . Welcome to the site www.carderportal.org, it's us again, now we extended our offerings, here is a list:

1. Heroin, in liquid and crystal form.
2. Rocket fuel and Tomohawk rockets (serious enquiries only).
3. Other rockets (Air-to-Air), orders in batches of 10.
4. New shipment of cocaine has arrived, buy 9 grams and get 10th for free.
5. We also offer gay-slaves for sale, we offer only such service on the NET, you can choose the one you like, then get straight to business.
6. Fake currencies, such as Euros and US dollars, prices would match competition.
7. Also, as always, we offer widest range of child pornography and exclusive lolita
galleries, to keep out clients busy.

Everyone is welcome, be it in States or any other place worldwide.

ATTENTION. Clearance offer. Buy 30 grams of heroin, get 5 free.
Prepay your batch of rockets (air-to-air) and recieve a portable rocket-lacuncher
for free.

www.carderportal.org

This offer won't last! Only until 20th of August all our clients will also recieve
a pack of 2 CDs, with best selection of child pornography. . . .

If it is a parody, as it seems to be, it's actually pretty amusing, in a macabre way.

 
[Eugene Volokh, 9/24/2003 12:42:15 PM]
Was the country indeed founded on the progressive income tax? Rand Simberg writes:

Maybe General Clark Was Right

I've been digging around, and found some quotes to back him up. I can't find any actual cites for them, though...

The, er, evidence is very interesting.

 
[David Bernstein, 9/24/2003 10:34:20 AM]
House Arrest for Arafat? Some of my friends over at the University of San Diego Law School have started a new blog. And in the spirit of Eugene's post about pitching posts and not blogs, the initial post, by Mike Rappaport, suggests that instead of expelling Arafat, killing him, putting him on trial, or leaving things as they are, that Israel instead place Arafat under house arrest under comfortable circumstances. Arafat won't be a martyr that way, but he also won't be able to direct a terror war against Israel. Mike makes a persuasive case.

 
[Eugene Volokh, 9/24/2003 08:59:02 AM]
Please pitch the post, not the blog: I occasionally get notes from people who are announcing their new blog. I much appreciate the information, but it turns out that I'm generally so swamped that I don't think I can just add these to my daily reading lists; and even if I have a moment to look up what's on the blog that day, there's a good chance that it really won't be the sort of stuff that seems likely to be interesting to our readers.

     So let me suggest again that people pitch the post, not the blog. If you think that our readers and I will find a post interesting, please e-mail me both (1) the text of your post and (2) its specific, direct URL, in case I do want to link to it. That way I can very easily read it and see if it's something that seems particularly apt.

     My tentative sense is that other bloggers, both on the Conspiracy and elsewhere, would have a similar preference, though I can't be sure of that.

 
[David Bernstein, 9/24/2003 08:26:12 AM]
New York Speaking Tour: I will be in Manhattan Monday and Tuesday the 29th and 30th speaking to local Federalist Society chapters about my book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. On Monday, I will be at Columbia Law School at noon, at NYU Law at 4:15 pm, and at Fordham at 8:30 pm. On Tuesday, I will be at Cardozo at 1:00 pm. The book is not officially out yet, but I will have a few copies on hand to sell to early birds. The lectures are free and open to the public, so local Volokh Conspiracy readers should feel free to attend.

 
[Tyler Cowen, 9/24/2003 05:37:34 AM]
The number stunned me Last year trial lawyers pulled in $40 billion from lawsuits, or twice as much as the revenues of the Coca-Cola company. For more click here.

I am also pleased to announce that my electricity is again fully normal, I will write more on antiquities soon.

 
[Tyler Cowen, 9/24/2003 05:10:21 AM]
Can natural selection generate suicide bombers? Well, uh, it has. Read this article from Discover.com on the phenomenon. Unlike Robert Pape, this commentator, Scott Atran, does not hesitate to offer us stern advice: "...go after the guys who operate the cells. Take them out. Get rid of them. Jail them or kill them, because they are not willing to compromise."

 
[Tyler Cowen, 9/24/2003 04:48:58 AM]
The successor to the Internet? It is called PlanetLab and enjoys backing from some serious parties. Here is one description:

"The project is called PlanetLab, and within the next three years, researchers say, it will help revitalize the Internet, eventually enabling you to:

forget about hauling your laptop around. No matter where you go, you’ll be able to instantly recreate your entire private computer workspace, program for program and document for document, on any Internet terminal;

escape the disruption caused by Internet worms and viruses—which inflicted an average of $81,000 in repair costs per company per incident in 2002—because the network itself will detect and crush rogue data packets before they get a chance to spread to your office or home;

instantly retrieve video and other bandwidth-hogging data, no matter how many other users are competing for the same resources;

archive your tax returns, digital photographs, family videos, and all your other data across the Internet itself, securely and indestructibly, for decades, making hard disks and recordable CDs seem as quaint as 78 RPM records."

I'll believe it when I see it, nonetheless the article makes for fascinating reading. Thanks to Geekpress.com for the link.

Tuesday, September 23, 2003

 
[David Adesnik, 9/23/2003 09:08:21 PM]
AT MIDNIGHT, A PUMPKIN: The digital clock on the lower right-hand side of my monitor just turned to midnight. Thus, the time has come for me to return from whence I came, once again becoming a humble OxBlogger rather than a proud member of this Conspiracy.

Then again, if Gene resides in Pacific Daylight Time, then maybe I am entitled to three more hours of Volokh fun. Actually, I need to go to bed in a little while, so I don't really intend to take advantage of this overtime despite my inclination to do.

In parting, I will say this: Come visit us at OxBlog! New readers are always welcome. If you like what you've read on this site over the past couple of days, there is plenty more of it available. Everyone knows that Eugene & Co. have some of the most intelligent and insightful readers out there, so it would be an honor to have you visit some time.

All the best!
-David

 
[Eugene Volokh, 9/23/2003 09:03:26 PM]
Work? Blogging? Sleep? Or Quicksilver? I say Quicksilver.

 
[David Adesnik, 9/23/2003 09:00:05 PM]
MISS HARVARD = MISS AMERICA? Believe or not, Miss America will be enrolling next fall at Harvard Law School. I guess she was so used to being around superficial ego-driven overachievers that three more years of it didn't seem like much of a sacrifice. (Yes, Urman, that was a cheap shot.)

In addition, the winners of both the Miss Rhode Island and Miss Virginia pagaents graduated from Harvard, Class of '03. Impressively, Laurie Gray

graduated summa cum laude and Phi Beta Kappa with a degree in biology, and plans to attend medical school after her tenure as Miss Rhode Island is completed...

[Nancy] Redd became Miss Virginia in June, after making a name for herself around the country by raking in $250,000 on the television show “Who Wants to Be A Millionaire.”

I guess it's good for Harvard to have all these beautiful women around, since it undermines the stereotype of Harvard women -- as well as smart women in general -- of being less than attractive. On the other hand, the past three weeks at Harvard were beginning to persuade me that there is a grain of truth in every cliche...

For those of you already at Harvard, I'd say that the gym is the best place to discover beautiful women. While a certain logic might dictate that frequent visitors to the gym tend to be those who need to take off a few pounds (myself being Exhibit A), I think the opposite applies to women, especially at Harvard. Here in Cambridge (as opposed to Oxford), it is precisely those women who have already achieved physical perfection that visit the gym in order to preserve their perfect muscle tone.

In short, if you go the gym, you can look forward to your eyes getting a work out as well as the rest of you.

 
[Josh Chafetz, 9/23/2003 04:04:10 PM]
AN HISTORIC DAY: One of the American League's most prestigious records has fallen. A Major League record seems not far off. Detroit must be so proud!

 
[Patrick Belton, 9/23/2003 03:22:09 PM]
A SAD DAY IN THE MILILTARY: Two days after Army Captain James Yee (Chaplain Corps) was arrested under suspicion of espionage, Air Force Senior Airman Ahmad Al Halabi was charged under four counts of espionage, three of aiding the enemy, and 25 other counts. This is sad news. See CNN, Independent, BBC.

For a much better spy story, read about Nathan Hale. (Hale, however, according to a newly discovered manuscript got himself caught by talking too much. Fortunately, his successors in today's government service are about the only folks in Washington with interesting work that they do their best to make sound boring.)

 
[Jacob Levy, 9/23/2003 03:14:03 PM]
By the way: I haven't forgotten my promissory note-- now at least a day past due-- for a big communitarianism-and-exploitation post. Working on it-- but working on work, too, and this is the time of year when certain parts of work become scheduled and fixed, not flexible and fungible.

Speaking of which: welcome to Chicago, to all the new students arriving this week...

 
[David Adesnik, 9/23/2003 02:53:26 PM]
KNOW-NOTHING JOURNALISM: Glenn Reynolds notes that a bipartisan delegation from the House Armed Services committee has taken the media to task for their biased reporting about the occupation of Iraq. Plus, there's a related story in USA Today.

 
[Patrick Belton, 9/23/2003 02:51:50 PM]
BLOGGING, THE FINAL FRONTIER: I've been musing about frontiers lately, partly as I've crossed one recently when my lovely wife and I moved back to Oxford to finish our doctorates (thereby officially becoming for legal purposes an academic refugee), and largely because my mother-in-law, Judith Kleinfeld, has been scribbling away busily for the last year on her new book on frontiers, which has just hit the stands. I have quite a high bar of scholarship to live up to in my new family, since this is the same Judy Kleinfeld whose research debunking Stanley Milgram's Six Degrees of Separation has been covered in the New York Times, though she is as yet silent on the Six Degrees of Kevin Bacon. (Mr Bacon's Associate Degrees, incidentally, have spawned a computer database at UVa. - which have produced the useful social science that the average "Bacon number" for the actors in the database is 2.946. What this low number in turn implies for Hollywood mating patterns is well, well beyond the scope of this post.)

Frontiers, however, are within its borders. And perhaps it is in the United Kingdom, which shares many defining features with the United States but lacks the frontier narrative (besides the colonial past which it has discredited and, for most purposes, forgotten), that the results of frontier on national psyche are most palpable. Frederick Jackson Turner certainly thought as much. Spurned by the Census Bureau's 1890 declaration that a definable and contiguous "frontier line" no longer existed, Turner's 1893 "The Significance of the Frontier in American History" traced to the frontier experience the American traits of individualism, a pr ctical and inventive disposition of intellect, an inveterate optimism, and moral directness. Other scholars have done the same for American religiosity - when you're thrown into a Wild West environment and the need to engage in risk-carrying transactions with total strangers, you're darn likely to look for some proxy of trustworthiness.

Turner's argument usefully subverted the course of American historiography to that point - where history to that point had largely neglected the West by viewing America as Europe transplanted, Turner showed historians - and citizens - how the frontier experience could be clothed in a new dignity. Subsequent scholars closer to our time have rightfully pointed out its flaws - notably, the absence of women and minorities from Turner's stage. More subtly, Yale historian Howard Lamar, who followed in Turner's footsteps as a historian of America's frontier, reminded us that Turner's dichotomization of the two experiences emphasized a discontinuity between a rural past and an urban-industrial future which may not have reflected reality. Not all who followed him have rejected him, however - see, for instance, Bellah's poignant evocations of cowbows and private eyes as tragically heroic, distinctively American characters in Habits of the Heart.

More importantly for present purposes, though, the distinctive traits of frontier are easily lost. The chasm which the late 1960s drew between coastal America and the moral validity of the Madisonian, Wilsonian, and Toquevilian moral principles on which the United States was erected has left much of the country closer in many respects to the Europe from which their ancestors were driven than to Wilson and Madison, and vaguely embarassed about being American, whatever it is that that means. The frontier's brighter traditions of optimism, hardiness, and tolerance and benevolence toward neighbors and strangers provide useful and needed corrective. And on this point, I would like to bring back my mother in law (how often is it that a son-in-law ever says that?). Kleinfeld's book closes in that distinctively American genre of self-help - pointing out in that vein the translatability of normative fruits of the frontier experience to cities and plains alike, encouraging latter-day urban and suburban pioneers to seek underpopulated areas of endeavor in which they can enjoy easier entry, less competition, and improved odds of success, as well as developing resourcefulness, broadening their universe of experience, and escape the damaging expectations of others. But it is self-help which draws more from Turner than from Freud, and hews more to American hardy optimism than to psychoanalytic paralysis. And so, she has convinced me - America, to remain true to its own brighter ideals, must remember its own frontier narrative. And thence onward gallop.

 
[David Adesnik, 9/23/2003 02:43:35 PM]
ECHO CHAMBER IN ACTION: Josh Marshall seems to have caught the right-wing media red-handed in a disingenuous effort to discredit Wes Clark. What Marshall seems to miss is that such conspiracies aren't all that important given that Clark is doing such a good job of discrediting himself.

NOTE: OxBlog's permalinks don't seem to be working at the moment. #$@%& Blogger! If you're that interested in finding out how Wesley Clark made a fool of himself, just go to our homepage and search for "Clark".

 
[David Adesnik, 9/23/2003 02:38:19 PM]
CARTER SPEAKS: About Israel and Palestine. You can read it. Or you can skip it, since you already know what it says.

 
[Josh Chafetz, 9/23/2003 02:18:20 PM]
HELP DAN OUT: Dan Drezner is looking for journalists, columnists, commentators, producers, or editors for newspapers, magazines, and television stations (do freelancers count?) to answer five quick questions for an academic paper he's co-authoring on "the power and politics of blogs." He promises anonymity, and the questions look like they'd take no more than 10 minutes to answer. So go help him out, if you fit the description above!

 
[David Adesnik, 9/23/2003 02:09:05 PM]
DISTURBING: In a remarkable column, David Ignatius describes his attendance at a Hezbollah conference, where he came face to face with the apalling fact that

Hezbollah believes that the Islamic forces arrayed against Israel are winning -- thanks to the carnage wrought by suicide bombings. These "martyrdom operations," as Hezbollah prefers to call them, are often seen in the West as a tactic of desperation. But the leaders of this Lebanese Shiite militia view them as a successful weapon that has put Israel on the defensive...

This stark assessment makes clear that suicide bombings are part of a very deliberate strategy. They aren't driven by poverty, neglect, irrational fanaticism or the other factors Westerners often cite. They are motivated by a belief that killing Israelis will bring military victory.

So much for root causes. Anyhow, Ignatius' column adds some perspective to Robert Pape's recent argument that suicide bombings are the product of rational calculation, not ideology.

As I said yesterday, Pape is half right: terrorists think rationally when it comes to achieving their objectives. But if ideology is irrelevant, why don't terrorists have any qualms about killing innocent men, women and children?

Clearly, it isn't an either-or choice between rationality and ideology. It almost never is. Yet for as long as political scientists insist on searching for "parsimonious" theories of international relations, their work will remian fatally out of touch with reality.

 
[Patrick Belton, 9/23/2003 02:07:15 PM]
A LETTER FROM BAGHDAD: A good friend of mine (and fellow foreign policy society member) has just arrived in Baghdad, where he's taking a go at restarting the Baghdad Stock Exchange. He emailed a group of friends a letter about his thoughts in his first few days of serving in the transitional administration, and Tech Central Station has posted the email. Good luck, our friend, and Jazak Allah Khair - may your good work be blessed with success and rewarded.

 
[Patrick Belton, 9/23/2003 01:49:34 PM]
SHE WAS ONLY HERE ONE NIGHT BUT SHE LEFT THE PLACE A SHAMBLES: Yes, Izzie sounds like one of my ex-girlfriends, but she's a hurricane. This just in from OxDad, who lives in a Virginia city known chiefly for its pretensions as an erstwhile national capital:

Patrick, we have been on generator and bottle water since Thursday. We have 8 trees down in our yard, bricks were pulled off the house on the side where the power lines were connected and our block looks like a jungle, several houses in the neighborhood have trees in their houses now with much damage. "Mom is very up tight." (ed.: why the quotes? Does that mean your father's in the doghouse? Hmm, I'm not really sure. ed.: that's okay, I'll just go away now and back to reading my copy of Academic Legal Writing)

As the InstaOutage-ometer shows, metropolitan Richmond and Tidewater are still fairly hard hit with outages, with 212,439 Richmond-area customers and 272,106 Tidewaterians having candlelight dinners tonight. Oh well, there are up sides to everything!

 
[David Adesnik, 9/23/2003 12:14:07 PM]
TODAY AT THE UNITED NATIONS: I strongly recommend reading the full text of today speeches by President Bush, President Chirac, and Secretary Annan. Only by reading the texts can one understand just how misleading the NYT and WaPo (yes, the WaPo) accounts of today's session were.

To begin with, there is a quick laugh to be had by comparing the NYT and WaPo ledes for the UN story. The WaPo informs us that

President Bush got an earful of complaints from world leaders today but responded with a mild defense of his actions in Iraq and an understated request for U.N. help.

In contrast, the NYT reports that

President Bush challenged the United Nations today to put aside its sharp differences over Iraq and to help the Iraqi people build a peaceful and democratic country on a timetable that made sense to them.

But he stoutly defended the United States' rationale for the war.

"Stout" vs. "mild". An "understated request" vs. a "challenge". In my role as armchair referee, I'm going to call this one a split decision: Bush's defense of the war was absolutely unaplogetic. But his request for help in Iraq was understated.

Conveniently, the WaPo avoided quoting Bush's statement that

The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away. If such a danger is allowed to fully materialize, all words, all protests will come too late.


Nations of the world must have the wisdom and the will to stop grave threats before they arrive.

In short, pre-emption is still the American way of war. Arguably, the WaPo left this out as a favor to Bush, trying to make him look more moderate and statesman-like in the eyes of the American public. Yet if that were the case, why did the WaPo irresponsibly exaggerate the degree of anti-American criticism at today's session?

As Dana Milbank reports,

U.N. Secretary General Kofi Annan, in an unusually impassioned and sharp condemnation of U.S. policy, said "unilateralism" was an assault on the "collective action" envisioned by the late president Franklin D. Roosevelt and the other U.N. founders.

In a heartening display of unity, the NYT also made it sound as if Annan had nothing good to say about US foreign policy. But what about the following quote from his speech? As Annan said, there is an

urgent need for the [Security] Council to regain the confidence of states and of world public opinion, both by demonstrating its ability to deal effectively with the most difficult issues and by becoming more broadly representative of the international community as a whole, as well as the geopolitical realities of today. The Council needs to consider how it will deal with the possibility that individual states may use force preemptively against perceived threats. Its members may need to begin a discussion on the criteria for an early authorization of coercive measures to address certain types of threats; for instance, terrorist groups armed with weapons of mass destruction.

Wo-wo-whoa! Is Kofi Annan saying that the Security Council should consider authorizing pre-emptive action in certain cases? Sounds like it to me.

Now what about Chirac? Did he contribute to the "earful of complaints from world leaders" that the WaPo focused on? Answer: No, not really. Does that mean he wasn't thinking bad thoughts George W.? Answer: No, not really. But unless reporters can read minds, they might w nt to consider sticking to the facts.

While Chirac did go on for quite a while about the virtues of multilateralism, his specific remarks were surprisingly conciliatory. Consider the following:

Given the proliferation of weapons of mass destruction, we reject the policy of fait accompli. We must stand united to guarantee the universality of treaties and the effectiveness of nonproliferation regimes. In order to ensure compliance, we need also to develop our means of action. France has proposed the creation of a permanent corps of inspectors under the authority of the Security Council. Let us give fresh impetus to that policy. Let us convene a summit meeting of the Security Council to outline a true plan of action of the United Nations against proliferation.

For the present, let us demand that North Korea completely, verifiably and irreversibly dismantle its military program. Let us demand that Iran sign and implement, unconditionally and without delay, a strengthened nuclear safeguards agreement with the IAEA.

Given that Bush held back from even mentioning either Iran or North Korea by name, I think Chirac deserves considerable credit for his stand. Are his words any guarantee that French action will be as decisive as Chirac's words might indicate? No, of course not. But on the other hand, Chirac could have announced that France had decided not to cooperate with American efforts at the Security Council until the Bush Administration showed greater respect for multilateral institutions.

That's the news, folks.

 
[Eugene Volokh, 9/23/2003 12:07:09 PM]
ACLU and recall litigation: The ACLU has apparently decided not to ask the Supreme Court for review or for a stay. Makes sense, given that the chances of getting the Court to block the election were virtually nil.

UPDATE: Rick Hasen, at the Election Law blog has the ACLU press release.

 
[Eugene Volokh, 9/23/2003 11:52:09 AM]
More survey bunk: The Courier-Mail, which judging from its logo is based in Queensland, Australia, reports that:

MORE than 17 per cent of Australians are involved in gay or lesbian relationships, putting the country equal first in the world for its proportion of homosexuals, according to a new worldwide survey.

Uh, not so fast: The sentence unfortunately omits the important qualifier before "survey," which is "and utterly unreliable and unscientific." If you look at the very last sentence of the article, we see "The company said more than 150,000 people took part in the on-line survey, which was now in its seventh year."

     D'oh! That old "on-line survey" trick gets them every time. An on-line surveys doesn't measure the behavior or even the responses of "Australians" generally, but only of those Australians who responded to the on-line survey. Because the survey doesn't involve a randomly selected sample of Australians, but only those who volunteered to participate, there is no reason to assume that there's any relationship between what the survey measured and what Australians generally actually do.

     Repeat after me: I will not believe generalizations from on-line self-selected surveys. I will not believe generalizations from on-line self-selected surveys. I will not believe generalizations from on-line self-selected surveys. . . .

     Thanks to Todd Seavey for the pointer.

 
[David Bernstein, 9/23/2003 11:45:24 AM]
Waiving Dessert Liability:

In an attempt to make a law professor in the other Washington look silly, a popular restaurant here is requiring customers to sign a liability waiver before they eat a fat-by-design dessert called The Bulge.
THE WAIVER, a semi-serious gimmick that might be the first of its kind in the United States, is displayed in poster-sized dimensions near the front door of the 5 Spot, an eatery on Seattle’s affluent Queen Anne Hill.
“I will not impose any of sort of obesity-related lawsuit against the 5 Spot or consider any similar type of frivolous legislation created by a hungry trial lawyer,” the release says. After a diner signs it, a waiter hauls out a sugarcoated, deep-fried, ice cream-swaddled, caramel-drizzled, whipped-cream-anointed banana.

Thanks to my friend Nathan Horwitz for the pointer.

 
[Eugene Volokh, 9/23/2003 11:42:33 AM]
Politics of recall decision: Larry Solum points out:

[B]ecause the decision was unanimous, and the panel included both Democrats and Republicans, the en banc decision will undercut any claim by the plaintiffs that they have been the victim of a decision based on low politics.

 
[Jacob Levy, 9/23/2003 11:41:08 AM]
Come see Conspirators! This is especially, but not only, for New England-area undergrads. Co-conspirator Randy Barnett and I will be two of the speakers at a seminar at Brown this weekend, "Free Your Mind," co-sponsored by the Institute for Humane Studies. Other speakers include Tom Palmer, Wendy McElroy, John Tomasi, David Schmidtz, and Michael Munger. Registration is free but required in advance.

 
[Eugene Volokh, 9/23/2003 11:11:42 AM]
Recall decision: The Ninth Circuit's unanimous en banc decision that lets the recall go forward on Oct. 7 is here. My prediction: The Supreme Court will not get involved, and the election will go forward as scheduled.

 
[Randy Barnett, 9/23/2003 10:48:29 AM]
Analysis of Today's Recall Decision: Larrry Solum analyzes today's recall decision of the 9th Circuit here. It includes excerpts from the opinion and links to commenatary and reporting.

 
[Randy Barnett, 9/23/2003 08:51:31 AM]
Second Amendment Litigation Strategy: If you have any interest in gun rights and the Second Amendment, you should read Dave Koppel's analysis of Second Amendment litigation strategy, The Silveira Threat: How long will the Second Amendment live? in today's NRO. This is the second of a two-part analysis, the first part of which is called Secret Weapon: Some 2nd Amendment lawyers help the gun-ban side. Dave's analysis is a compelling and stinging rebuke of the wisdom of having pursued and continuing to pursue the case of Silveira v. Lockyer. Today's installment opens:

Silveira v. Lockyer is a Second Amendment lawsuit which has, according to Gun Week (Sept. 1) "gained almost cult status among gun owners." This status is mostly to the benefit of the gun-prohibition lobby, for Silveira has already seriously harmed Second Amendment rights, and the damage may not be over.

Both installments--but especially today's--are a must read for gun rights advocates. For opponents of gun rights, it will make your day.

 
[Josh Chafetz, 9/23/2003 07:46:26 AM]
STUPID PARLIAMENT TRICKS, OR ATTORNEYS BEWARE: As those of you who reguarly read OxBlog know (and to the rest of you: for shame!), I occasionally post on something I come across while doing my dissertation research. There are several reasons why I do this: (1) there are some pretty amusing anecdotes from parliamentary history; (2) most people have never heard those anecdotes before; (3) it's guilt-free blogging -- I can tell myself that I'm doing research, not procrastinating; and (4) on the off-chance that my advisor reads my blog -- *shudder* -- it convinces him that I really am doing work.

Anyway, as I've noted before, one thing the House of Commons really used to enjoy doing was throwing people in the Tower of London. Occasionally in Newgate (another prison), but mostly they went for the Tower. And -- co-Conspirators beware -- they especially seemed to enjoy locking up lawyers. Lawyering used to be a somewhat more hazardous profession ...

Take the famous 1704 Ashby v. White case. It dealt with a disputed election -- Ashby had the right to vote, but White (the mayor of Aylesbury) and some constables refused to count his vote. Ashby sued, lost before the Queen's Bench on the grounds that only the House of Commons had jurisdiction over disputed elections (the great Chief Justice Holt dissented), but then won on appeal before the House of Lords. The House of Commons then held Ashby in contempt of Parliament and found him in breach of the privileges of the House, although they declined to imprison him.

Ashby's victory before the Lords inspired a number of other freeholders of Aylesbury, who had also been illegally disfranchised, to file similar suits. Unfortunately for them, at the same time that it held Ashby in breach and contempt, the House of Commons also passed a resolution read ng,

Resolved, That whoever shall presume to commence or prosecute any action, indictment, or information, which shall bring the right of electors, or pesons elected to serve in parliament, to the determination of any other jurisdiction than that of the House of Commons, except in cases specifically provided for by act of parliament, such person and persons and all attornies, solicitors, counsellors, serjeants at law, soliciting, prosecuting, or pleading in any such case, are guilty of high breach of the privilege of this House.

(Bear in mind that this resolution was not a law -- a law must be passed by both Houses of Parliament and accepted by the Monarch, and this is back when the Lords and the Crown still had some power.)

All of the post-Ashby plaintiffs, along with their attorney, were thrown into the Newgate prison. So, they did what any good English subjects would do and filed a petition for a writ of habeas corpus. The House of Commons was displeased:

Resolved, That whoever has abetted, promoted, countenanced, or assisted the prosecution of the several Writs of Habeas Corpus, brough for the prisoners committed by this House, and since their being remanded, have endeavoured the procuring of Writs of Error, are guilty of conspiring to make a difference between the Lords and Commons in parliament assembled, are disturbers of the peace of the kingdom, and have endeavoured, as far as in them lay, to overthrow the rights and privileges of the Commons of England in parliament assembled.

The House then appointed a committee to figure out exactly which attorneys had worked on the case. It came back with five names. The House found them all guilty of breach of privilege, and ordered its serjeant-at-arms to arrest all of them. The serjeant reported back that he couldn't find three of them, that one of them -- Nicholas Lechmere -- "got out of his chamber in the Temple, two pair of stairs high, at the back window, by the help of his sheets and a rope," (lawy rs apparently had to be in better shape back then) and that the fifth, who was in custody, had shown him a resolution by the House of Lords granting all five the protection of the upper house.

Neither House was willing to yield, and the deadlock was only ended by an order from Queen Anne proroguing Parliament.

UPDATE: Based on a rather annoyed email, I suppose I need to point out that the title "Stupid Parliament Tricks" was meant to be humorous, a play on Letterman's "Stupid Pet Tricks." I don't think that parliamentary privilege is stupid -- if I did, I wouldn't be writing a 300-page dissertation on it. I do think, however, that jailing attorneys for filing habeas petitions actually is stupid. Whether those petitions should have been granted or not is another question.

ANOTHER UPDATE: Prorogation is an order by the Crown ending a session of Parliament. Anyone imprisoned by the House of Commons is immediately freed upon a prorogation. A prorogation is not a dissolution -- a prorogued Parliament can (and usually does) meet again without an intervening election. The ultimate outcome, then, was that neither House won the principle involved, but at least the lawyers got out of jail.

 
[Eugene Volokh, 9/23/2003 06:33:55 AM]
"The dog that didn't bark": Kevin Murphy writes:

Finally was able to watch the argument in the 9th Circuit, and I think I can prove that they will hold against a postponement until March.

Not one judge asked any questions regarding the letters from the Sacramento and Los Angeles County Registrars, which separately stated that they would be very hard pressed to hold a combined election in March. If there were even a tiny interest in forcing a postponement until March, certainly the hardship issue would have to be addressed. It wasn't, so a March recall -- never mind everything else, seems highly unlikely.

Note that this does not mean the propositions cannot be postponed -- there's a big difference between 2 questions, and 135+1, being added to the March primary.

Nor does it mean that the recall couldn't be postponed a few weeks, although listening to the debate, I think it unlikely its postponed at all. But the propositions might well go to March.

     This argument prompts me to jump on my You Can't Generally Tell Much From Oral Argument hobbyhorse. A watchdog's failure to bark in the night is important because watchdogs are trained to bark at all strangers. Judges are not required, expected, or even always likely to ask questions about all issues that they find important. Oral argument time is limited; some judges aren't inclined to ask many questions even setting aside the time limits, especially when they're on a panel of 11; some arguments may be clear enough, and the counterarguments clear enough, that judges don't particularly feel the need to probe them further, even if they find them quite persuasive. For all these reasons, it's often (not always, but often) very hard to accurately infer how judges will vote based on what they say in oral argument; it's even harder to draw such infere ces based on what they will say.

     I suspect the judges won't delay the recall until March, based on the 3-judge panel opinion, and based on the makeup of the en banc court. But while one can try to make guesses based on what judges said and didn't say in oral argument, such guesses tend to be quite perilous, and that's particularly true of the oral argument in this case. We'll see within hours what the Circuit will decide; speculating before then, while possibly fun, is largely pointless, especially since the oral argument provided so little really helpful evidence based on which to speculate.

Monday, September 22, 2003

 
[Randy Barnett, 9/22/2003 08:52:27 PM]
Larry Solum on Res Judicata: Larry Solum shares his thoughts on res judicata and today's recall argument before the Ninth Circuit on his world renowned Legal Theory Blog. (It was kind of weird to watch the argument on CSPAN this afternoon from the very same courtroom in which I argued on Tuesday.)

 
[Eugene Volokh, 9/22/2003 08:15:22 PM]
Sheer rumor about the Ninth Circuit recall en banc decision: A law professor tells me that a reporter told him that the Ninth Circuit will be handing down the en banc decision on the recall tomorrow. The reporter apparently didn't tell how he learned that, or at least the professor didn't tell me about it. So now I'm telling you.

UPDATE: How Appealing also says it, and so does the Associated Press, citing "a court spokeswoman."

 
[David Bernstein, 9/22/2003 06:02:12 PM]
Chubby Ballerinas: Sasha linked last week to a story about a Russian ballerina who was fired by the Bolshoi, purportedly because she had gained too much weight. If this had occurred in San Francisco, she might have a valid discrimination lawsuit. A couple of years ago, Krissy Keefer filed a complaint with the San Francisco Human Rights Commission alleging that the San Francisco Ballet's refusal to admit her medium-sized daughter Fredrika into the Ballet's preprofessional program violated a local ordinance banning height and weight discrimination. I discuss this case in detail in the chapter on artistic freedom in my forthcoming, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. Last I heard, the complaint was still pending. Meanwhile, an overweight but aerobically fit instructor has used the ordinance to force Jazzercise to employ her, against Jazzercise objections that she does not exactly fit the image they are trying to portrary to the public. My favorite quote on the Keefer matter is from Lawrence Goldhuber, a 6-foot-1, 350-pound modern dancer, who mocked Keefer’s complaint, and admitted that he preferred watching thin dancers, particularly in ballet. “Short people don’t get hired by the NBA,” he noted, “Should fat people be in the ballet?”

 
[David Adesnik, 9/22/2003 05:32:49 PM]
CLARITY IN PARIS: Boomshock and Drezner catch Chirac talking out of both sides of his mouth.

 
[David Adesnik, 9/22/2003 05:28:37 PM]
VERMONT FOR NADER! Its seems that a certain former governor may not be voting Democratic next fall.

 
[David Adesnik, 9/22/2003 05:23:56 PM]
BALKING HEADS: TAPPED takes a well-deserved shot at Russert and Safire. It's also reluctantly admitting that Wes Clark's stance on the war is becoming more confusing by the day.

 
[David Adesnik, 9/22/2003 05:15:48 PM]
BE ALL THAT YOU CAN BE: The general in charge of the Army reserve says that his office is working hard to ease the burdens that reservists now face because of ever more frequent call-ups. I hope his plans work, because God knows it's going to get harder to recruit when joining the reserve is becoming more and more like a surprise enlistment.

 
[David Adesnik, 9/22/2003 05:06:54 PM]
FIND THAT EVIDENCE!!! I'm glad to be a site run by lawyers, since they are experts in finding evidence. Perhaps my non-existent legal education is the reason that I can't find any evidence at all in this NYT article entitled "Arafat Seeing Renewed Support Among Palestinians."

After

two days of conversations with Palestinians, including biology students in Gaza and retirees playing cards over glasses of mint tea in the West Bank

the best that reporter Alan Cowell could come up with is this:

"Arafat is the leader of the Palestinian people," said Basel Ahmed, a 25-year-old bakery worker in Ramallah. "He initiated armed struggle, he initiated peace. Nobody can achieve anything without the green light of approval from Arafat."

Given the mostly non-committal observations made by other interview subjects, the baker's comments are less than impressive. Memo to 44th St.: Stop doing Arafat favors since he doesn't plan on doing any for you.

 
[David Adesnik, 9/22/2003 04:54:30 PM]
POLITICAL "SCIENCE": The secret to success in America's political science departments is to invent statistics. If you can talk about regressions and r-squared and chi-squared and probit and logit, then you can persuade your colleagues that your work is as rigorous as that of a chemist, a physicist, or (at worst) an economist.

Yet as economists have slowly begun to recognize, statistics are only as good as the assumption