Saturday, October 04, 2003

 
[Tyler Cowen, 10/4/2003 02:43:22 PM]
Robert Trivers I just spent two days with Robert Trivers, the famed sociobiologist, at a conference. Here is my advice: invite him to your conference, he is a fascinating and brilliant guy, it is spellbinding to listen to him. Or if you see he is speaking, go hear him. This recommend has nothing to do with what you think of sociobiology, his intellectual value transcends the partisan bickering over particular ideas.

His lifestory is fascinating as well, I'm not sure what I was told in confidence, but ask him yourself. It could make for an award-winning movie. Here is an interview with Trivers, though it does not do justice to his presence. It does mention his history with the Black Panthers. Here is a brief bit on his time in Jamaica. Here is his home page.

Addendum: The interview link works now, thanks to the readers who pointed out the problem.

 
[Tyler Cowen, 10/4/2003 02:34:50 PM]
The new Paul Johnson book: I've now finished Art: A New History. As you might expect from a British Catholic conservative, the best parts are about medieval art, medieval cathedrals, and the British watercolor tradition. The book is easy to read and stimulating throughout.

It falls apart as we approach the twentieth century. Johnson offers only grudging admiration for Cezanne, and he flirts with the idea that Picasso was a charlatan. You needn't ask about Warhol and numerous others. I, too, admire Wyeth and Norman Rockwell, but they are not the peaks of twentieth century art.

Johnson also, inexplicably, makes up facts and boldly announces that he is doing so. Consider this bit:

"It is fair to assume friendly relations between Raphael and Leonardo, though they cannot have met often." (p.279)

Or this:

"Cranach is an uneven painter, known chiefly for his emaciated high-breasted nudes, Eves and the like, which would have disgusted Michelangelo and made Titian laugh." (p.300)

These are a few examples of many.

I am still willing to recommend this book. But what possible reason can there be to include such nonsense? It won't help the book sell more copies, and it only makes it harder for for critics to recommend the work.

 
[Eugene Volokh, 10/4/2003 10:39:08 AM]
Hostile public accommodations environment law: Apropos the UPDATE in David Bernstein's post below, see this op-ed describing a complaint by a state agency based on a supposedly racist display in a bar (after the op-ed was published, the agency did indeed file the complaint, and the bar owner settled for several thousand dollars), and this op-ed describing a court's refusal to drop a lawsuit based on a supposedly racist statement by a flight attendant. I also summarize several such incidents, including the first, here. I entirely agree with David that hostile public accommodations environment law generally violates the First Amendment -- but it's out there (part of the slippery slope from hostile work environment law), and unfortunately the courts haven't yet slapped it down as they ought to.

 
[David Bernstein, 10/4/2003 09:11:32 AM]
Anti-Semitic Murals in Cleveland: Oddly, this story (hat tip: Little Green Footballs) about blatantly anti-Semitic murals at a Cleveland deli never mentions the one group, other than the owner, with the power to get the murals taken down: the deli's customers. What are they doing patronizing this deli? If I were in Cleveland, I would take pictures of customers as they entered or exited the deli, and post them on the Internet. Their neighbors, co-workers, business associates, etc., should know.

UPDATE: In theory, a Jewish customer could sue the deli owner (or file a complaint with local authorities) for creating a "hostile public environment" for Jewish patrons in a place of public accommodation, in violation of federal, state, and local antidiscrimination laws. However, I think such an application of public accommodations laws is unconstitutional, and a bad idea even if it did not violate the First Amendment. Private boycotts and negative publicity, by contrast, are exactly how bigots and their enablers should be dealt with.

 
[David Bernstein, 10/4/2003 08:59:53 AM]
Suicide Murder in Haifa: Another suicide murder bombing in Israel, this time at the Arab-owned Maxim restaurant. When I was in Israel in June and was going to visit Haifa, this restaurant was recommended to me for lunch. My girlfriend and I couldn't find it, and wound up at a different Arab-owned restaurant, Abu-something, instead. I noticed that the restaurant had no security guard, which made me nervous. My girlfriend told me not to worry, that Palestinian terrorists would not target a restaurant owned, staffed, and frequented by Arabs. I demurred, suggesting that the terrorists are cold-blooded murderers who intend to ensure that Israelis don't feel safe anywhere. How better to make that point than to attack an Arab-owned restaurant, whose proprietors and staff would be seen as collaborators in any event? And how better to show commitment to the cause than to show a willingness sacrifice fellow Arabs to it, if some Jews could be murdered at the same time? The logic of crazed fanatics. In any event, the restaurant destroyed today apparently did have a security guard, and initial reports indicate that the bomber may have shot the guard before committing mass murder.

UPDATE: Ha'aretz reports that the restaurant blown up today was actually co-owned by an Israeli Jew and an Israeli Arab. Four Israeli Arabs are among the nineteen dead.

 
[Sasha Volokh, 10/4/2003 08:34:36 AM]
This is why I hate reading most popular press articles about complicated science. I can't understand a word. And I even know Brouwer's Fixed Point Theorem (which they spell Brower) and Newton's Method!

Friday, October 03, 2003

 
[Sasha Volokh, 10/3/2003 09:19:03 PM]
North Korea: Read this.

 
[Randy Barnett, 10/3/2003 08:57:11 PM]
Latest by Victor Davis Hanson: What Iraq is All About: It is hard to pull out a representative quote from Victor Davis Hanson's latest on NRO so, though I recommend reading it from the beginning, here is how it ends:

Yet in the present struggle, our enemies made three critical mistakes that have for the time being upset their otherwise brilliant plans. First, September 11 woke Americans up to the danger of parasitic terrorism from the Middle East and the larger realization that there might be even easier ways of leveling a Manhattan block than crashing planes into skyscrapers. So 9/11 taught us that the will to kill all of us was certainly there — our only reprieve for the moment being the inability of the enemy to trump what they had begun. In response to such cataclysmic damage on that terrible September day, Americans were willing to question the old political calculus of appeasement, at least for a while, and realized that recklessness was not bombing the Taliban or marching on Baghdad, but the old mantra of "sending a stern message" and "keeping Hussein in his box."

Second, President Bush, whatever one thinks of him, is, well, let's face it, a strange sort of president. For all the hysteria about Karl Rove's supposed political calculations and machinations, I sense that the president doesn't care much what others think of him; indeed, for the price of winning this war he might even be willing to be a one-term president. In other words, this is a man who probably would not have withdrawn from Beirut, turned ships around off the harbor at Haiti at the sound of gunfire, or yanked Americans from Somalia as two-bit thugs dragged their corpses in the street. . . . [snip] How long his resistance will last in the face of slander and slurs of historic proportions is unclear; but for now he has again responded in a manner that his enemies would never have anticipated.

Third, the bin Ladens, Taliban remnants, and Saddamites figured that Americans knew only the Western way of war, or more precisely that we fielded only some sort of big clumsy Vietnam-era, tank-driven army. Few figured that GPS bombing, counterinsurgency, special operatives, and our own sniping and raiding could allow us too to wage a low-intensity war, as now is going on in the Sunni Triangle. And unlike the Russians in Chechnya, Americans have the capital to fund largess, the message of freedom, and the strategy of resolute mercy that give the U.S. a much better chance at winning the hearts and minds of the Iraqi people, the key, after all, of any unconventional fighting. Once more, the critical question is not strength, but determination: If the American people decide that they truly wish to rid Baghdad of the Baathists and pacify Iraq and Afghanistan under the auspices of consensual governments, then they most surely can.

So here we have the stakes in this last, big hand of Middle East poker. Our enemies are betting that our very freedom, affluence, raucous democratic politics, and shoot-from-the hip media will still prove true to form and thus, sooner or later, we will quit — especially as an election nears and the memory of 3,000 incinerated Americans fades.

In contrast, Mr. Bush's hunch is that the tragedy of September changed us all, and his own resoluteness will prove the better hand. In other words, as polls drop and sunshine supporters fold, he senses that America — and with it civilization — will still win, and in a very big way, thus ending for good this awful contest of the last quarter-century.

 
[Eugene Volokh, 10/3/2003 01:33:12 PM]
Free State Project: So supposedly 20,000 libertarians are now going to move to New Hampshire, and try to "work within the political system to reduce the size and scope of government," and thus "demonstrat[e] the benefits of liberty to the rest of the nation and the world." I doubt this will work -- it's usually safe to bet against plans like this -- but I wish them all the best. Though I don't agree with hard-core libertarians on many things, and though I've generally found that the one thing they're not good at is "work[ing] within the political system," I think they have a lot of interesting ideas to offer, and I hope this will give them a better platform for promoting these ideas.

     And New Hampshire, it turns out, has a special advantage that the movement's leaders probably considered when they made the decision: "[T]he New Hampshire House of Representatives [is] the third-largest parliamentary body in the English speaking world. Only the U.S. Congress and Britain’s Parliament are larger." It has about 400 members, which means about one per 3000 inhabitants; presumably the libertarians could pretty quickly elect at least some members (depending on how concentrated they are in a particular area), and be able to make trouble and headlines. Obviously, it takes more than making trouble and headlines to "demonstrat[e] the benefits of liberty to the rest of the nation and the world," but having a perch within the legislature can't hurt.

     So good luck to the Free Staters. We'll see over the coming years whether they can really deliver anything of what they're suggesting.

     UPDATE: Reader Ronit Bhattacharyya points out that the Indian Parliament has 545 members; though most Indians don't speak English, English is a very important language in India, especially among the elites, so perhaps the New Hampshire House is only the fourth largest.

 
[Sasha Volokh, 10/3/2003 08:35:58 AM]
Stupid or evil? I often think of the old joke describing the American political system: "See, in our country, we have a two-party system; my party is the Stupid Party, and the other party is the Evil Party. Sometimes my guys are in power and we get a lot of stupid legislation; sometimes the other guys are in power and we get a lot of evil legislation. Sometimes both parties are in power and we get what's called 'gridlock,' where nothing particularly stupid or evil gets done. But occasionally the parties get together in what we call 'bipartisanship,' where we pass something that's both stupid and evil . . . ."

Here's a sign of the impending apocalypse: Unusual Alliance Seeks Deal on Tobacco Curbs; that's tobacco growers and anti-smoking activists getting together to (1) help out tobacco farmers and (2) give FDA regulatory authority over tobacco. Even Mitch McConnell is on board, holding hands with Ted Kennedy.

Now the helping out tobacco farmers isn't as bad as it sounds; when I saw those words I thought it meant more farm subsidies, but in fact it's a buyout of their "quota rights," which means tobacco would become more of a free-market crop:

As a way to make American tobacco more competitive and farmers more solvent, growers banded together to push for the elimination of the federal quota system, which was put in place in 1938 to prevent overproduction and keep tobacco prices high. Today, the quota rights are a commodity that is bought and sold, and they help make American tobacco more expensive than competitors' product.

Under bills introduced by McConnell in the Senate and Rep. Ernie Fletcher (R-Ky.) in the House, growers and holders of the rights to grow tobacco under the federal quota system would receive $13 billion to $15 billion in exchange for their quota rights, and tobacco would become more of a free-market commodity. The buyout money would be paid by tobacco companies rather than taxpayers, but the companies would likely raise cigarette prices to make up the cost.

I would prefer that the quota system be abolished without any payments to farmers, but if politically this needs a buyout of their quota rights, I'm not inherently against it. What I'm not clear on is how "[t]he buyout money would be paid by tobacco companies" -- does this mean it's going to be a tax on all tobacco companies, a voluntary payment by participating tobacco companies, or what? I suspect the former, which is bad (surely the tobacco companies are innocent parties with respect to American farm policy); but the Post article doesn't give me enough information on this. (Philip Morris is on board, but I suspect that if it's a tax it would even be levied on tobacco companies that are against this deal.)

But this isn't worth FDA regulation:

The bill would give the FDA authority to regulate all tobacco products and to oversee much of their manufacturing, marketing and advertising.

It would, for instance, allow the FDA to mandate changes in cigarettes to make them less harmful, control how and where tobacco is advertised, and determine whether newly created tobacco products are any less harmful and can be marketed as such.

R.J. Reynolds, for instance, opposes this because:

"We call it the Philip Morris monopoly bill," said Reynolds spokesman Tommy J. Payne, who added that FDA advertising restrictions and the cost of regulation would harm smaller companies more than Philip Morris. "Their Marlboro sells more than all of our cigarettes put together, and under the proposed regulation, it would be more and more difficult to tell smokers why they should try Camels instead," he said.

Take a look at my long ago op-ed on ad bans for more on that; and in case you're interested, more of my long-ago musings on tobacco, from back when I did this sort of thing for a living, are here and here.

Even the best-case scenario on tobacco farmers -- i.e., end price supports with no aid to farmers, or even end price supports with taxpayer money -- doesn't justify that.

In other news about the impending apocalypse, people keep thinking that when someone says (surprise!) that the Pope is in really bad health and may well die soon, it means they have the scoop on his medical condition (see also this link via Hanah via Best of the Web); the first apparent father-son handover of power in the former Soviet Union; the Chinese use everyday, innocent activity to fan their anti-Japanese passions; Alan Dershowitz, my legal ethics professor, defends his use of proper citation form (links through Howard); and (also through Howard) Judge Opts Out of Lengthy Pooh Case.

 
[Eugene Volokh, 10/3/2003 07:35:51 AM]
Signing treaties may erode the Bill of Rights: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment. Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech . . . supply[ing] a basis for prohibiting it, the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] . . . in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

     These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from a recent article by Prof. Peter Spiro, one of the leading American international law scholars; the article, called Treaties, International Law, and Constitutional Rights, was published in the Stanford Law Review, which is generally seen as one of the top 3 legal journals in the country.

     Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights -- "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" -- and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

     Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms. They may think the international lawmaking community (mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field) will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

     But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

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

     In any event, that's just my opinion. Read the Stanford Law Review article, which is fortunately quite readable and not terribly long (30 law review pages) for a different view.

 
[David Bernstein, 10/3/2003 07:17:50 AM]
More on the Publishing Industry and Conservative Books: A reader writes, with regard to Regenry:

It's pretty amazing that such a small publishing house has three books on the NY Times extended list right now (Ingraham, Limbaugh, Miniter). They had three other best-sellers earlier this year (Charen, Gold, Patterson). Regnery performed even better last year, with at least six top-15 NYT bestsellers (Goldberg, Timmerman, D'Souza, Gertz, Malkin, Sammon).

The new conservative imprints are a promising trend, but I doubt these publishers will be able to replicate Regnery's success. They are paying huge advances ($1 million in the case of Ann Coulter) for established conservative authors. Regnery is outmsarting its competitors by paying much smaller amounts for first-time, promising authors like Malkin, Miniter, Patterson, and Mowbray. Regnery is more nimble and is willing to take risks, whereas the imprints will not.

Of course, Regenry is in the business of publishing conservative books. That doesn't necessary help libertarian authors whose views will often offend conservative sensibilities.

I've received a few emails stating that the anonymous publisher I discussed yesterday had every right to reject my book on ideological grounds. Of course it did. But that doesn't mean I can't or shouldn't criticize how it exercises its rights. And I wouldn't claim "bias" if this publisher, and other major publishers, acknowledged that they have a liberal agenda, the way Regenry acknowledges its conservative agenda. Instead, the mainstream publishers usually claim that they are making either business or quality decisions when they reject conservative and libertarian books. What was remarkable about the letter rejecting my book was that the editor acknowledged that the book was well-written, and never claimed that it wouldn't sell. Rather, he/she bluntly stated that the press in question wasn't interested in conservative/libertarian books. Currently, the mainstream presses serve more or less as gatekeepers for reviews in major newspapers. Regenry books, even those that go on to be bestsellers, rarely get reviewed in major newspapers. If the mainstream presses publicly acknowledged their liberal biases, it would be far more difficult for newspapers to justify their current review policies.

Finally, whenever conservatives or libertarians complain of bias in the publishing industry, media, or academia, they are met with the response, "Poor baby, you guys control all three branches of government." First of all, libertarians, at least, control nothing. And in any event, what about those of us who don't want to "run the country," but just want to participate in the marketplace of ideas? My interest in a government job approaches zero, even though I live in the DC area and wouldn't even have to move to take one. Even think tank jobs (which themselves are few and far between) are not close substitutes for an academic job; think tanks must raise their money annually from donors, and are thus pressured to focus on "hot" public policy issues. No think tank would pay me to write, for example, about the legal history of Chinese immigrants. Fortunately, I found a great academic job. But I doubt that the conservative or libertarian faculty candidates who find academia closed to them are much assuaged by the fact Republicans control the federal government.

 
[Juan Non-Volokh, 10/3/2003 06:56:40 AM]
Barra on Limbaugh on McNabb: I always thought ESPN's decision to hire Rush Limbaugh as a football commentator was a bit ridiculous -- it was never more than a transparent effort to boost the ratings of its NFL pregame show -- but the firestorm over Limbaugh's comments over McNabb has been absolutely absurd. Slate's Allen Barra sets things straight with this excellent, spot-on column.

UPDATE: Gregg Easterbrook offers a thoughtful, and well-argued, counterpoint on this issue. I still agree with Barra, and think that the nature of the disagreement illustrates that Limbaugh's comments were really no big deal.

 
[Eugene Volokh, 10/3/2003 06:42:43 AM]
Odd criticism of Carl Reiner: EconoPundit writes (thanks to InstaPundit for the pointer):

Carl Reiner just slipped up on Chris Matthews' Hardball show. He absent-mindedly pronounced Arnold Schwarzenegger's last name the way, apparently, he and his anti-recall friends ironically pronounce it privately among themselves.

I'll have to write it in transliteration and do a bit of explaining. What Reiner said, with a kind of comfortable, humorous familiarity, was "Shfartze-negger."

Chris Matthews stopped him, laughed nervously and moved things along as the camera cut away from Reiner's confusion and embarassment.

Reiner returned to a modified, less-offensive version of the pronounciation later in the conversation, but what remains recorded for all to hear is kind of ugly. The first half of "Shfartze-negger" is the Yiddish version of the N-word. The second, appended to the first half with humorous irony, was apparently intended to mean what it sounded like.

     "Schvartzer" is indeed (more or less) the Yiddish equivalent of "nigger," at least when used within an English sentence, but I believe it's also pretty much how you would pronounce the first half of Schwartzenegger's name in German. (I think the "w" is pronounced as a "v," not a "f," but I doubt that one can make that much out of a fairly subtle vocal distinction such as this; in any case, I believe that "Schvartzer" is generally pronounced with a "v" sound rather than a "f," in part because it comes from the same German root, which simply means "black.") If you want to pronounce Schwartzenegger in German, you can't help but say something very much like "Schvartzer" in the process.

     I didn't watch the show, so maybe there were some important visual or auditory clues to the contrary, but I'd guess there was something different going on here: someone trying to (1) make fun of Schwarzenegger's accent, (2) highlight Schwarzenegger's foreignness, (3) highlight Schwarzenegger's Germanness (there's still some general anti-German bigotry among some American Jews, though perhaps this might also have been tied to allegations of Schwarzenegger being too friendly with Kurt Waldheim, and with Schwarzenegger's father's Nazi past), or a combination of the above. And this also makes much more sense than somehow using a racial slur against blacks when talking about someone who's white.

     So maybe there was bigotry here -- but I really doubt that it was anti-black bigotry, or even a jocular reference to anti-black bigotry.

UPDATE: A reader suggests that it might just have been a bit of harmless pedantry -- "I know how to pronounce the name 'the right way,' and I want to show off." I sometimes find myself doing that with Russian names, though I try to stop that, because it's silly. Maybe that was indeed why Reiner did this; hard to tell. (I wonder whether he pronounces other Germans' and Austrians' names that way.)

 
[Eugene Volokh, 10/3/2003 06:27:56 AM]
State do not call rules: A reader asks whether the First Amendment arguments against the federal do not call rule also apply to similar state rules. The answer is yes; the First Amendment applies equally to state and federal laws. (Purists may stress that it's actually the Fourteenth Amendment, which has been read as applying free speech principles to the states, that applies to state laws, rather than the First -- the First Amendment by its terms applies only to the federal government -- but that's not really that practically important here, since the rules are still the same.)

     The federal decision in Colorado does not itself enjoin the operation of the state laws. If someone wants to get an injunction, he'd have to file a separate case for each state law in either the state court or the local federal court, and persuade that judge to agree with the federal judge in Colorado; and other judges may well find that decision unpersuasive, and may reach the opposite result. But if the Colorado decision is eventually upheld by the Supreme Court, then it would apply equally to state and federal rules.

Thursday, October 02, 2003

 
[Tyler Cowen, 10/2/2003 04:51:19 PM]
John Lott, the perspective of one economist: Blogger Mark Kleiman is calling for a panel to evaluate the claims of John Lott on gun control: "Having been critical of Glenn Reynolds recently, I note with pleasure that he's taking a fairly hard line on John Lott, calling for what is clearly called for: a serious investigation by someone -- better, a panel -- competent to investigate." Instapundit and Randy Barnett (see the link, plus immediately below) seem on board.

My first reaction is to suggest that we already have such a panel every time John, or anyone else, submits a manuscript to a refereed journal on the topic.

Second, I would like to report what I take to be "the word" on Lott's work, among market-oriented economists, and of course those people are not by nature pro-gun control. N.B.: I am reporting other people's opinions here, not my own independent investigations. Nonetheless I have heard the same two points many times, and from people I respect:

1. John, at the very least, did show: "More guns, not nearly as much more crime as had been thought." This was a real contribution and it holds up.

2. John did not so clearly show "More guns, less crime." "More guns, less crime" conceivably could still be true, but it remains to be demonstrated.

Economists I talk to believe those two points, regardless of their stance on what John did or did not do wrong. In other words, what John did or did not do wrong is not very relevant for the substantive issues.

Yes, I know, standards of integrity are vitally important for science. But frankly, I am bored by all the talk and gossip concerning "Lottgate." Here are four more questions that, to me, are much more interesting:

1. If John was right, would it mean that relatively safe, gun-controlling societies, such as Japan, could become safer by removing restrictions on guns?

2. What social norms encourage responsible gun use? And how elastic are those norms to policy?

3. If you oppose gun control, can you imagine weapons technologies -- nuclear weapons and nanotechnology are only the extreme examples -- that you would not allow people to own? What would determine where the line should be drawn?

4. Do you wish that gun control could work? If it were proven that "Fewer guns, less crime" were true, would you be happy, knowing that now we could ban guns and lower the crime rate? Or would this create a moral dilemma for you?

That's my four cents for tonight.

 
[David Bernstein, 10/2/2003 02:32:58 PM]
More on Bias in the Publishing Industry: Tyler asks:

Paul Krugman may be changing this, but I can think of a long string of successful "right-wing" books, starting with Charles Murray and various neo-conservatives, many from Basic Books, "The Public Interest" stable, Paul Johnson, and so on. Looking at the less intellectual side of the market, surely no one was reluctant to bid for Rush Limbaugh or the big biographies of Ronald Reagan. So when we take the publishing industry as a whole, and look past the biases of individual publishers (which no doubt are real), do we see a net left-wing bias?

My understanding is that the string of Basic Books conservative bestsellers was a result of the presence of Adam Bellow as an editor there. Once Bellow left, so did Basic's interest in conservative books. Not to single out Basic, however. None of the major New York publishers bid on Bernard Goldberg's Bias, which had obvious bestseller potential. Ann Coulter had a very difficult time placing Slander, another big bestseller. Conservative publisher Regenry has been making a mint from books like Bias because mainstream publishers generally wouldn't publish conservative books, leaving Regnery to cherry-pick the potential bestsellers. The good news is that a few of the publishers have finally recognized that they are turning away good money: Random House and Penguin have both launched new imprints that will publish conservative books.

 
[Eugene Volokh, 10/2/2003 01:55:01 PM]
Update on potential prison sentences in Plame affair: I've revised my original post a bit; the bottom line is quite similar to the original, but there are a couple of extra twists.

 
[Randy Barnett, 10/2/2003 12:08:53 PM]
Update on John Lott controversy: My original post is now so far down the page than an update there is likely to go unnoticed, so I post here Mark Kleiman's response to Glenn Reynolds' recent Instapundit posts on John Lott:

Having been critical of Glenn Reynolds recently, I note with pleasure that he's taking a fairly hard line on John Lott, calling for what is clearly called for: a serious investigation by someone -- better, a panel -- competent to investigate.

The American Enterprise Institute could, and should, convene such a panel, since they've been lending credibility to Lott by keeping him on staff.

It seems to me that the pro-gun side has been too slow in detaching itself from Lott, but a sensible consensus seems now to be forming.

I second (third?) the (italicized) motion and have made this point to every reporter who has contacted me to comment on this affair.

As for his comment on whether the "pro-gun side has been too slow in detaching itself from Lott, " I do not follow much of what is posted by others so I can speak only for myself. Since Jim Lindgren's unsuccessful effort to verify some of Lott's claims from the criticisms of Tim Lambert, I have not defended Lott publicly in any way. Nor would I now rely on his empirical conclusions absent some outside examination of the sort that was eventually given the work of Michael Bellesiles.

My silence on this matter stems from the fact that (a) I lack the scholarly expertise to adjudicate the claims, and (b) the matter is almost completely peripheral to my own scholarship on the Second Amendment. So I still cannot weigh in definitively on who is correct. However, I do know enough about this matter to join with Mark, Glenn, and any others in calling for a full and fair examination of the serious issues raised by Tim Lambert's efforts.

FURTHER UPDATE: Jim Lindgren has now updated his original message posted on Instapundit. Here is how the new portion begins:

I promised to look into Mr. Zycher’s only specific claim of an Ayres/Donohue error (not combining two gun law predictors to get an overall or net effect), which I have done. On this point, Mr. Zycher appears to be dead wrong, not once, but repeatedly. Tim Lambert found even more evidence on this point than I did, so I include Lambert's comments at the end of this email. . . . .

To find the rest, click here and scroll way down.

 
[Jacob Levy, 10/2/2003 09:52:08 AM]
Bias in publishing? For another take, see this post from Crescat's Amanda Butler, who offers something of an insider's perspective. It sounds to me from David's story as if the publisher in question was a commercial one (though I won't ask, since he has good reason not to disclose). But a while back I seem to recall David extolling the virtues of commercial over university presses. I wonder whether he would have received the same kind of treatment from a major UP, and whether that shouldn't undercut some of the enthusiasm for giving up UPs in favor of trade publishers...

 
[Jacob Levy, 10/2/2003 09:38:59 AM]
Congratulations: to my colleague John Coetzee, Distinguished Service Professor of Social Thought at the University of Chicago, a brilliant novelist and two-time Booker Prize winner, and now Nobel Laureate in Literature. (The Committee on Social Thought was also the home of Nobel prizewinners Saul Bellow and F.A. Hayek.)

 
[Eugene Volokh, 10/2/2003 09:18:31 AM]
The Do Not Call decision: Just a brief, belated reminder about the logic of the Do Not Call decision:

1. It's pretty clear that the government does have the right to generally bar certain forms of communication into people's homes, when the particular people have said they don't want to hear the speech. Rowan v. Post Office Dep't (1970) so held as to mail, when it upheld a federal statute that let householders order particular senders to stop sending them mail. Martin v. City of Struthers (1943) likewise suggested that if a householder put up a "No Soliciting" sign, a city could punish people who nonetheless engaged in door-to-door soliciting (political or commercial) at that house. The same would be true of a law that barred all phone calls by people who didn't have a preexisting social or business relationship with a householder who put his phone number on a "do not call" registry.



2. But the question in this case is whether the government may impose such prohibitions in a content-based way, for instance (as here) by barring commercial phone calls to people whose numbers are on a "do not call" list but not political calls, or charitable solicitations. That's the question that the court answered "no."



3. The argument for why the court was right: City of Cincinnati v. Discovery Network (1993) struck down a city ordinance that barred newsracks containing purely advertising publications, but not newsracks containing other newspapers. Such discrimination against commercial advertising, where both the commercial advertising newsracks and the other newsracks posed the same kind of harm (clutter on the streets), was impermissible content discrimination. This case is quite similar.



4. The argument for why the court was wrong: (A) Despite Discovery Network, the Court had often said that commercial advertising is less valuable than other kinds of speech, and it makes sense for the legislature to conclude that the interest in preventing unwanted phone calls justifies the restriction on commercial advertising, but not on more valuable speech. (Possible response: This really does run straight into Discovery Network's seemingly contrary holding.) (B) Commercial telemarketing is perceived as materially more intrusive than political or charitable telemarketing, and a law aimed at decreasing intrusion may go after the more intrusive speech and not the less intrusive. (Possible response: It's not clear that this is in fact people's perception.) (C) Discovery Network stresses that in that case, the newsracks with the advertising publications were only a small fraction of the problem, so forbidding them didn't really materially reduce clutter; here, telemarketing phone calls are a much bigger part of the problem. (Possible response: Though Discovery Network did stress the small fraction point, it really doesn't fit well into the case' broader logic, which is that content-based discrimination against true, nonmisleading commercial speech that causes the same problems as noncommercial speech is just impermissible.)



5. What next? Presumably this will be appealed to the Tenth Circuit, which might reverse for one of the reasons given in the preceding paragraph. Circuit courts, though not the Tenth, have in fact upheld bans on unsolicited commercial faxes despite the Discovery Network objection; maybe the Tenth Circuit would do the same. From there, the loser can ask the Supreme Court to hear the case, though the Court would be under no obligation to do so.

I probably won't be blogging much more on this, but I thought that I'd say a few words about it, even if only tardily.

 
[Tyler Cowen, 10/2/2003 07:44:09 AM]
Best photos of the year? Click here for one selection, offered by www.geekpress.com, and of course no one will promise that they haven't been manipulated or digitally enhanced. My two favorites are the little fish inside the mouth of the big fish, and what the earth looks like at night, you can see which areas have electrical power and which do not.

 
[Eugene Volokh, 10/2/2003 07:39:58 AM]
Cars: I was going to drop this issue, but Eric Muller, whom I much respect, jumped on it, and I thought I'd respond. Eric quotes an earlier post by Ed Cone that suggested that various people had a responsibility to take a stand on the Valerie Plame affair:

"Do hobbyists have responsibilities when playing with powerful toys like, say, guns, cars, or journalism?"

     It's funny that Eric and Ed would put it this way, because of course everyone does have responsibilities when playing with guns, cars, or journalism. The responsibility is to use guns and drive cars safely, and to do journalism carefully and accurately. Even someone who isn't a professional driver has a responsibility not to crash into things.

     But while I have responsibilities when driving my car, they don't include driving my car wherever you ask to me drive it. If I choose to give people a ride to the NRA convention, for instance, it doesn't follow that I have a responsibility to drive other people to the Sierra Club convention. Being a hobbyist means being able to choose the particular way one practices one's hobby (so long as one does it safely and accurately).

     If I ran the Institute for Reporting Governmental Scandals, which raised funds and paid me a handsome salary on the premise that it evenhandedly reported governmental scandals, then you might well tell me "Taxi! Take me to the Valerie Plame Affair," and I might feel a responsibility to say "Yes, sir, that'll be $2.40/mile." But the blog isn't that Institute, and it isn't my paid job -- governmental scandals aren't even my main area of hobby specialty (I think I've covered very few of them, in part because they require one to keep up with a lot of facts and commentaries, both the originally reported ones and the new items that are written every day, often on subjects that don't interest me, and with the pretty high standard of care needed when one is throwing around accusations of criminality). So, no, I don't feel responsible to give you a lift wherever you want to go just because you insist on it.

     Remember, people are suggesting that various people who blog for fun have a responsibility not just to express their views on a subject, but to invest the considerable time and effort needed to acquire well-informed views on the subject, and to maintain them as the story develops, and also to risk embarrassment if it turns out that their judgment isn't well-informed enough and their accusations prove unfounded. No, thanks. That kind of socially pressured blogging isn't what I signed up for.

     Finally, I like to think (and I apologize for the immodesty) that my blogging has generally provided some degree of public service. But while I have certainly gotten considerable value out of it myself -- almost exclusively the fun of doing it, and the satisfaction of knowing that I'm getting my ideas out there -- this value stems from the blogging being on subjects that I'm interested in, that I want to talk about, and that don't feel like work for me to talk about. I suspect that this is true for virtually all other bloggers. This fun, and this freedom, is what makes blogging work as a medium.

     I don't want blogging to start feeling like a chore, the sort of thing I do because people have made me feel obligated to do it. If it does start feeling like a chore, for me and for other people, there'll be a good deal less blogging out there. So I'll stick with treating this as a hobby, writing about what I know and what I like to write about, and resisting people's demands that I invest time and effort in reading, evaluating, judging, and writing about subjects that they choose for me, rather than my choosing for myself. And I don't see anything at all irresponsible about this approach.

UPDATE: Michael Froomkin also has an excellent post on the subject; much worth reading.

 
[Tyler Cowen, 10/2/2003 07:37:33 AM]
Review of my latest book Creative Destruction: Paul Cantor of the University of Virginia offers a very favorable review of my latest book, Creative Destruction: How Globalization is Changing the World's Cultures. Paul summarizes the book better than I ever could, he is an excellent writer on culture and economics. Although he is an English professor he also was once a student of Ludwig Mises, when he was a teenager, I am told.

 
[Tyler Cowen, 10/2/2003 07:28:13 AM]
Is the publishing industry biased? David Bernstein writes of left-wing bias in the publishing industry. I have an anecdote of my own to offer.

I once submitted the manuscript of my In Praise of Commercial Culture to a commercial publisher. One part of the book argues that the commercialization of the book trade, as had picked up steam in eighteenth century England, was largely a good thing. I received a short letter in return. I can no longer find the copy, but basically it said that my manuscript implied that new ideas had a chance in the world of commercial publishing, and that this could not possibly be true. Therefore the book should be rejected, which of course it was.

I do, however, have a query for David. I've never seen statistics, but observation suggests that most of the big-selling public intellectual books, over the last twenty years, have sooner been from the right than from the left. Paul Krugman may be changing this, but I can think of a long string of successful "right-wing" books, starting with Charles Murray and various neo-conservatives, many from Basic Books, "The Public Interest" stable, Paul Johnson, and so on. Looking at the less intellectual side of the market, surely no one was reluctant to bid for Rush Limbaugh or the big biographies of Ronald Reagan. So when we take the publishing industry as a whole, and look past the biases of individual publishers (which no doubt are real), do we see a net left-wing bias?

 
[Randy Barnett, 10/2/2003 06:54:31 AM]
Zycher v. Lindgren on John Lott: For those who have been following the controversy over John Lott's scholarship, Instapundit has published this exchange between Benjamin Zycher, Senior economist, RAND Corporation, and James Lindgren of Northwestern University School of Law concerning challenges made to the scholarship of John Lott. Glenn's take on this?

I find Lindgren credible; Ayres and Donohue, too, though they're anti-gun. Are they wrong? Maybe. I certainly can't say. But the above [email from Zycher] -- an assertion that they're wrong -- isn't likely to persuade me since it's, well, just an assertion.

I offered to set up a separate page for Zycher if he needed it, and from our correspondence I expected a more complete explanation than I got. I would, of course, prefer to have it turn out that Lott is correct and that his critics are mistaken. The problem with this entire affair is that it has been a back-and-forth of dueling experts in a field in which I lack the expertise to determine the answer.

(For those who are unaware of the controversy, you should start with the blog of Tim Lambert, who first raised the issue.)

 
[David Bernstein, 10/2/2003 04:44:38 AM]
Left-Wing Bias in the Publishing Industry: Yesterday, I discussed some of my personal experiences with left-wing bias in the legal academy. Today, it's on to the publishing industry. Before I decided to publish my new book (official release date: 10/28), You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, with the Cato Institute, my agent and I submitted it to a major publishing house (that will remain anonymous so as not to ruin the relationship between it and my agent), and received the following reply:

Though we were impressed with Bernstein's powers of argument, and with his platform, we are uneasy about publish a book that is so aggressively hostile to what we consider to be standard social mores. Though I appreciate the fact that Prof. Bernstein is arguing passsionately and vigorously for what he believes to be a rational approach to free speech, I still found the examples upon which he has built his argument to favor a bedrock conservative/libertarian agenda that would not find a comfortable home at [our publishing house].

I do not intend to invoke political correctness as one of our criteria for publication [hah!]; rather, as I'm sure you understand, a book must resonate with its potential editor/publisher in order that a good relationship can be forged. In the absence of that, we must pass on the opportunity to publish [You Can't Say That!]

I think the letter speaks for itself, but I can't help but note the irony that a publishing house would turn down a book because it thought that a vigorous defense of the First Amendment is beyond the pale, "aggressively hostile" to "standard social mores."

You Can't Say That! is available at a 30% discount from Amazon. You can read the Introduction here.

Wednesday, October 01, 2003

 
[Eugene Volokh, 10/1/2003 04:44:01 PM]
Dirty dancing and the law: An interesting federal magistrate judge opinion on this subject here.

 
[Randy Barnett, 10/1/2003 10:29:50 AM]
Bias Against Conservatives (and Libertarians) in Academia: I have not weighed in previously on this topic, though I do have strong views and relevant experiences. Unfortunately, I do not have time to write much right now. But I want to commend David for his willingness to relate his own experiences, and to confirm the third event on his list. I was there and witnessed it myself. In his post, David was extremely diplomatic in his description of the event, omitting the venomous tone of the "questions" directed by some senior faculty--especially one in particular--during his talk. This was a tone that was both highly unusual and completely inappropriate to a "job talk" by a very junior person but, along with other critical comments, the obvious hostility surely undermined the viability of his candidacy with those who would have been more in the middle. A candidate rarely gets appointed over such vehement opposition from even a few senior professors.

Perhaps the most important dynamic of ALL faculty appointments (regardless of ideology) is this: Given the collective nature of the decision process, is there someone on the faculty who feels so strongly favorable about a candidate that he or she is willing (and happens to be in the position) to expend enough energy to overcome the disparate agendas of his colleagues? If you add to this NORM, the presence of almost any heated ideological opposition, and/or the absence of any sympathetic influential member of the faculty willing to expend scarce political capital, the candidacy is doomed (as most candidacies are anyhow).

In the end, I think any candidate with political views in the minority (in which category I include radical left, as well as conservative or libertarian) must be significantly better than the normal appointment at a particular school to have a chance of getting a job offer from that school. An implication of this is that, as you go up in the hierarchy and the competition is more intense, it becomes increasingly difficulty to exceed the competition by enough to overcome the normal inertia against such an appointment.

UPDATE: Stephen Bainbridge replies here.

 
[Tyler Cowen, 10/1/2003 09:01:37 AM]
The recurring vitality of French cinema: Here is a good report on the ongoing vitality of French cinema. French movies have been an economic basket for about the last twenty years, but it seems that they are turning a corner. French moviemakers have decided that they need to compete for a living. "Amelie" is the best known example of a French film that is both fun and deep at the same time, but there are numerous others.

Cultural protectionists offer so much talk about the need to preserve "national traditions," including moviemaking traditions. But which traditions? The French have a history of open cinematic markets and no subsidies, at least prior to the Second World War. Fortunately the French are now moving closer to that tradition, and away from their alternative tradition of dirigiste. Invoking the idea of a national tradition is usually a rhetorical device, it settles substantive matters far less frequently than is commonly believed.

By the way, did you know that French cinematic protectionism was taken over from Nazi policies? Read here for more detail (note that the piece is a few years old and some of the cited facts about current events have since been reversed). The Germans forcing interventionist policies on the French, is that really the kind of national tradition that the French cannot discard?

 
[David Bernstein, 10/1/2003 08:09:26 AM]
Bias Against Conservatives (and Libertarians) in Academia: Sorry to weigh in so late on this topic, but there is clear bias against both conservatives and libertarians (folks on the left often don't distinguish between these two groups, thinking of them both as "reactionaries") in academia. A few anecdotes from my own experiences almost a decade ago on the job market:

(1) I had an interview with a middling law school in the Midwest that desperately needed someone to teach Evidence, a subject I had been writing about and was eager to teach. I already had about seven publications, while the median untenured faculty member at this school had about one. I did not get the job. I asked a faculty friend at the law school what happened, and he told me that I was perceived both as too ambitious in my scholarly pursuits for the school's culture, and was also perceived as "too conservative." My presentation, mind you, was an empirical piece about the status of the Daubert case, and had no ideological content.

(2) I was not invited for a callback at a good Midwestern school, despite an initial showing of enthusiasm. When I inquired with contacts at the school what occurred, I was told that much enthusiasm remained, but that several members of the appointments committee made it clear that they would do everything in their power to stop someone with my views from receiving a faculty appointment. Faced with such strong and determined opposition from senior faculty members, it was decided that inviting me for a callback would be a waste of time.

(3) I received a callback at one Northeastern law school with an excellent faculty, and proceeded to present a paper that was eventually turned into chapters 3, 4, and 5 of my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. As the title of the book suggests, the paper was almost entirely historical, and did not touch on any of the current hot button issues regarding race. Nevertheless, several professors insisted on questioning me regarding my views on affirmative action, their questions clearly implying that they believed that my historical work was a mere subterfuge for an attack on affirmative action. After all, I was writing about race and I clearly wasn't a liberal, so I must not only be a dedicated opponent of affirmative action, I must be itching to write about it as well. The idea that I would spend hundreds of hours on historical research to make an elliptical point about affirmative action was frankly stupid and insulting, but even if I had been a dedicated opponent of affirmative action, why would that make me ineligible for a position?

I could go on, and these are merely examples of explicit bias. I agree with co-Conspirator Juan that much of the bias against conservatives and libertarians is implicit and not intentional, though it's not limited to liberals not being interested in the same kinds of issues that interest conservatives and libertarians. Rather, because academia is so dominated by liberals, many professors are never really exposed to contrary perspectives (this, by the way, is becoming less and less true in the legal academy, but strikes me as still true in many liberal arts fields). Thus, ideas that seem sensible to conservatives and libertarians may strike liberals as bizarre, and evidence of lack of acumen by those who propound them.

When I was on the job market, I often discussed my thesis that much of the facially-neutral labor legislation of the New Deal era harmed disenfranchised African Americans, and that Lochner therefore aided them to the extent it preserved free labor markets. This would come as no particular surprise to conservatives and libertarians, who tend to be hostile to the New Deal, sympathetic with free labor markets, and familiar with public choice theory. But at least at the time, this was a highly counter-intuitive concept to many of my interlocutors, who had always believed (1) the New Deal was good; (2) labor unions were good; (3) Lochner was bad; and (4) African Americans were among the primary beneficiaries of the modern regulatory state. I think I more than adequately explained myself in the paper I wrote on these issues. But I later learned that given the large number of candidates that appointment committees see, their members are unlikely to closely read all of the candidates' papers, especially in my case, because I had several. So I was left in the position of having just a few minutes to advocate a position that went against several deeply-ingrained beliefs strongly held by my interviewers. Not an enviable task, I assure you. If I had to do it over again, I would have written the paper that became chapter 1 of my book first, and presented that at my interviews.* In that paper, the villains are southern state governments and politically-powerful southern planters, villains that far better fit the worldview of most professors than the labor unions and Roosevelt administration villains of the paper I actually had in hand.

Things worked out well for me in the end, with my position at George Mason, a school with one of the most interesting and productive faculties in the country. But I was fortunate that the Mason faculty was dominated by moderate to libertarian law and economics scholars, who had a basic grasp of the public choice analysis that my work on race and labor law relied upon.


*That paper later was Runner-Up in the Association of American Law School's Scholarly Papers competition. I presented the paper at the annual meeting of the AALS in January 1997. After my presentation, I overheard a professor who had not attended the panel asking a professor who had attended about my paper. The latter replied, "the history was interesting," but then added contemptuously, "but you know, some of what he said sounded conservative." So maybe it wouldn't have helped that much.

 
[Eugene Volokh, 10/1/2003 07:48:44 AM]
D.C. shield law: N.Z. Bear asks whether the D.C. journalist shield law (D.C. Code secs. 16-4702 and 16-4703) would apply to possible subpoenas of reporters in the Plame affair. The answer is no; the D.C. Code generally applies to proceedings in D.C. courts, and to D.C. prosecutors (plus possibly to civil actions brought under the diversity jurisdiction of federal courts, though I'm not sure how D.C. rules fit there). It would not apply, however, to Justice Department prosecutors -- their actions in these matters are governed by the privileges set forth in general federal law, not the law of a particular state or of D.C., even if the prosecutors are physically located within that local jurisdiction.

 
[Eugene Volokh, 10/1/2003 07:27:18 AM]
Subpoenaing Novak -- a possible stumbling block? As I mentioned in my earlier post on this, I'm not much of an expert on the statutory and administrative constraints on the federal government's subpoenaing journalists; my core expertise in this field is the constitutional question. But reader Howard Jaeckel kindly pointed out that the Justice Department has internal guidelines as to subpoenaing reporters, and not just as to issuing search warrants against them. They're not enforceable in court -- they expressly state that they're just internal policies, and "are not intended to create or recognize any legally enforceable right in any person" -- and the Attorney General can waive them at any time; but I take it that their existence may affect the political defensibility of a decision either to issue the subpoena or not to issue it.

     The regulations are at 28 CFR sec. 50.10, and they say, among other things,

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media. . . .

(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General . . . .

(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:

(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation--particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. . . .

(3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources.

(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. . . .

The one proviso that may be a barrier here is the one in the last sentence -- a subpoena seeking the name of a source doesn't sound like "the verification of published information," and doesn't "relate to the accuracy of the published information." I tried to do a bit more searching to see whether these rules really do preclude subpoenas aimed solely at identifying leakers, and also what "exigent circumstances" mean in this context, but I couldn't find much.

     At the same time, my sense is that federal prosecutors sometimes do subpoena journalists to get the names of sources, simply to find leaks; maybe I'm mistaken, and maybe the prosecutors do so in violation of the guidelines, but maybe I'm missing something here. If anyone knows of any authoritative interpretations of these guidelines, and what other guidelines may apply here, please let me know, at volokh at law.ucla.edu. Facts, please, not speculation . . . .

     Note, though, that (f)(4) doesn't apply to subpoenas for a journalist's phone logs (which are kept by the phone company, and which generally contain the phone numbers and dates and times both for outgoing and incoming phone calls), see 28 CFR sec. 50.10(g). These may contain some important clues, they probably won't have the smoking guns needed for a criminal prosecution of the official.

 
[Randy Barnett, 10/1/2003 06:44:30 AM]
Den Beste on Progress in Iraq: Steve Den Beste has a new post predicting accelerated success in Iraq. It is a long analysis (including some interesting links) that builds to the following conclusion:

The ongoing acceleration in the expression of more and more diverse opinions there shows a growing consensus that public expression of diverse opinions is a good thing.

That's contagious; it appeals to something deep in human character, something that transcends culture. We humans are designed to think and make decisions, but we have to be taught, and usually we have to be forced, to blindly follow orders. Our fundamental independence can be suppressed but never eliminated. It's still in there, waiting, in everyone. And now that oppression has lifted, it's starting to bloom in Iraq. As time goes on, it become more wide spread, in Iraq and elsewhere in the region. And it will accelerate.

And that means we're beginning to win the war. This was the real reason for conquering Iraq. This is our best strategic weapon against the extremists who attacked us. Their power is in their ideas, their beliefs, and basic to them is a dedication to uniformity and central control, of submission of the masses to the will of the few. We counter that with our idea about individual liberty, and our idea is better. I believe that it's better ethically and aesthetically. Societies based on our idea are more productive in nearly every way. And our idea is more competitive memetically. Our idea is more seductive, more attractive. Against it they have little defense.

Diversity and freedom are anathema to them, and it is our dedication to those things which have made us more powerful than they are. If our idea continues to spread, their ideas will be marginalized and will wither away. And then the war will be over.

We will eliminate our enemies not by killing them in hordes, but by infecting them with ideas which will convert most of them to friends. That process has now begun.

I hope he is right in his prediction--as I am sure even those who opposed the war do as well.

 
[David Bernstein, 10/1/2003 05:36:54 AM]
Georgetown Talk: I will be speaking at the Georgetown Law Center today at 4:00, Room 200, about my book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. Professor Charles Abernathy of Georgetown will provide comments. Volokh Conspiracy readers are welcome to attend. The law school is near Union Station, not in Georgetown.

 
[Eugene Volokh, 10/1/2003 04:06:40 AM]
Plame time: Just how much prison time would a federal official who did leak Plame's identity -- if there was indeed a leak that violated 50 U.S.C. sec. 421 -- be facing? Sure, the press accounts quote the statute, which says "shall be fined not more than $50,000 or imprisoned not more than ten years." But "not more than ten" could mean "zero," and for many crimes, first-time offenders indeed get a much shorter term than the statutory maximum. The answer generally isn't in the statute (except sometimes when the statute prescribes a minimum, which this one doesn't) -- it's in the Sentencing Guidelines.

     And if you check out Guideline 2M3.9, and then map it using the Sentencing Grid (assuming that the leaker has no significant criminal history), you get . . . a long time: about 8 to 10 years "if the information was disclosed by a person with, or who had authorized access to[,] classified information identifying a covert agent," or 5 to 6 years "if the information was disclosed by a person with authorized access only to other classified information." [UPDATE:] The latter situation (where the person had authorized access only to other classified information) is covered by 50 U.S.C. sec. 421(b), which places a statutory cap of 5 years, so 5 years would indeed be the maximum. [END UPDATE; thanks to reader Eric Stahlfeld for pointing this out.] If the defendant both pleads guilty and "accepts responsibility" for his offense (see 3E1.1), that falls to 6 to 7 years (from 8 to 10) and 3.5 to 4.5 years (from 5). And if the defendant provides substantial assistance in catching and prosecuting his confederates, and the government moves for a downward departure based on that, the court may go lower (no specified amount). The judge may depart further down (or up), if he thinks that there are important factors in the case that the Guidelines don't properly take into account; but such departures are pretty rare, and often reversed. And note that the time is pretty honest; there's no parole in the federal system, and when I last checked, the sentences could be reduced by at most 1/7 for good behavior.

     So we're talking potentially a long time, quite near the statutory maximum, if the defendant fights (and loses), and if he in fact had authorized access to classified information identifying Plame as a covert agent; or it might be half the maximum if he only had access to other classified information. Either way, this is serious time here, no slap on the wrist.

     Federal criminal lawyers, or people who clerked more recently than I did and therefore have fresher knowledge of the Guidelines than I do: Please correct me if I'm in error here.

UPDATE: Reader Gerry Conovan asks what would happen if someone is convicted on multiple counts of leaking, for instance if someone called several reporters about this. I believe that this will not affect the Guidelines ranges, though it might lead a judge to impose a higher sentence within the range. Under 3D1.2(b), the offenses would be grouped together, and under 3D1.3(a) and 3D1.4(a). [FURTHER UPDATE: 50 U.S.C. sec. 421(d) says that "A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment." My sense is that this wouldn't mean that multiple counts all under this same statute -- based on leaks to 6 people, for instance -- would all be consecutive with each other; rather, this would just require that any sentence for those counts run consecutive with sentences for any other crimes the person might have committed. But I can't be sure.]

Tuesday, September 30, 2003

 
[Tyler Cowen, 9/30/2003 06:21:34 PM]
Randy Barnett asked a few days ago "I suppose I am asking whether at some point the quality of "open access" opinion will meet or exceed that of "gated access" opinion."

I am surprised that no one has taken him up on this. Frankly, I thought the blogosphere already is better. How many Op-Ed columnists do I really look forward to reading? Paul Krugman (though I frequently disagree with him), and some of the economists who write for The New York Times, Hal Varian would be another. But I spend as much time reading Brad DeLong, he has the liberty of writing for other economists, plus he channels the best of Krugman. I prefer Andrew Sullivan and Daniel Drezner to the regular conservative/libertarian politics commentators in the newspapers. I would rather browse Atrios than read Maureen Dowd.

Who in the newspapers covers art history/archaeology (cronaca.com), futuristic science (futurepundit.com), or anthropology (dienekes.com)?

If you care about legal commentary, well, it isn't even close, and that is without counting VC in the mix. Just check out the links on the left side of this page.

Maybe you think I've stacked the deck in my comparisons, or ignored The New Republic, or whatever.

And again, this is opinion, as opposed to original source reporting. You can all write me and tell me I am crazy, but I cast my vote for the blogosphere.

 
[Randy Barnett, 9/30/2003 05:10:51 PM]
Responses to the Gated Internet: I have received several thoughtful replies to my posts on the "gated internet" here, here, and here, which regrettably I have been too swamped to answer. I was touched by the reply of one correspondent, Kevin Brancato, of the blog Truck and Barter, who has given me permission to post it here:

You wrote: I wonder how this calculation will affect the pool of authors vying for space in Big Media or other smaller print outlets whose electronic archives are behind gates. If, at the margin, others shift their opinion pieces to the internet, will this effect the relative content, quality, and market power of Big Media?

You might also consider the barbarians at the gate--formerly silent people who, with the spur of blogging in our sides, now fancy ourselves writers. We began as amateurs, but we're getting better; day after day, month after month, year after year we polish our style and refine our thinking.

To me, appearing in the gated internet would be a mark of success. Currently, Big Media itself conveys respect and a large readership to contributors. Their gates, whether for current issues or archives, don't immediately change that.

I've never submitted an Op-Ed, and probably never would have if not for the practice the open internet has given me. But the future looks very different now. I can see those gates, and publishing on the other side may be within reach.

Here's to absurd optimism!

I sincerely wish Kevin good luck. But I still wonder how long Big Media will be a much greater source of authority and respect, when it comes to opinion writing, than the most respected and visited internet outfits. I agree with Tyler and others that news reporting is another matter entirely. To date, internet opinion outlets largely rely on Big Media for the facts.

 
[David Bernstein, 9/30/2003 04:43:03 PM]
Professor of Terror: A fitting epitaph for Edward Said.

 
[David Bernstein, 9/30/2003 04:30:47 PM]
Inane Quote of the Day: Heard on NPR, local news segment: Recent immigrants "provide labor and pay their taxes, yet are treated like second-class citizens."

Actually, they are treated like noncitizens, which makes sense, because that is what they are.

 
[Eugene Volokh, 9/30/2003 11:45:13 AM]
Could Novak be legally ordered to testify about who leaked the Plame information to him (if, that is to say, someone did)? The answer is generally yes. (I'm still not "off the fence" [see below], but on this point at least I'm talking about a field I know something about -- and, to the extent I don't know, I need to learn for my real job -- and which doesn't require me to learn a lot of facts about the Plame affair.) [UPDATE: See here for a possible caveat to this answer.]

1. The Supreme Court holding: Branzburg v. Hayes (1972) held that journalists generally do not have a First Amendment right to refuse to reveal their sources, at least unless the investigation is "instituted or conducted other than in good faith," or involves "[o]fficial harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources." This was said in the context of grand jury subpoenas related to criminal cases -- "there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation" -- but the Court's logic seems to apply equally to civil cases and to other proceedings.



2. Lower courts, however, have followed Justice Powell's concurrence in Branzburg rather than the majority holding, and have concluded that journalists do have a "qualified" privilege not to reveal their sources, i.e., a presumptive privilege that can be overcome by a showing of sufficient government need. It's a bit odd that courts have followed the concurrence, because Justice Powell signed on to the majority opinion, so even though he provided the fifth vote, it should be the majority opinion's text that is the law and not Justice Powell's concurrence. Nonetheless, that's what courts have done, including in the D.C. Circuit, where these proceedings are likely to take place. See generally Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Zerrilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Clyburn v. News World Communications, Inc., 903 F.2d (D.C. Cir. 1990).
   
        But even under this qualified privilege, Novak would probably be compelled to testify. Even in civil cases (typically libel cases), reporters can be required to testify if the information is critical to the case, and there seem to be no other convenient alternatives for uncovering it. The rule in criminal cases is at least as pro-disclosure, and probably even more so. Since this evidence is critical to identifying who may have violated the law, and since it's hard to see how prosecutors can realistically uncover it without asking Novak or one of the other reporters, Novak probably won't have a privilege.



3. A federal statute, the Privacy Protection Act of 1980, 42 U.S.C. secs. 2000aa et seq., limits the federal government's ability to search reporters' notes for documentary evidence, but doesn't limit the government's ability to subpoena reporters and order them to testify about whom they talked to (and to bring along their notes to be examined).



4. The Attorney General's Guidelines on such matters (enacted at least partly pursuant to the Privacy Act of 1980) likewise limit searches but allow subpoenas. [UPDATE: See here for a different guideline that might possible lead to a different answer.]

Note: I'm quite confident about the first two items -- the constitutional rule -- but less so about the statute and the guidelines. Nonetheless, as I read the statute and the guidelines, they don't really limit the government's ability to subpoena Novak and other reporters, at least in a case like this one.

     None of this tells us whether Novak and the others will be subpoenaed, or whether they would comply with a subpoena (though if they don't comply, they can be jailed for contempt of court, or fined, until they do comply). It only relates to whether such a subpoena would be lawful.

UPDATE: Howard Bashman points to this recent decision by Judge Posner, which talks about Branzburg and the court of appeals decisions on the constitutional privilege, and which also flags the existence in some circuits (though not, to my knowledge, in the D.C. Circuit) of a federal common law reporter's privilege. This doesn't really affect my analysis above, but I mention it because it might be interesting (and readable) reading for those who are intrigued by these issues.

 
[Eugene Volokh, 9/30/2003 09:14:24 AM]
Inimicus curiae briefs: Lawyers know about amicus curiae (friend of the court) briefs, which give interested or expert third parties an opportunity to provide courts with a perspective that the parties might have omitted. But we more rarely hear about inimicus curiae briefs, even though it turns out that many supposed amicus briefs are, in fact, inimicus briefs that have been, er, accidentally mislabeled.

     A few tips for writing inimicus briefs from someone who's read a few. (Warning: Likely not very interesting to many nonlawyers.)

1. Focus primarily on repeating the arguments of your favored party. After all, anything worth saying once is worth being said by everyone who wants to say it. The official term for this (originally from Law French) is the "moi aussi principle."



2. If you do have a genuinely original twist to add to the analysis, don't just stick with it -- that's bad form. Be sure to surround it with lots of other points that echo what your favored party says (see item 1 above). A ratio of 10 page of repetition to 1 page of new material is the norm, though experts believe that even this is too low.



3. Always include lots of general rhetoric, such as "The importance of the timeless guarantees of the First Amendment cannot be overstated in our marketplace of ideas, and the republic on which it rests." Judges and law clerks just love that sort of stuff. This is especially true when filing briefs before the Supreme Court. The sorts of close and difficult cases that the Court hears are almost always decided primarily by applying general slogans. In fact, it's considered disrespectful of the Court to focus on mere factual details, or to use more mundane language.



4. Always keep in mind that (according to Rule 3.7), "The primary purpose of an inimicus curiae brief is to allow the inimicus to tell donors and other supporters that the inimicus Has Filed A Brief Before The Court expressing the timeless verities for which the inimicus and its supporters stand." Any departure from this purpose is frowned on.

 
[Jacob Levy, 9/30/2003 08:59:51 AM]
Moving to Type: The former baude.blogspot.com, home to present and former U Chicago undergrads, lots of legal and political theory and entertaining commentary, is now http://www.crescatsententia.org/, with all the fancy Movatble Type stuff that goes with it. Do the usual with your links and blogrolls...

The number of blogs I regularly read that are still powered by blogger continues to dwindle: Oxblog, Mark Kleiman, and Josh Cherniss [UPDATE: Whoops! I fogrot the indispensable Legal Theory!] are the only ones I can think of offhand, except of course this one (and we're not hosted by blogspot anymore).

 
[Eugene Volokh, 9/30/2003 08:18:11 AM]
Amusing blog title: "Three Years of Hell"; subtitle "To Become The Devil." It's the blog of a Columbia law student. Special thematic bonus -- an update on the blogger and the seven deadly sins on the right hand side. Actually, seems like a pretty good blog, based on my quick skim. Don't know the blogger, but he's apparently one Anthony Rickey. (Theological warning: Whatever one thinks of law school, the assertion in the blog subtitle as to becoming the devil is almost certainly false.)

 
[Eugene Volokh, 9/30/2003 08:11:18 AM]
The government and light speed: InstaPundit points to a Wired article:

"I still believe in e=mc˛, but I can't believe that in all of human history, we'll never ever be able to go beyond the speed of light to reach where we want to go," said Clark. "I happen to believe that mankind can do it."

"I've argued with physicists about it, I've argued with best friends about it. I just have to believe it. It's my only faith-based initiative." Clark's comment prompted laughter and applause from the gathering.

Gary Melnick, a senior astrophysicist at the Harvard-Smithsonian Center for Astrophysics, said Clark's faith in the possibility of time travel was "probably based more on his imagination than on physics."

While Clark's belief may stem from his knowledge of sophisticated military projects, there's no evidence to suggest that humans can exceed the speed of light, said Melnick. In fact, considerable evidence posits that time travel is impossible, he said.

"Even if Clark becomes president, I doubt it would be within his powers to repeal the powers of physics," said Melnick, whose research has focused on interstellar clouds and the formation of stars and planets.

This is all just an excuse for me to bring up one of my favorite lines, which I think dates from the early days of the 55 miles per hour speed limit:

186,000 miles per second. It's more than just a good idea; it's the law.

 
[Eugene Volokh, 9/30/2003 05:05:17 AM]
The fence: Mark Kleiman urges some named people, including me, "to get off the fence" as to the Plame affair. I appreciate being mistaken for a professional pundit, which is to say someone whose job it is to opine on various matters that are in the news. But as it happens, I'm an amateur pundit, which is to say someone whose hobby it is to opine on various matters that are in the news. One advantage of being an amateur pundit is that I can choose my hobby-horses.

     My favorite hobby-horses are ones that (1) I know a lot about, so they require relatively little work for me (hence the not infrequent posts on various free speech issues); (2) I feel I have something new to say about (hence, for instance, the weird detour into the number of sexual partners that the median American male homosexual has), so that I feel my work would be worthwhile, and a pleasure; (3) require mostly armchair thinking based on stuff I already know; (4) strike me as unusually interesting; (5) come around when I've got relatively little real work to do, or a relatively great urge to procrastinate instead of doing that work; or (6) best yet, have as many of the above traits as possible.

     The Plame affair has none of these attributes. Mark probably suspects that it has an attribute that is actually a negative for me -- it may well involve bad behavior by what is generally "my side" -- and if he does suspect this, then he's right. All things being equal, I have more fun pointing out the seeming warts of those who are generally more or less on the other side than of those who are generally more or less on my own. On the other hand, where some of the positive attributes are present, I do speak out against "my side." I just don't feel much of an obligation to do so, just like I don't feel much of an obligation to defend that side, either.

     So if you want someone to write about a subject he knows nothing about, a subject that others already seem to be exhaustively covering, a subject that requires him to read an increasing volume of sources and commentary (before one gets off the fence to accuse people of serious crimes, one would have to invest some effort to make sure one has one's facts right), a subject that he doesn't really find fascinating, at a time when he's pretty busy with other things -- why, then, you know what you're asking him to do. You're asking him to work. And you know what it is customary to give those who work.

     Since none of this customary substance has been forthcoming to me for my blogging, I'm leaving the subject to Mark, Dan, Jacob, Pejman, and everyone else who likes to write about it, with my thanks for devoting their time and energy to this public service. To them, it's fun, or at least interesting, rather than work -- which is as it should be. In exchange, I promise not to try to make them work in the future on those subjects that are fun for me but would be work for them.

 
[Eugene Volokh, 9/30/2003 04:04:28 AM]
Word of the day: Mulct; and, yes, I have see it used, and not just by lawyers. "Lct" -- what a nifty and unusual consonant combination, at least at the end of a word in English. It's one of my favorites, right up there with "miasma" and "pizzazz." (No, not to use, of course; to admire the esthetics of, and to be amused by.)

Monday, September 29, 2003

 
[Eugene Volokh, 9/29/2003 04:29:37 PM]
Busted! Kevin Drum writes:

GET TO WORK!....After writing three posts in two hours, Eugene Volokh's next post is this:

Even more swamped than usual, sorry to say. Will probably be unable to respond to virtually all the messages I've been getting; my apologies, as always.

Nineteen minutes later he has a post up about someone being sentenced to home confinement for illegally posting a movie online.

Heh heh. Maybe you'd be a little less swamped, Eugene, if you were actually doing your work instead of blogging all morning....

(Just kidding, of course, since there are always a few people who take these jokey posts seriously. It just struck me as kind of funny, that's all.)

Yes, I admit it: I have Compulsive Blogging Disorder. Actually, two of the posts Kevin mentions were actually composed over the weekend, and posted Monday -- but my feeling the need to say this just shows that I'm in denial, I suppose. And what does my posting this response show?

     Actually, I did get a good deal of work done on my Crime-Facilitating Speech article. Honest.

 
[Eugene Volokh, 9/29/2003 03:52:25 PM]
Free speech at Cal Poly: If you want to read the proposed Internet speech code resolution from Cal Poly that I mentioned yesterday (it was rejected by the Cal Poly committee, 6-4), see here. Key language:

RESOLVED: That the following wording be inserted as "Policy Application" in item 1, section D. of the Cal Poly Information Technology Resources Responsible Use Policy: To promote the University’s commitment to "providing an environment where all share in the common responsibility to safeguard each other's
rights, encourage a mutual concern for individual growth and appreciate the benefits of a diverse campus community", the University does not permit of the use of its computing resources for non-University purposes that could create a hostile environment, including, but not limited to, transmitting sexually explicit, racially or ethnically degrading material

(Note that the policy by its terms applies "to any user of the University's information technology resources, whether initiated from a computer located on or off-campus," which presumably includes students and student newspapers and organizations as well as faculty and staff; and the declarations that precede the resolution clearly contemplated that the speech code would apply to students as well as faculty.) "Sexually explicit" is defined as

(i) any description of or (ii) any picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity, sexual excitement, sexual conduct or sadomasochistic abuse, coprophilia, urophilia, or fetishism