Saturday, November 08, 2003

 
[Cori Dauber, 11/8/2003 04:24:53 PM]
Violent Deaths in Iraq I've mentioned before that I am very bothered by the stand-alone phrase "violent deaths in Baghdad have increased" when reporters want to make the case that the security situation has worsened -- by which they mean crime, lawlessness. This is followed, inevitably, by statistics from Baghdad's version of the county morgue.

But those figures just strike me as utterly meaningless as a measure of "violent death" in Baghdad or Iraq pre-war. There was plenty of violent death to go around in Saddam's Iraq that was kept off the books, as we know now (hat tip, Instapundit.) Would it be so difficult for reporters, who are trying to make a legitimate point about street crime, to simply throw in the contextualizing phrase "street crime" when they are discussing this issue, rather then the totalizing phrase "violent death" which just erases all the pain and suffering that was caused by the state as if it never happened?

This number just reemphases for me the importance of this complaint, which I made last Wednesday. I find that rhetorical move profoundly offensive.

 
[David Bernstein, 11/8/2003 06:45:53 AM]
Nice Plug: Thanks to Wally Olson of Overlawyered.com for a nice plug for my book You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, which he says is "highly recommended."

Friday, November 07, 2003

 
[Eugene Volokh, 11/7/2003 02:38:45 PM]
Oral sex is not adultery: So the New Hampshire Supreme Court has just ruled. The brief summaries I've heard describe the court as ruling that homosexual sex isn't adultery, but that's only half the story: The court specifically said that "Homosexuals and heterosexuals engaging in the same acts are treated the same because our interpretation of the term 'adultery' excludes all non-coital sex acts, whether between persons of the same or opposite gender."

     So it seems like Bill Clinton (as reported by an Arkansas state trooper) was right all along, at least under New Hampshire law. Florida, Georgia, South Carolina, and New Jersey, however, apparently do treat nongenital extramarital sex as adulterous, though I'm taking the dissent's word on it -- haven't checked the cited cases myself. The same, by the way, applies to all forms of nongenital sex, including anal sex as well as oral sex.

 
[David Bernstein, 11/7/2003 10:50:17 AM]
"Racism": It seems like anyone these days can throw around the term "racism" to try to suppress any campus speech that they don't like. How, exactly, can pointing out in an ad that Palestinians in Lebanon celebrated the 9/11 attacks possibly be construed as racism? Bravo to the editor-in-chief of the Stanford Daily, who refused to kowtow to such nonsense.

 
[Jacob Levy, 11/7/2003 09:01:33 AM]
Democratic primaries New Hampshire native and primary junkie hat on:

Kevin Drum discusses a rule change that could lead, for real this time, to that perpetual fantasy of political reporters: a brokered convention.

After reading Noam Scheiber's analysis of the Dean campaign and manager Joe Trippi, and reading about SEIU's endorsement and the impending AFSCME endorsement, on the other hand, I'm starting to get that "Dean's a mortal lock unless he really, deeply screws up" feeling. The combination of a strongest-in-the-field-by-far grassroots organization, the most money, and a respectable-or-better showing in the contest for big establishment interest groups like unions-- that's a bigger campaign-resource lead than Mondale had at this time in 83, and Dean doesn't have Mondale's liabilities.

The usual primary-season story would go that the big establishment candidate (Kerry, though it could have been Lieberman under other circumstances) would coast through the pre-election year as the obvious front-runner, with lots of money and endorsements, then get an unpleasant scare early in the election year from the upstart who had spurred grassroots voter excitement (Dean)-- then go on to a comfortable victory because the upstart couldn't translate grassroots excitement into the organizational and financial resources necessary to compete once Iowa and New Hampshire were over. Mondale-Hart, W-McCain, HW-Buchanan, Gore-Bradley, etc, etc. For the grassroots-exciting upstart to be ahead in resources early on is a very different dynamic.

It seems to me that since at least 1984, and arguably 1980, neither party has upset the candidate who was the front-runner in December (though there's usually a good scare along the way). Gary Hart in 1987 is probably the last front-runner to get upset at all-- and he self-destructed in June of 87.

Don't count me as thrilled by this by any means. I'd still love to see Lieberman pull a rabbit out of his yarmulke and win it all; and Dean grates on me. But-- delegate-allocation rule-change or not-- I'm starting to have a hard time seeing anyone beat Dean. Clark entered the race partly because of a sense that no one but Dean had gained any traction, and that the number-two position in the race was still up for grabs. But I don't think Clark's getting any traction, either.

 
[Tyler Cowen, 11/7/2003 08:47:21 AM]
Rock music and capitalist freedom: Listen to what the Hungarian ambassador will likely be saying:

"Hungary's ambassador to the United States is coming to the Rock and Roll of Fame to explain his belief that when rock 'n' roll found its way into his country, it helped spark a yearning for freedom and an eventual end to a communist government."

Simonyi, 51, an economist, is convinced rock music was as key as any political or economic factor involved in the Hungary's change...

"Not only for me but also for other Hungarians of my generation, this became the stuff that really linked us to the free world," he said. "As I listened to this kind of music, I felt I was part of the free world myself."

In a nation where the governing party frowned upon rock music, Simonyi said he and his friends always found a way to gather collections. They would trade or borrow tapes and records smuggled into the country. They also would try to listen to Voice of America, Radio Free Europe and other foreign stations.

"I started out with the Beatles, but then I pretty much moved on," Simonyi said. "I embraced the really exciting and progressive part. I became a great Cream fan and Jimi Hendrix fan. There was one hero that I had, and this was Stevie Winwood, who established the group called Traffic."

Yes, this is the same rock and roll that many of the cultural conservatives told us was ruining Western civilization. Thanks to Mike Daly for the pointer.

 
[Jacob Levy, 11/7/2003 08:35:13 AM]
Political compass: Several people have e-mailed to ask why I haven't joined the blog-game of posting my political compass score.

Answer: even by the standards of these kinds of things I find the political compass questions hopelessly weird. This thing has been online for years and I occasionally go back to it to see whether it's as weird as I remember-- lots of questions that have no apparent relationship to politics as I understand it, lots of questions that I don't even know what a real answer to them would look like.

And I don't get the same results on successive retakings, so there's no reliable score to report. I'm not saying that the software miscalculates. I'm saying that, to many of the questions, I don't give the same answers on successive retakings and I can't even remember what I said before. I leave some questions blank, squint real hard at others and decide that I guess I can say something. If I wait a couple of days between retakings my score can jump around a lot even when I'm consciously trying to approximate the answers I gave before-- and sometimes it can jump pretty far away from any reasonable assessment about my political views. And my underlying political disposition just doesn't change that much from day to day.

Have any of the bloggers who've publicly recorded their scores retaken the quiz?

 
[Jacob Levy, 11/7/2003 08:27:23 AM]
Rawls and the law: Lawrence Solum is blogging from the "Rawls and the Law" conference at Fordham over the next couple of days. Stare here, scroll up, and keep checking back...

 
[Tyler Cowen, 11/7/2003 07:53:24 AM]
The difficulty of predicting the distant future: Lately I've been working on a piece on the so-called "epistemic problem" in philosophy. Many critics argue that the long-run difficulty of predicting the future means that we should not be "consequentialists," namely concerned with the good (or bad) consequences of our actions. Utilitarianism, of course, is one form of consequentialism. Here is an explanatory paragraph from my current draft:

"To view the point in its most extreme form, what if John bends down to pick up a banana peel? If nothing else, this action will likely affect the identities of all his future children, if only by changing the timing of future sex acts by a slight amount (Parfit 1987), or by reconfiguring the position of John�s sperm within his testicles. And a different set of people will, in many cases, cause the world to take a very different path. We need only postulate that some individuals, or some leaders, play a significant role in shaping what happens. We can multiply this kind of conundrum in numerous directions. If Hitler's grandmother had bent down to pick one more daisy, European history would have taken a very different (and hard to predict) path. One extra sneeze from one caveman, millennia ago, probably would suffice to change the entire course of world history. Given the workings of genetics, and the importance of individual identities, virtually all small changes in initial conditions will have very large effects in the long run. Furthermore we do not have a very good idea of how those effects will play out."

After all, should you really be very happy to today's unemployment rate was announced at six percent, far better than expected? We've reshuffled the entire future history of humanity, and in an unpredictable way. Maybe we should be happy by only the tiniest smidgen (we are sampling only a tiny fraction of the real change that happened), but this seems counterintuitive to many people, including myself.

I am very much a consequentialist, and I doubt if the "epistemic problem," while a fun conundrum, overturns a concern with good consequences. If you know of anything good written on this problem (I know the philosophy literature much better than the law literature), please let me know. And at some point I will put my paper on-line.

 
[Eugene Volokh, 11/7/2003 06:16:36 AM]
One problem with Moussaoui's trying to represent himself, pointed out by Howard Bashman -- check out the docket entries in the appeal, especially starting at page 4 (e.g., "20th HIJACKER DIRTY JEW SYMPATHISER . . ." and ""20TH HIJACKER NO APPEAL FOR A WANNEBE CATHO-FACHO AND A BOUDIST AMERICAIN KAMIKAZE"). Maybe he should next file a Motion to Kiss My Ass" (Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga. 1996)) (moving that "all Americans at large and one corrupt Judge Smith . . . kiss my got [sic] damn ass sorry mother fucker you").

     Fortunately, the constitutional right to self-representation at trial (Faretta v. California (1975)) doesn't apply on appeal (Martinez v. Court of Appeal (2000)), so at least on appeal Moussaoui has a real lawyer; and it looks possible that he'll be stripped even of his right to represent himself at trial (which may happen when "a defendant . . . deliberately engages in serious and obstructionist misconduct"). It's hard to see how people can have great confidence in the truth-finding outcome of a trial where the defense is conducted by someone like Moussaoui (even if he tones down the rhetoric, since the rhetoric is just evidence that he can't or doesn't want to take the trial seriously).

 
[Cori Dauber, 11/7/2003 05:54:45 AM]
Where You Sit Determines Where You Stand Because people think Fox is right wing, when they don't spend all day of the anniversary "eulogizing" President Kennedy, a "democratic icon," it's more proof of that tilt. But when NBC and CBS, which are perceived as "neutral" (I'm inserting my assumption there) when they don't plan a primetime special, it goes unremarked.

 
[Cori Dauber, 11/7/2003 05:43:32 AM]
Clear Up the Myths Several myths are just in the air about who said what when about the rescue of Jessica Lynch, and they are being repeated now that her book is out and with the Diane Sawyer interview. Let's go back to the original Washington Post article that was since corrected, shall we? Note first of all, that contrary to what many believe, the reports that she was shooting her way out, etc, did not come from CENTCOM briefers but from officials reporting initial intelligence reports that at the time they noted were likely to change.

(So when Bill Hemmer says on CNN this morning, "there was that piece in the Washington Post that credited all those officials at CENTCOM" talking about her trying to shoot her way out of the capture, he is repeating what everyone remembers, but everyone remembers wrong.) Note second, contrary to the notion floating around after the BBC documentary, the official briefers, as reported by the Washington Post from the beginning said that there was no shooting inside the hospital although things were tense and there was danger outside the hospital.

Finally, the canard that the special forces troops were "firing blanks" comes from a single interview in that same BBC documentary. It is, frankly, absurd. Ask anyone in the special forces community or anyone who has ever met or talked to anyone who in that community -- whatever else they do, they don't fire blanks when they fire their guns. What they do do, in situations where civilians (like, say, hospital staff) may be in a building and they don't want to kill people but they want to ensure no resistance by moving in and out quickly, is to use "flash-bang" grenades.

 
[Cori Dauber, 11/7/2003 05:14:26 AM]
Gee, This is Ironic: Don't get me wrong -- there is no such thing as neutral language, and to demand that reporters (or anyone else) find a way to write or to speak that is neutral is setting a standard that is humanly impossible to meet. The best anyone can do is to try and be sensitive to the assumptions and associations and arguments that are implicit in the words and choices they use, and what is left for us to do is to be careful critics of those choices. And "critics" in this sense does not necessarily mean "complainers" it can mean, "reading with a critical eye, being careful unpackers of assumptions."

But there are times and instances where the choices made are in some way loaded, and then we need to point those out, if only because making them explicit allows us to see them in a way that makes us less open to being swayed by them. And there are other times and places where the choices made are so loaded that we need to make them explicit because we want to be "critical" in the other sense. And that's why I'm delighted to see this new policy from the Los Angeles Times.

One of the obvious difficulties reporters face is that in the immediate aftermath of a violent act, they need a noun, and the noun may not be obvious. Was it indigenous Iraqis, in which case those other words the article talks about come into play -- insurgents, guerillas? Or was if "foreign fighters"? And if it was foreign fighters, how ironic for Reuters of all outlets to be reporting this. Why is anyone still using "foreign fighters" at all? What we mean when we say that is jihadists, terrorists. So lets say that. Unless, like Reuters, we've decided to ban that word outright.
Update: A reader reminds me that it is probably worth adding this layer of precision. I think the jihadists coming in from outside the country are terrorists. But individual acts are defined as terrorism, and I have made this point before, based on whether they target non-combatants. I would call these people "terrorists" as a general term, while distinguishing between particular actions, by the way, because I think the groups to which they belong have pretty clearly established that they are willing to participate in terrorism as a tactic even if it is not the tactic they choose every time out of the gate.

Thursday, November 06, 2003

 
[David Bernstein, 11/6/2003 04:21:40 PM]
Freedom of Expressive Association at Yale: I just came across this priceless quote from one of the Yale Law School professors who joined the lawsuit claiming that the federal government's policy prohibiting federally funded universities from discriminating against military recruiters violates the First Amendment right to expressive association:

The freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation's anti-discrimination laws. Every anti-discrimination law impedes, burdens the freedom of association, association being a slogan of the people in favor of Jim Crow, and against Brown versus Board many decades ago.

There you have it: being in favor the right of expressive association against antidiscrimination laws (including, presumably, the law banning discrimination against military recruiters) implies support for Jim Crow. So much for the Yale faculty members' lawsuit.

By the way, I don't see how being in favor of "freedom of association" implied support for Jim Crow, given that Jim Crow laws prohibited freedom of association by requiring segregation. Admittedly, some Jim Crow supporters did suggest that "forced" integration in public would violate their right of association by forcing them to associate with blacks; but required segregation violated the association rights of those who wanted to integrate. Indeed, the segregation laws were far greater restrictions on associations. The federal government could "force" public schools to have black and white students in the same classroom, but couldn't force the white kids and the black kids to socialize with each other. The Jim Crow laws prevented blacks and whites both from being in the same public space and also from socializing in public if they so chose. The freedom of association argument was much stronger on the anti-Jim Crow side, and even on the side of civil rights activists who advocated replacing Jim Crow laws with laws banning discrimination in private enterprises.

 
[Sasha Volokh, 11/6/2003 03:30:56 PM]
The word "comrade": I was cruising the best Russian poetry site today; it's called "Stikhiia," which is a pun on "stikh," meaning a verse, and "stikhiia," meaning element, so it's like "the element of verse." Anyway, their featured poem of the day was by Mikhail Ancharov (1923-1990), and I was reading it, thinking it was pretty and flowed easily and musically, when in the middle I figured out what it was really about! Here's the Russian version, and here's my translation:

My father told me,
"You go find yourself a word,
So that, like a song,
It would lead you after it.
Seek it with faith,
With hope, with love --
And then it will become
Your destiny."

I searched in the clouds,
And in the smoke of battlefields,
On green fields,
And in the dead ash.
But it seems to me
That I haven't found anything
Better than the word "comrade"
On this earth.

In this word is fate
To the last breath.
In this word is the hope
Of earthly cities.
With this sacred word
An epoch raised up
The crimson sail of hope
Of the 1920s.

Crimson sail, indeed. Yes, the poem is called "The Word 'Comrade,'" but I didn't notice that at first. Ancharov has also written The Ballad of the Parachutes and The Ballad of the T-34 Tank.

 
[David Bernstein, 11/6/2003 01:32:43 PM]
Reaction to Column on Affirmative Action Bake Sales: Yesterday, I posted a link to a column by Bruce Ramsey in the Seattle Times on the controversy over an "affirmative action bake sale" at the University of Washington. With Bruce's permission, I reprint an email he received in response, along with his excellent reply:

Dear Mr. Ramsey:

We read your column and looked at your photograph, and what we came away with is the fact that a white, middle-aged man in a position of power and privilege is assailing a group of minority students who were provoked by the College Republicans' racist statement into taking direct action to stop their harassment. What could you possibly know about the motivations that caused these young people to become so angry?

You live in a different world. There isn't much difference between that sign and a slap in the face. The "College Republicans" got what they deserved. I'm quite sure that nothing we or anyone else can say will change your mind, but so what? You'll continue to reap the benefits of the system, just as you have all your white male life. Ranting about the First Amendment transgressions of a small group of college kids only serves as a distraction. The Grown-up Republicans ongoing attack on American civil rights (including free speech) is much more serious.

Ramsey replies:

1. I didn't see any racist statement from the College Republicans. They were condemning racism. But from you, I hear that because I am white I think a certain way, and therefore can be dismissed.

2. Your terms, "assail" and "slap in the face" and "direct action" willfully obscure the distinction between words and physical assault. My "assailing" and the College Republicans' "slap in the face", both of which suggest physical assault, were in truth WORDS; and the minority students' "direct action," which is a term deliberately unclear, was in truth a PHYSICAL ASSAULT. There is a difference. Words are protected by the Constitution; physical assaults are not.

3. If you think its OK to suppress the College Republicans, how about me, or my column, or the Seattle Times? If you think the CR's engaged in a "slap in the face," and you think I am "assailing" and "harassing," should I be arrested for this column, and sent off to diversity training?

4. If the Grown-up Republicans are taking away the people's civil liberties, does that make it any better if the Un-grown up Leftists at the UW are doing it too? And think about this, as you sound very much like a Lefty yourself: If America accepts the idea that certain speech may be policed, that objectionable speakers can no longer "rant" about the First Amendment, WHO do you think will control what is acceptable speech and what is not acceptable speech? Not you. Believe me, not the Left. That is something the Left ought to think about.

Ramsey's last point is indeed something for the Left to think about. I could never figure out why it's members of the radical left in legal academia--the Critical Race Theorists and the censorious wing of the feminists--that are the leading advocates of weakening the First Amendment. Are they not aware that their views are wildy out of the American mainstream, and that they themselves would inevitably become the targets of censorship if the principle that the government may not discriminate with regard to speech based on the viewpoints expressed was weakened? This is true even if the damage to the First Amendment could be limited to so-called "hostile environment" claims. For example, conservative Christian students could claim that radical feminist professors create a "hostile environment" for them by denigrating traditional marriage, traditional sexual morality, and what they call "patriarchy." A few such complaints have already been recorded. There are a lot more conservative evangelicals in the U.S. then there are radical feminists or CRT sympathizers, and it just defies common sense that the latter groups want to leave the scope of freedom of expression in the hands of the majority.

UPDATE: Cheers to the administration at Indiana University-Bloomington, for not trying to suppress an affirmative action bake sale, despite being requested to do so.

FURTHER UPDATE: "Mr. Fed" aptly comments:

What is scary is the breathtakingly abject stupidity of this totalitarian strata of the new Left about the likely impact of erosion of free speech. Here's how their thinking apparently goes: "The First Amendment has traditionally been used to protect straight white males and their interests because of our racist patriarchal society. So let's fight to forge exceptions to free speech protections. Because, hully gee, there's no reason to expect that exceptions to the First Amendment will be imposed disproportionately against minorities, women, gays, the poor, and the Left. Golly, no. I mean, the huge body of First Amendment law created when people attempted to suppress the civil rights struggle is just a fluke. It's imperative that we give this society's power structure -- the power structure that we routinely deride as hopelessly oligarchic, racist, sexist, and classist -- the power to suppress disfavored speech. We're confident that it won't be missused."

Of course, they are free to beg for the state to help them chain themselves. The First Amendment protects not only those who would, if given the power, eliminate free speech(such as the Nazis marching at Skokie) but also people too powerfully stupid or blinded by cannon to appreciate the value of the free speech rights they enjoy.

 
[Sasha Volokh, 11/6/2003 11:44:23 AM]
Star Trek: I'm looking for a good Star Trek reference guide. I found The Star Trek Encyclopedia: A Reference Guide to the Future on Amazon, which seems like a really good encyclopedia, but what I'm looking for -- which I think I saw once -- is more of an episode by episode guide, at least to the original series and ideally to the spinoff series too. Anyone know what I'm looking for? (I fear that I will now be flooded with answers.)

 
[Jacob Levy, 11/6/2003 11:04:58 AM]
Leszek Kolakowski: Leszek Kolakowski, Professor Emeritus of Philosophy and Social Thought here at my own beloved University of Chicago, and also formerly a professor at McGill, Berkely, and All Souls College-Oxford, has been awarded the "first John W. Kluge Prize for Lifetime Achievement in the Human Sciences... given for lifetime achievement in the humanities and social sciences -- areas of scholarship for which there are no Nobel Prizes. These disciplines include philosophy, history, political science, anthropology, sociology, religion, linguistics and criticism in the arts and literature."

Quoth Brian Leiter, with his characteristically light touch:

The first choice for this prize is so patently politically motivated that the Prize has already discredited itself before it gets off the ground. Kolakowski has long been a favorite of conservatives being one of the few prominent humanistic intellectuals on the "right" (in some suitably loose sense of "right"). His best-known work, the 3-volume Main Currents of Marxism, is a useful reference work, but that's all: it is comprehensive, detailed, and relentlessly superficial philosophically. His other works of philosophy--books on Hume, on Husserl, etc.--are largely irrelevant to philosophical scholarship, rarely discussed, barely known.

Shame on Amartya Sen for being part of the selection panel that produced this choice...

Given that Kolakowski's work isn't even "recognized as outstanding" by his peers in philosophy, how did he make it through this "screening" process? If we were to take all the criteria seriously, a short-list of far more credible choices comes immediately to mind:

Noam Chomsky
Eric Hobsbawm
Clifford Geertz
the recently deceased Richard Wollheim (alas...)
John Searle
the recently deceased Edward Said (alas...)
Quentin Skinner

That's off the top of my head; surely a selection panel and nominators thinking about this seriously, and without regard to political pandering, would come up with even more scholars who actually meet the official criteria.

It is a depressing spectacle to see philosophy cheapened in the public arena repeatedly for blatantly political reasons. Couldn't they have picked a second-rate conservative historian or sociologist for the first prize? Sigh...

I'm not quite sure what to say to this, in part because I'm not a philosopher myself and I'm really not in a position to evaluate Kolakowski's work. I will note a few oddities, thought.

1) If one were looking for a right-wing political-pandering choice, one might have expected both someone who is better known to the conservative Republican semi-academic Washington crowd and someone whose affiliation with the right is a bit less "loose." The Polish-born Kolakowski was originally a pretty orthodox Marxist, became a sort of Marxist humanist, and has as far as I can tell been engaged in a decades-long meditation on the dialectic between the truths of socialism and Christianity. (Randian readers just spat up coffee all over their computer screens, didn't they?) He is an avowed social democrat, and the author of one piece entitled "How to Be a Conservative-Liberal-Socialist," which I'm pretty sure he wasn't asked to give as an after-dinner speech at AEI. He was active in support of Solidarity from exile, but that's hardly the exclusive domain of right-wingers.

This "favorite of conservatives" turns up once in the archives of National Review Online. (Contrast: Jacques Barzun, Paul Johnson, Bernard Lewis, Harvey Mansfield, Jean Elshtain, Robert Conquest. (Now, it might be objected that, say, Paul Johnson isn't relevant here, given his standing within the field of history. But it's Leiter's charge that the selection panel ignored in-discipline standing and went for the right-wing political pander-- a strategy that surely would have brought Johnson higher on a list than Kolakowski.) A Nexis newspaper search on Kolakowski turns up some admiring 90s-era commentaries on his having criticized Polish Communism, but nothing that looks like he is well-known to American conservatives or thought of as one of them. A Nexis magazine search does produce a couple of admiring Weekly Standard references, but they're the sorts of things one sees about Isaiah Berlin, too-- the critique of utopianism and so on. His books do not seem to get reviewed in either newspapers or non-academic magazines, which doesn't fit the profile of a political pander choice.

2) Kolakowski has been a MacArthur Prize winner, which is not a guarantee of status as a genius but serves as a pretty reliable proxy for not being a favorite of the right-- and which counts for something when awarded to humanistic intellectuals. (The awards to activists and artists are, of course, sometimes dubious.) He has also given the NEH Jefferson Lecture, which along with the National Humanities Medal is probably the highest heretofore-granted-by-the-U.S.-government humanities honor. He is a fellow of the British Academy, the Acad�mie Universelle des Cultures, and a Foreign Fellow of the American Academy of Arts and Sciences.

3) When I go to JSTOR, I find that, say, Jon Elster-- a man of the left and not a notoriously gentle reviewer-- wrote the following in his 1981 Ethics review of the Main Currents of Marxism trilogy.

These superb volumes will remain a basic work of reference on Marxism for a long time to come. Kolakowski has set himself the ambitious goal of writing an authoritative treatise and has achieved it brilliantly. The treatise is a demanding genre with strict laws of its own. One should dispense with discussion of secondary works, rival interpretations, and to some extent even with detailed references to the underlying sources. The goal of a treatise is to expose the chosen subject lucidly and comprehensively, not to argue at every turn for the author's interpretation. This can succees only if the author has a superior grasp of the material and superlative common sense, so that the reader can trust his interprettaion and judgment without feeling the need to check them against the sources. Kolakowski possesses these qualities to the highest degree.

4) Whether Kolakowski's writings on the philosophy of religion, on modernity and enlightenment, and on myth are of the highest quality I cannot judge. But as far as I can tell none of these is a topic of interest or expertise for Leiter, and Kolakowski is obviously not an Anglo-American analytic philosopher of the sort who Leiter thinks make all important intellectual contributions [UPDATE: Leiter objects]-- so the fact that these works are little read by or known to Leiter doesn't itself stand as much of an indictment.

5) If one were to try to make the argument that the Kluge Prize ought not to be handed out on the basis of political affiliations, including Noam Chomsky, Eric Hobsbawm, and Edward Said on one's top-seven list doesn't seem the most persuasive way to do it. Each meets the prize's criteria (except that Said does not meet the "living" criterion), but I cannot help but be struck by who sprang to Leiter's mind.

For the record, here are the first ten or so who would spring to mind for me, restricting myself to the living and therefore excluding, e.g., Gellner, Rawls and Williams: Skinner, Geertz, Elster, Tzvetan Todorov, Michael Walzer, Bernard Bailyn, Benedict Anderson, Jurgen Habermas, Albert Hirschman, James Scott, Charles Taylor-- not a one among whom has anything like my own political views. This isn't necessarily the list I would endorse after full and sustained consideration-- it's Anglophone-heavy and political-science-appointment heavy, though not heavy with either orthodox political scientists or orthodox political theorists. And I'll bet the prize ends up going to historians more often than to practitioners of any other discipline, followed by philosophy and criticism. But I'll also bet that the philosophers will look more like Kolakowski than like Leiter-- that they'll be "humanist intellectuals" rather than analytic academics. (Williams surely would have won it eventually; Berlin would have, if it had existed a decade earlier.)

6) All of that said, I don't know that Kolakowski was the right choice. Cited-references searches certainly throw up a different profile within academia for his work than for any of the others either Leiter or I mentioned (citations in the scores rather than in the thousands). So I'm not sure why I'm choosing this ground to risk a fight with Leiter. But... for heaven's sake. "Not necessarily the right choice" is a lot different from calling someone a political-pander right-wing choice, a second-rate so-called philosopher, a choice who immediately discredits the newly-established prize. How obnoxious.

UPDATE: See also Josh Cherniss, who knows Kolakowski's work and argues that the prize is deserved on the intellectual merits, but worries his anti-Communism might have played a part in getting him the prize over one of the better-known candidates. Cherniss also has some important-to-keep-in-mind comments about Leiter's views about what is and isn't intellectually respectable.

UPDATE AGAIN: Leiter responds. I shan't rejoin, except to this "minor addendum":

Levy calls Kolakowski "Professor of Philosophy and Social Thought" at Chicago, but his primary appointment was in the Committee on Social Thought (that's who hired him), and his secondary appointment was in Philosophy. I will venture, with some confidence, the opinion that the Philosophy Department would not have appointed him, if he were not already at the university in another unit.

I am quite sure Leiter is right about this. But they did appoint him, something that is not automatically done around here even as a courtesy. Philosophy in particular has been known to be quite protective of its hiring autonomy; and (this is all well-known; I'm not speaking about any particular case in my time here) regular departments have often been unwillling to grant cross-appointments to people hired by Social Thought, both because of and contributing to Social Thought's sometimes-distant relationship to the rest of the university. Departments have been very reluctant to attribute voting membership and the right to supervise their own graduate students to people they didn't choose to hire and whose ideas about the discipline they don't share. Had the Philosophy Department viewed Kolakowski as an intellectual historian and not a worthy philosopher, they would not have appointed him.

 
[David Bernstein, 11/6/2003 09:16:01 AM]
Another Story of official hostility to an "affirmative action bake sale" at a public university. And also read the comments section, where a reader claims that officials at a Texas university shut down a bake sale before it even started.

 
[Sasha Volokh, 11/6/2003 08:50:46 AM]
What do you do when procrastinating? Why, put together an archive of favorite poems, something I've been planning since I first set up my personal web site about five years ago.

Some of them are still "to come" because I couldn't find them on the Internet; I have them all in electronic form, but not on the computer I'm on now. Some of the Russian ones are still "to come" because again, I can't type in Russian on this computer, but that's a temporary condition. Let me know if I linked to a bad-quality version of the poem and you have a link to a better version (better could mean on a more established site that's more likely to stick around).

Also, the list itself is in progress. It's currently a mix of very well-known poems and very obscure ones; some were recommended by friends, many I studied in school or college, and some I came across in miscellaneous ways. You'll find that very few of them are neither rhymed nor rhythmical, and many are humorous. Currently, my favorites in English are probably the Tennyson and Browning sections; what can I say, I'm a Victorian. Some of the poems are ones I've liked since high school or before, so it's entirely possible I wouldn't find them that great if I first saw them today. Enjoy!

 
[Cori Dauber, 11/6/2003 04:56:58 AM]
Light to No Blogging Today: I'm guest lecturing for my chair (no pressure there) and we are hosting a visiting lecturer in the department who just happens to be my old debate coach as well as my doctoral advisor, so it's gonna be a day!

 
[Cori Dauber, 11/6/2003 04:54:27 AM]
Does the Narrative Frame Make a Difference? Take a look at this story. The frame is the politicizing of intelligence, not a strategy for making use of that by the Democrats at a time of their choosing. Money quote: "Democrats and Republicans now believe that the question of who is to blame for the failure to verify those original assertions [about Iraqi weapons stockpiles] will carry enormous political consequences." In other words both sides are playing politics with the essential truth -- that no WMD has turned up.

The memo is mentioned, and quoted, but what seems to me to be the absolute guts of the memo -- that an independent commission will be timed for political advantage -- is never mentioned, just does not appear in the article, a startling ommission, but one consistent with the "boys will be boys, they're both doing it" frame.

The article ends with Sen. Rockefeller's anger over the memo's disclosure, and Robert's need to defend the Republican's use of the memo, a "strong defense of Republican strategy." Note that elegant turn -- the discussion of the revelation that Democrats have a political strategy for the use of intelligence, that's the political strategy that needs to be defended here. So, in answer to the question -- yes, the selection of a narrative frame most definitely matters in what story you end up with.

 
[Cori Dauber, 11/6/2003 04:04:33 AM]
Don't Say I didn't Warn You: Front page of the Post, front page of the Times, will we talking about this with increasing shrillness in the days ahead? Count on it. Chances are the story will get more murky, not less.
Update: Compare the two articles. The tone of the Post's article is, yeah, well, there's a story out there, we have to responsibly cover it, but, please. The Times is absolutely breathless at the possibilities here, but in their very breadth of detail they lay out a story that presents all you need to hear in terms of why the administration might not have pursued this.
Update: A front page story on the Times and the Post based in part on news broken by Newsweek, which has a relationship with NBC. What's Today's top story? An update on the Rosie trial.

 
[Cori Dauber, 11/6/2003 03:57:01 AM]
I Know What to Use it For: NPR receives donation worth twice it's operating budget, "isn't sure what to use it for." Not sure what to use it for? How about going off the public dole. Than Al Gore can take it over, they push whatever agenda they want openly and with great glee, everyone can stop complaining that a tax-payer funded outlet is subtly pushing an agenda, and we all live happily ever after.

 
[Eugene Volokh, 11/6/2003 03:20:45 AM]
Tree mange? I've noticed that the trees around Boston have been losing their leaves, making them look bare and sickly. Seems like some sort of tree disease, though to my surprise there hasn't been that much news coverage of it. Fortunately, my hometown (Los Angeles) seems not to have been infested with this, so at least that's something.

Wednesday, November 05, 2003

 
[Tyler Cowen, 11/5/2003 06:48:04 PM]
Silent dating, the new trend? Read the ever-insightful Clay Shirky on silent dating. That's right, you all show up in the same room and start passing notes to each other. It turns out you can meet many more people this way, many more than with speed dating. Plus it offers, according to Shirky, physical proximity, albeit without noise.

I wonder if this can last, if only because so many people at dating services don't really want to meet somebody, they just want to feel they are doing something about the problem. I suspect silent dating does not address their needs. Still, an intriguing idea.

Clay's interest in silent dating springs from his analysis of how you get groups to interact fruitfully, a critical topic in social science, especially in an age of blogging. If you don't already know Shirky's work, check out Clay's home page. Clay is one of the smartest people writing today, in any field. Brad DeLong appreciates him as well, and I wish he were at my university. It's worth spending several hours or more with his home page, and I don't say that lightly. I taught Shirky to my Industrial Organization class last night, and I hope to blog more about him soon.

 
[Cori Dauber, 11/5/2003 04:33:36 PM]
Emailing Dauber I am just floored by the number of folks who have taken the time and effort to email me thoughts and comments and arguments since I have been a guest Conspirator. You all have truly made opening my in-box fun, and intellectually challenging -- and utterly daunting. (It does convince me that I am right about the nature of the blogosphere. I know that many people have been talking about blogging as a new kind of journalism. But I come out of a different disciplinary background, so to me, it seems to be the new public square. Or, if you just have to have a fancy schmancy academic phrase, it's the Public Sphere for the 21st Century!)

I have been at least skimming all of them, and if there is a quick answer I can pop off then and there I've been doing so. If it would take longer to answer than I can give it at the time, I've been holding on to it. This is probably just borrowing trouble given the rate at which they're coming in, but I can't allow myself to give up the idea of at least trying to answer -- it just seems rude to leave messages sitting there when you all have taken the time and trouble and put such thought into your responses.

At the risk of making this situation even worse, let me publish the address here so you'll stop routing mail through Eugene, which I'm sure is entertaining Eugene no end, but is probably getting a bit wearing. It's cdauber at email.unc.edu and as I say, I am trying, but I am not guaranteeing. I hope that won't deter you, as I'm learning a great deal, and getting cites (and sites) I wouldn't otherwise find. Again, thank you so much for taking the effort to send me back thought provoking ideas and perspectives. And the words of support ain't bad either.

 
[Cori Dauber, 11/5/2003 04:22:02 PM]
This Statistic Makes Me Crazy: In another of their series "Where Things Stand," done with Time Magazine, ABC News tonight focuses on Baghdad, where, they argue, "violence and the dread of violence, color everything." To butress the claim, they want to compare violent deaths pre- and post-war, and the count is 16 versus 677. OK, I understand the point they want to make, and I understand what that measurement gets them, but it just makes me crazy. To suggest that the only people dying violent deaths in Iraq were those dying them that way, and counted on the books, just bothers me. A lot of people were getting knocks on the door in the middle of the night, and there's a reason all those mass graves are full. If you want to talk about security and violence, I wish they would add the phrase "on the street," or say "people dying violent deaths -- exclusive of those dying in government custody." That's all I ask, just those seven extra words.

 
[Cori Dauber, 11/5/2003 04:15:27 PM]
Here Come's Another Conspiracy Theory: I don't know what to make of this, but it sounds to me like two things will turn out to be true: First, that there was an assessment that this guy either was making himself out to be far more important than he actually was, or that like the Russian channel before Desert Storm, it was the ultimate in deception tactics, throw everyone off the scent, make it look like a complete cave, destroy the political support for all those troops in the desert -- than proceed apace. And second, either way, it will be the basis for a lot of screaming and yelling, op-ed pieces and bloviating, hearings, and pontificating, that will make it a running story for a good bit and make getting a solid analysis of the policy merits of the decisions taken virtually impossible. But that's just my guess.

 
[Eugene Volokh, 11/5/2003 03:46:17 PM]
More on the secret habeas case: Here's the Reporters Committee for Freedom of the Press amicus brief urging the Court to grant cert. Thanks to Becky Dale for the pointer.

 
[David Bernstein, 11/5/2003 03:20:50 PM]
Another Free Speech Scandal involving an "affirmative action bake sale," this time at the University of Washington.

 
[Eugene Volokh, 11/5/2003 11:50:01 AM]
The Supreme Court and the secret habeas case: Marty Lederman at SCOTUSblog reports on the call for response, and the timetable (the Washington Post was apparently mistaken when it said that "There is no deadline for Olson to file his response; the court will not decide whether to hear the case until he does."):

At least one Justice has concluded, prior to the Court's scheduled November 7th Conference on the case, that the SG should file a reponse to the petition, and therefore the Court on Monday requested a response, "due December 3, 2003." The SG can and generally does request a 30-day extension, and occasionally asks for and obtains another 30-day extension on top of that. Thus, the latest date for filing of the SG's response is probably Monday, February 2d. The Reporter's Committee for Freedom of the Press has filed an amicus brief asking the Court to grant the petition. (We'll link to the brief if and when it is posted online.)

In order for a case to be argued and decided this Term, it is likely that a brief in opposition must be filed by mid-December. Therefore, even if the Court were to grant cert, it is unlikely it will hear the case this Term.

The fact that the Court asked the SG to respond to the petition by no means assures that cert will be granted. Traditionally the Court hears approximately only 1 in every 20 IFP cases such as this one in which it requests a response. . . .

     Marty (who is A Man Who Knows His Stuff) also links to this new law.com piece on the case.

 
[Randy Barnett, 11/5/2003 11:18:05 AM]
The Ambiguous Meaning of Falling Approval Ratings: When a president's approval numbers are high, we can pretty well assume that those expressing approval like either him, his policies, or both. What does it mean when his approval numbers drop? When a president's approval numbers drop, it seems to be assumed or implied by those reporting the drop that opposition to the president's policies have correspondingly increased. So, for example, if President Bush's approval numbers drop, it will be asserted or implied that Americans are becoming disenchanted with, say, his pursuing the war in Iraq.

What makes these assumptions unreliable, however, is that, unlike approval numbers, disapproval numbers come from both sides of any president's position. A single number is used to aggregate those people who now disagree with the president's policies AND those who favor the president's policies, but who now question the degree or effectiveness to which he is pursuing them. One number is being used to represent two entirely different sets of opinions.

So a rising disapproval number for President Bush would include those who always opposed, e.g., his Iraq policy together with those who previously supported his policies and have now changed their mind (the inference usually drawn), AND those who supported and still support the policy, but see the administration weakening or abandoning its pursuit. A single disapproval number of Congress represents both those who are upset by its approval of the Bush tax cuts AND those who want more tax cuts; both those who are upset about the refusal to nationalize health care AND those who fear Congress is on the verge of taking a major step in that direction. The latter category is, in my experience, rarely reported, and it is wrongly implied or asserted that everyone in the latter category is in the former. I suppose this could easily be detected by examining a poll's "internals" but these are either nonexistent--which suggests something about intentions of the poll's designers--or are not reported. (I do not recall ever having heard a disapproval number broken down in this way, but perhaps it is and I have missed it.)

To illustrate, consider these two interesting columns--Unpunished Failure & Regional Struggle--by Michael Ledeen, a strong supporter of the war in Iraq. If Ledeen were polled would his own internal "disapproval rating" of the administration have increased? Surely. Does this mean he has changed his mind about his previous support for the war? Hardly. Perhaps everyone reading this already views approval ratings in this way, but I think the informational distortion of disapproval numbers, both intentionally and unintentionally, is pretty widespread.

 
[Cori Dauber, 11/5/2003 07:25:14 AM]
Is There Room for Optimism? Read this and decide.

 
[Eugene Volokh, 11/5/2003 06:23:07 AM]
Parents' free speech and the best interests of the child: The Washington Times runs this story (thanks to Michael Williams for the pointer):

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. . . .

Mathew Staver, president of Liberty Counsel, a public-interest law firm based in Orlando, Fla. . . . [said] the order effectively prevents the mother from practicing her religion in her daughter's presence.

"The mother is a Christian, and that's a major part of her lifestyle," he said. "She would be prohibited from reading her daughter Romans 1 or anything in the Bible on sexual fidelity in marriage, going to Bible study, or listening to a sermon on marriage or fidelity." . . .

Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . .

Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said.

In his order, the judge said there was "a great deal of strife" between the two women. Dr. Clark had argued that Miss McLeod should not have joint custody because she was not interested in the adoption while it was taking place and that it was never their intention that she would act as a parent. . . .

The girl spent more than seven years as part of Miss McLeod's life, however, prompting Judge Coughlin to rule it would be in the best interest of the child for joint parenting to continue.

If his ruling stands, it could affect Christian parents across the nation, said Mr. Staver. "These things progressively build on one another, so we're trying to stop this before it goes any further."

     This is a troubling story, and it supports the arguments of some that the pursuit of gay rights is now sometimes suppressing the rights of others -- free speech rights, religious rights, associational rights, and so on. I like to think that it's possible to prevent oppression of homosexuals while at the same time preventing oppression of those who oppose homosexuality, but it's true that there's some oppression happening of the latter, just as in the past -- and in some measure in the present -- there's been tremendous oppression of the former.

     But the story is also, I think, a bit more complex. I haven't yet gotten a copy of the court order (I asked the library for it this morning) but I suspect that what's happening here is that the court is applying the best interests of the child standard. In child custody decisions, the official rule is generally that everything -- who gets custody, how much visitation rights there are, what are the conditions on custody and visitation -- is supposed to be decided according to the best interests of the child. But what if a court believes that it's against the best interests of the child for a parent to say certain things to the child? Or expose the child to a certain religion? And what if this belief on the judge's part is buttressed by the concern that certain statements might endanger the child's relationship to the other parent?

     If a judge honestly applies the best interests of the child standard, then the answer might well be that it's in the child's best interests for the parents' speech and religious practice around the child be restricted. Here's a thought experiment: Imagine that you were dying, and you were trying to decide whom to select as your child's custodian. Presumably your main concern would be the child's best interest. If you have two people from whom you can choose, wouldn't you consider what each person is likely to tell the child as part of your evaluation of who the best parent would be? And if you had the power to somehow order the custodian not to say certain things to the child as a condition of giving the person custody (assume your child is much in demand, so such a condition would stick), and if you found that the best prospective parent was generally very good except for some belief that you thought it would be really bad for the child to learn, wouldn't you consider using that power (unless you thought that such an order would be counterproductive in other ways)?

     Well, the best interests of the child standard more or less puts the judge in that same position. It's true that the judge in this case made a subjective decision about what's best for the child that others might not make. But that's the nature of the "best interests" standard.

     The key difference between my hypothetical and the normal judicial custody decision, of course, is that the judicial decision involves an agent of the state making a decision about someone else's child -- and I think it's a tremendously important difference. But what this means, I think, is that sometimes the parents' constitutional rights should prevent a judge from rendering a decision that he thinks is in the child's best interests. The judge might well have honestly made a decision that he thought was in the child's best interest. In fact, the decision may indeed have been in the child's best interest, since it might have prevented one parent from condemning the other as sinful to the child, something that may well be bad for the child (I stress the "may" because of course that too is quite a subjective decision). It's just that the "best interests" standard may well be inadequate here.

     Unfortunately, it's not particularly clear what the best alternative standard would be; one possibility might be that such speech-restrictive orders can't be issued unless there's some showing that the speech is psychologically harming the child, or seems highly likely to do so imminently. Some courts have used this standard in deciding whether to restrict a parent's religious teaching to a child in cases where the parents want to teach the child different religions: A parent is free to teach whatever religion he or she pleases while the child is with that parent, even if the religion is inconsistent with that taught by the other parent, so long as the inconsistency doesn't seem to be harming the child.

     Other courts, on the other hand, have theorized that it's generally not in the child's best interests to be taught two conflicting religions, and thus give the custodial parent (when there's only one) full control over the religious upbringing, and block the other parent from teaching contrary religious views. (Note that in this case, the judge seems to have given Clark the authority to oversee the child's religious upbringing, and imposed the "no anti-homosexuality teachings" condition as a compensating benefit to McLeod, who might have reasonably feared that Clark's religious teachings would interfere with the child's relationship with McLeod.) But even the "psychological harm" standard has flaws: even it can be extremely vague (what's "psychological harm"), and can thus be applied quite subjectively, and by definition it also does allow some damage to the child's best interests, which some people might think is too high a price to pay to protect the parents' free speech rights.

     And of course this issue doesn't just come up when anti-homosexual speech is involved. I've collected cases on this subject for over a decade; I've found cases where judges (1) make child custody decisions based on a parent's likely future speech, (2) order a parent not to say certain things to a child, or (3) order a parent to say certain things to a child -- which, I think, all implicate the First Amendment -- where the speech that was being disfavored was:

1. Pro-Nazi speech (in the 1940s).



2. Pro-Communist speech (in the 1950s).



3. Advocacy of atheism (from the English child custody case involving the poet Percy Bysshe Shelley in the early 1800s to just a few decades ago).



4. Advocacy of polygamism (from the 1950s to a decision just a year or so ago, in Pennsylvania of all places).



5. Advocacy of the propriety of homosexuality (in the 1970s).



6. Advocacy of racism, both black racism and white racism (from the 1970s to the present).



7. Teaching of religious beliefs that conflict with those of the other parent.



8. Condemnation of the other parent, either on personal grounds or religious grounds.



9. A mother's saying (accurately though likely maliciously) that the father wasn't really the child's biological parent.

     Again, in all these cases the judges probably sincerely -- and sometimes probably correctly -- thought that it would be in the child's best interest not to be taught or told certain things, or to be taught or told other things. The question is when the parent's free speech rights (and sometimes religious freedom rights) should prevail over the best interests of the child standard. So the Colorado order is the latest skirmish both in the battles over the rights of homosexuals and the rights of those who disapprove of homosexuality, and in the legal battles over the best interests of the child standard and parental rights more broadly.

     One final item: Throughout the post, I've talked about the two parents, but McLeod is neither the biological nor the adoptive parent. Perhaps that alone is reason to grant full custody to Clark, with no rights on McLeod's part; and if that's so, then the argument that it's harmful for the child to be taught antihomosexual views becomes weaker (though it doesn't vanish entirely). That's mostly a question of Colorado state child custody law, though there might also be a federal constitutional claim that Clark's parental rights prevent a state from giving similar rights to anyone but a biological or adoptive parent (see Troxel v. Granville). I don't know enough about that particular issue to opine on it; I felt comfortable providing the above analysis because I have followed closely the First Amendment issue where the parties are definitely legal parents, and because this question may well arise in any event in future cases, where the other homosexual partner had indeed adopted the child.

     But I should also say that I don't feel particularly bad for Clark (or for McLeod) on that parental rights score: She chose to raise the child for seven years with McLeod (just as McLeod chose to raise the child knowing she had no firmly established legal rights). I suspect that the child has at least something very close to a child-parent psychological relationship with McLeod, as well as her parent-child relationship with Clark.

     While I can't speak to what exactly Colorado law has to say about that (and while the federal constitutional parental rights rules here are very murky), I can certainly see why a judge -- if given discretion by state law -- might very reasonably conclude that it's in the child's best interest for the relationship with McLeod to continue. If Clark now has the legal or constitutional right to sever that relationship, that to me is a bug (at least in this instance), not a feature, because here I do think that the best interests of the child should make the difference. (Query whether that means the best interests of the child should also be completely dispositive as to the parents' speech rights -- I think the answer is probably no, but as you can tell I can't say I'm completely sure.)

 
[Cori Dauber, 11/5/2003 06:11:08 AM]
Untenable Rhetorical Situation: This president, I think, is in a rhetorical box that there may not be a way out of. This is the second time this week the Times has brought up the idea of the president attending military funerals. (Sunday, of course, Maureen Dowd was on him for not attending for any.) But he can't. For the president, he has to retain a relationship with the soldiers as Commander-in-Chief, where military losses are tragic tears in the national fabric. Funerals are places where soldiers shed their impersonal role as "soldier" are return to their individual role as "family member." The Commander-in-Chief can't personally participate in that.

Notice there are examples in this article of places where presidents participated in memorials, but they are all places where the country lost many people in a singular event; the Beirut bombing, the Cole attack, a plane crash. In those instances, like Oklahoma City or the Columbia shuttle disaster, the president has to participate in the memorial, because then, in his role as head-of-state, he becomes the Mourner-in-Chief, the symbolic embodiment and stand-in for the people.

But how can that happen when casualties are being taken on a regular basis during war time? Not only would that interfere with the Commander-in-Chief relationship with the troops, the whole situation is complicated by the nature of this war. This is what makes the situation rhetorically untenable. This is an enemy that has said repeatedly they expect to win because Lebanon and Somalia prove America won't take casualties. In effect, when we say we have determination, will, what the president really needs to persuade them of is that we are willing to accept American casualties.

The way to win the war and to stop the killing of Americans is to prove we are willing to accept the deaths of Americans. Hence lines like, "bring it on." But the president can never only communicate to the enemy. Whatever he says is also heard by a domestic audience, where saying it leaves him open to being portrayed as "insensitive" to the "pain" of American losses, callous, etc etc. Note I'm not saying that winning requires throwing away American lives; that's crazy. I'm talking about perception management. But creating that perception may require the construction of a message that is just untenable at home.

They are coding it, by talking about "determination" but what they are really saying is "killing soldiers ain't getting us out of here." Can that be done in a way that simultaneously manages the perceptions of the enemy and does not offend the American people (or leave the president open to a construction by poliitical opponents that is successful?)

 
[Cori Dauber, 11/5/2003 05:39:11 AM]
I'm Shocked, Just Shocked! A PBS-documentary with an agenda! Oh, say it ain't so! And it's too bad, too, because the coverage of the Iraq war in particular broke such new ground that we have barely begun to think through the implications the issues are so richly textured.

Consider just the question of whether the television images were "sanitized." Well, of course they were. But that wasn't because the networks were trying to somehow "pretty up" the war qua war, it's because the networks sanitize everything. Think about even local news, where "if it bleeds it leads." A grotesque car wreck will lead in any market in this country -- but the most you ever see is a body delicately draped under a blanket. If there was a child, you'll see a teddy bear, a tiny sneaker, but never, ever a body.

The standard images of plane crashes in this country are haz mat teams shown wading through pieces of twisted metal, but again -- no bodies. But given that, how do journalists manage to convey accurately what war is about without showing us the images? Much less how do they cover war live when they have to worry about what might happen on live TV?

Well, that's a far longer discussion then a blog can handle, but my point is this is endlessly fascinating and critically important stuff. so it's too bad PBS went and led with their chin.

 
[Tyler Cowen, 11/5/2003 05:38:57 AM]
A matter of taste? GeekPress, and Stone, call this link "Worst Album Covers Ever." I call it "Best Album Covers Ever," check it out. I also like the cover of The Notorious Byrd Brothers, a splendid album as well, the horse in the far right window was a stand-in for David Crosby, whom McGuinn had recently thrown out of the band.

 
[Cori Dauber, 11/5/2003 05:08:56 AM]
Inserting Some Reality Into the Debate Paul Bremer has been bashed for weeks for not heeding the wise council of the State Department and it's infinite prescience and therefore knowing he should have kept the Iraqi Army intact. Never mind that many of those articles have obviously been based on State Department sources. Now into the weighing into the debate comes Walter Slocombe, a pretty wise man himself, always worth listenting to, with a pretty good dose of reality for those who think we would be in far better shape today if we had just kept those 500,000 men in garrison. Well worth reading.

 
[Cori Dauber, 11/5/2003 04:57:38 AM]
This Looks Like a Stretch The Post is correct, certainly, that their poll registers that people are not buying the argument that Iraq is the "central front" in the War on Terror -- but they are still buying the argument that it is conceptually of a piece with the overall War on Terror (an argument, by the way, that far predates the start of the combat in March -- if you listened carefully, as far as the president was concerned this was always a "second front" for all intents and purposes). And the Post is also correct the White House would prefer they bought in for the whole rhetorical strategy. But as long as they still see the two as linked, it seems to me that the conceptual foundation (and rhetorical strategy) of this administration remains the one that people accept. (Although, as the Post points out, the trend is against it.) I'm just not sure the "central front" argument, while helpful, is necessary for them to win their arguments.

 
[Cori Dauber, 11/5/2003 04:48:14 AM]
Is Chief Wiggles Project Worth the Effort? Many of you have no doubt read on other sites about Chief Wiggles effort to bring toys to Iraq, and the way Newsweek discounted it. I have been remiss by not posting the effort on my own site, and I will fix that later today. If you have any doubts about whether the effort to send even small items might make a difference, read this article about what pencils mean in Iraq, and how hard it was -- and is -- to deliver them.

 
[Eugene Volokh, 11/5/2003 01:32:31 AM]
Outlawing the "uncouth": A Lexington, Kentucky city councilman is upset about a sign, and wants to see it outlawed:

At yesterday's inter-governmental committee meeting, Councilman David Stevens plunged into the discussion by projecting the image of Fanny's behind on the council chamber wall.

"I think gentlemen should never cuss in public. I think it's uncouth behavior and not desirable in a civilized society," Stevens said. "If the sign is not illegal, then is there anything we can do to make such signs -- lewd and other signs -- illegal?"

Here's the sign in question, from the article:



     Crude? Maybe, a little bit. But lewd? An ass's ass hardly seems to qualify. Surely city councilmen ought to have better (and more constitutionally permissible) things to do.

     Here, by the way, is the reaction of "Bill Buell, Big Ass Fan's 'marketing guy'":

Big Ass Fans got the idea for a new name straight from customers' mouths. Time after time, people who worked in plants and manufacturing stared up at the products and remarked on the size of the fans, which can reach 24 feet in diameter, Buell said. "A lot of customers would look at them and say, 'Those are big ass fans.'"

"It's very tasteful," said Buell, who noted that Fanny is a real donkey who was born, bred and photographed in Kentucky. "It's mentioned in the Bible: Mary rode into town on an ass. What we're showing there is literally a big ass. If people read something else into it, it's not our problem."

     I just wish more marketing guys were that direct. Thanks to Howard Bashman for the pointer.

Tuesday, November 04, 2003

 
[Eugene Volokh, 11/4/2003 06:30:53 PM]
Supreme Court asks for response in the secret habeas case: So reports the AP:

The Supreme Court on Tuesday asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11 attacks.

The administration has refused to release the names and other details of hundreds of foreigners rounded up after the attacks, arguing that a blanket secrecy policy is needed to protect national security.

One of those immigrants, known only as M.K.B., challenged his detention. But even that has been shrouded in secrecy.

His appeal has reached the Supreme Court, only there is little written evidence that his case exists. Lower courts sealed all the legal filings, as well as the records of how his case was handled. The proceedings were held in secret. . . .

The administration told justices last month that it did not plan to file a response to the appeal. In a brief notice released Tuesday, the court said it has told the administration to give its side anyway. . . .

     It takes just one Justice's vote to call for a response; and while the Court will always ask for a response before granting certiorari (i.e., agreeing to hear the case), I believe that most times that it calls for a response, it nonetheless ends up not granting (since it takes four votes, not just one, to grant). The odds are almost always against a grant of cert, even in a troubling case like this one. Still, I'm glad that someone out there is concerned about the case.

     Thanks to How Appealing for the pointer, and to Marty Lederman for passing it along.

 
[Eugene Volokh, 11/4/2003 01:48:12 PM]
Cat scratch fever: I'm extremely skeptical about the purported findings described in this story, but it seemed too amusing not to pass along:

A study has shown that domestic cats infected with a parasite called toxoplasma gondii can actually alter the personalities of their human owners, turning women into �sex kittens" and men into �alley cats.�

�We found they [the infected women] were more easygoing, more warm-hearted, had more friends and cared more about how they looked. However, they were also less trustworthy and had more relationships with men,� Dr. Jaroslav Flegr, who conducted the study at Charles University in Prague, told London�s Sunday Times newspaper.

Infected men, on the other hand, became more aggressive, less well-groomed, undesirable loners who were more likely to be suspicious and jealous.

�They tended to dislike following rules,� Flegr told the Times.

In the study, funded by the Stanley Research Medical Institute in Bethesda, Md., Flegr subjected more than 300 volunteers to personality profiling while testing them for toxoplasma, a parasite long known to be dangerous to unborn babies. . . .

For the record, neither my wife nor I own or have ever owned cats.

UPDATE: Larry Solum pointed me to this post written by someone who actually read the studies. If you're really interested in this as more than just an amusing news item, check the post out. General summary: The study seems competently done, though there's still reason for skepticism. And here's the last paragraph:

Still, the reaction-time study (especially if replicated longitudinally) indicates that Toxoplasmosis can have a greater effect than has thus been recognized. Shouldn't we question, as FuturePundit does, the wisdom of keeping domestic cats around? Would people buy a product that spreads a foreign substance into their brains with negative side effects just to get a good feeling? Oh, wait, yes they do. Does it matter that the foreign substance could be a mind-altering parasite? We'll see, but my guess is that cats will be around for a while.

 
[Eugene Volokh, 11/4/2003 12:24:48 PM]
Prosecution for Anti-American speech in New Zealand: According to what seems to be a serious New Zealand news outfit,

On Monday, [Bruce Hubbard, a] 38-year-old Auckland peace activist will appear in the North Shore District Court charged with misusing a telephone. The charge carries a penalty of up to three months' jail or a $2000 fine.

The police reaction to Hubbard's e-mail [to the United States embassy] has civil libertarians worried about free expression and the new Counter Terrorism Act, which they say could be used to curb peaceful protest. . . .

[P]olice say a woman at the embassy was offended by the e-mail . . . .

The full text of the e-mail read "to the USA, embassy" read: "Drop napalm on babies and kids in Afghanistan and Iraq and have invaded 72 other nations since to install US-backed military dictatorships to smash popular democratic freedom."

Attached was a quote from former South Africa President Nelson Mandela: "When injustice becomes law, resistance becomes duty." . . .

Police had received a complaint about the e-mail from a woman at the embassy three weeks ago.

     I sure hope, for the sake of democracy and freedom in New Zealand, that there's something to the story that I'm missing. Can you really go to jail in New Zealand for expressing your political views this way? (I know of no evidence, incidentally, that the U.S. government has tried to get the New Zealand government to prosecute Hubbard, and I certainly hope that there is no such evidence. While the First Amendment doesn't apply to actions with regard to foreigners in foreign countries, I think our government has no business trying to suppress free speech, even anti-American speech, in New Zealand, and I hope that it hasn't been trying to do this.)

     And, yes, of course Hubbard's speech is bunk, and offensive. In a democracy, this sort of offensive bunk needs to be tolerated.

 
[Jacob Levy, 11/4/2003 11:42:57 AM]
Constitutional commerce: The following-- a tangent from the fascinating ongoing Lochner discussions-- is part bleg, part provocation, part invitation.

Article 1 Section 8 of the Constitution authorizes Congress, among other things,
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

I would like to hear (bloggically or by e-mail-- but if you blog, please e-mail me the link) from people who endorse both of the following propositions.

1) The interstate commerce clause is a limited grant of power to Congress which only authorizes the regulation of activity that is really interstate and really commerce.
2) The Indian commerce clause vests a plenary power in Congress to govern Indian tribes absolutely.

(This is, by the way, the current state of constitutional law. Proposition (1) is confirmed by Lopez, though of course we might like to see a little more limitation from time to time. Congress delegates some "sovereignty" to tribal governments, but that is purely at its own discretion; there is no constitutional bar, under current interpretations, to abolishing reservations and returning to allotment or termination.)

No one seems to think that the power to regulate commerce with foreign nations vests a power in Congress to regulate the internal affairs of other nations. Textualists and originalists and libertarians insist that the power to regulate commerce "among the several states" does not amount to a power to regulate wholly noncommercial or wholly intrastate matters. But the power to regulate commerce with the Indian tribes is taken as constitutional grounding for Congress to regulate any and all matters concerning Indian Country, including matters wholly noncommercial and wholly intra-reservation.

I'm only secondarily interested in case citations; I know them. I know the history. What I want to know is whether any of the people who, today, endorse proposition (1) also endorse proposition (2) and, if so, what the interpretive theory is that justifies reading "commerce with the Indian tribes" as meaning something utterly unlike "commerce with foreign nations" or "commerce among the several states."

(NB: The implied contrast here is not with state regulation of Indian life, but rather with tribal self-government assertable against states and Congress both.)

UPDATE: For the dubious or the curious, some case citations:
While United States v. Kagama, 118 U.S. 375 (1886), which first asserted the plenary power, held that it derived from Congress' inherent obligations to Indians as dependent nations (a standard that, it seems to me, should have suggested fiduciary obligation rather than plenary power), Perrin v. U S, 232 U.S. 478 (1914) states that "The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a state, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,' and in part from the recognized relation of tribal Indians to the Federal government." [NB: Not from the not-yet-extant 21st Amendment.] The orthodox position remains that "The Federal Government's power over Indians is derived from Art. I, 8, cl. 3, of the United States Constitution, Perrin v. United States, 232 U.S. 478, and from the necessity of giving uniform protection to a dependent people. United States v. Kagama" Williams v Lee 358 U.S. 217 (1959), fn 4; see also McClanahan v. Arizona State Tax Commission 411 U.S. 164 (1973), fn 7.

 
[Cori Dauber, 11/4/2003 09:38:38 AM]
What Number is Less Than One? Bracket for a moment the shoot down this weekend of the Chinook helicopter, because I want to make a larger point. For some time we have been hearing, not only from critic's of the administration's policy but also in the straight press, the statement that almost one soldier a day has been killed in Iraq, and that this is evidence either of poor planning or that the policy is in deep difficulty. Given the caveats that every casualty is a tragic loss, what would be less than one loss a day? The return of the zero casualty policy of the Clinton years -- which I thought had been discredited both as something which distorted mission planning and which was ultimately unworkable in a war of wills with terrorists still thinking of Lebanon and Somalia as models for American behavior. So it is worth asking again -- did September 11th change our way of thinking about the risks we face and the way we will face them, or not? I do not mean that as a glib and facile question, but as the most important foreign policy debate we have to face in today's world.

 
[Juan Non-Volokh, 11/4/2003 07:49:07 AM]
Tripp's Privacy Act Settlement: Since so much of the blogosphere is outraged by the disclosure of confidential and personally damaging information by government officials in retaliation against political opponents, I assume those obsessed with the Plame affair will not let this story go unmentioned. There was an unquestioned violation of federal law here, leading to a substantial settlement, but the culprit was never identified, let alone punished.

UPDATE: I goofed when I said that "the culprit was never identified." To the contrary, as some readers pointed out, culprits were identified (see, e.g., here). I was correct in noting they were never punished, however. How often does such a mistake -- violating federal law and costing the Treasury over one-half-million dollars -- not even produce a reprimand? Brian Kelley has more here.

FURTHER UPDATE: Eric Alterman is outraged by the Tripp settlement. While he makes a reasonable case Tripp should have been prosecuted herself for lying on her clearance application, I don't believe the facts he lays out exonerate the individuals who released information from her personnel file.

 
[Tyler Cowen, 11/4/2003 06:47:31 AM]
More on Switzerland: A few days ago I praised the historical record of Swiss creativity, in the process indirectly defending Randy Barnett's belief in liberty (follow the links).

Reader Davis King now offers the following addendum:

"Your Swiss post is a fun one. The other biggies you're missing are Carl Gustav
Jung, Ferdinand de Saussure (structuralist linguist), and Louis Agassiz
(geologist, proposed idea of Ice Age)...

Since you're mentioning expats such as Einstein:
-- Herman Hesse spent most of his writing career there.
-- Edward Gibbon was educated there, and wrote 3 volumes of the Decline and
Fall near Lausanne.
-- Jorge Luis Borges was educated in Geneva, and later returned to die
and be buried there.
-- Byron and Voltaire also lived in Switzerland for portions of their careers,
each of them attracting a circle of other prominent literati. Mary Shelley
came up with the idea for Frankenstein while staying in Byron's home in Geneva
-- James Joyce, Thomas Mann, and Vladimir Nabokov all died in Switzerland."

Many of you wrote to tell me that the Swiss invented velcro. And oh, by the way, the World Wide Web received conceptual underpinnings from work done in Switzerland.

 
[Eugene Volokh, 11/4/2003 05:26:28 AM]
Latest "hostile learning environment" allegations: From the Arizona Republic:

Two Hispanic legislators on Thursday denounced a Glendale Community College math professor who circulated e-mail messages criticizing "diversity double-talk" and celebrating "the superiority of Western civilization."

The professor, Walter Kehowski, said he sent the messages in the community college system because he was upset at a recent Dia de la Raza celebration at which he felt students expressed racist attitudes toward non-Hispanics by praising separatism.

Without naming Kehowski, Dr. Rufus Glasper, chancellor of the Maricopa Community Colleges, issued a statement referring to a GCC faculty member whose correspondence he found "insensitive."

Glasper said academic freedom is important and the law restricts what administrators can do regarding faculty members' speech outside the classroom. But he called the messages "abrasive and divisive." . . .

Rep. Steve Gallardo, D-Phoenix, said Kehowski has created a hostile learning environment and used school resources "to promote his prejudice."

Kehowski said ethnic groups should be assimilated into society but some activists use ethnic pride as an excuse for separatism. He said that's what he was trying to convey in his e-mail messages, adding, "I don't call them insensitive. I'd call them controversial."

     I'm glad that the college seems to acknowledge its obligation to protect faculty members' academic freedom; but I'm troubled by the "hostile learning environment" rhetoric, which is classically an argument for legal censorship -- since a "hostile learning environment," the theory goes, constitutes "harassment," and thus violates antidiscrimination laws, see, e.g., here.

     Unfortunately, I couldn't find the text of the e-mail, but the professor's site, which the e-mail apparently linked to (see this opinion piece), is here.

 
[Sasha Volokh, 11/4/2003 05:14:50 AM]
The Marathon: Garrett Moritz reposts an old favorite, debunking the Great Marathon Myth, to coincide with the New York Marathon. Speaking of Marathon myths, I always refer to The Persian Version by Robert Graves.

 
[Eugene Volokh, 11/4/2003 05:02:49 AM]
The Palestinian Authority is really, really trying to help catch the people who murdered three Americans. From Reuters:

Palestinians Monday criticized as arrogant and insulting a U.S. offer of up to $5 million for information on those who carried out a bombing that killed three American security men in the Gaza Strip last month.

The security guards were traveling in a diplomatic convoy when a roadside bomb blew up their armor-plated vehicle in the first deadly attack on an American target in three years of Israeli-Palestinian violence.

"This is a very underhand act," Colonel Rashid Abu Shbak, Palestinian internal security chief, told Reuters in response to the reward offered Friday.

"Palestinian people, Palestinian security services and Palestinian factions do not work as mercenaries for anybody."

Shortly after the Oct. 15 bombing, a senior American official suggested some Palestinian security services were dragging their feet in cooperating with U.S. investigators probing the attack. . . .

No, really? You don't say.

 
[Eugene Volokh, 11/4/2003 04:42:38 AM]
Radio being jammed down people's throats: More apropos this post, from reader Aaron Gunn:

I just wanted to write and tell you how much I enjoy coming to your website every day and having your content jammed down my throat. I usually visit while breakfast is being jammed down my throat. Needless to say, my throat is very sore, since apparently any voluntary activity I participate in involves something being jammed down it. . . .

 
[Cori Dauber, 11/4/2003 04:30:43 AM]
The Today Show Death Watch This morning the Today Show returns to a ritual it employed all too often during the combat phase, but had abandoned while combat casualties came in a slow trickle. No sooner than next-of-kin notification had been completed than it was a sure bet that a bereaved family would appear on Today to be interviewed, and during the combat phase there were enough of these interviews that it quickly became apparent that the questions were utterly ritualized. "Tell us about your son." "What was it like when you learned he would be going to Iraq; you must have been worried." "We know he attended (insert name of high school or university here) and that's really where he first began to be a leader; tell us about that." "We know he first began to show interest in a military career (as a boy, if military family, he surprised you with it, if not) tell us about that." "What is it you would like the country to remember about your son." I find these interviews utterly appalling. I think these families should be allowed to grieve in peace, not trotted out for the public view, and the only positive thing about their return to the ritual today is that they've figured out they need to have the far more patient and gracious Matt Lauer do them -- Katie Couric was literally becoming so bored with the routinized nature of this pattern she was running over families answers to one question by beginning the next. Perhaps others disagree, and find them moving or compelling, but I at least wanted to point out the ritual nature of the interviews.

 
[Cori Dauber, 11/4/2003 04:22:07 AM]
Why Aren't We Hearing More About This? The Times is quite right to point out that the pain that Iraq went through for thirty years poses daunting problems -- emotional, legal, and, yes, more security problems as some seek vengence on their own. But it is also important to keep reminding ourselves that for many Iraqis the pain of the old regime is still front and center, which puts comparisons between the situation before and after the war in a slightly different light. How is the situation in Iraq today? Too often when that question is asked we forget to begin the answer with, "well, the torture chambers are closed and there are no new mass graves." That is not a small thing, it may be the main thing. And as David Brooks points out it also has real implications for what our responsibilties are.

 
[Eugene Volokh, 11/4/2003 04:11:47 AM]
Not quite Burma Shave:

On Interstate 80, about a mile west of the LaGrange Road exit in Orland Park, are a series of . . . signs. . . . [W]hat motorists see is:

"Dialed 911,

"And I'm on hold,

"Sure wish I had,

"That gun I sold."

The final sign advertises the Champaign County Rifle Association's Web site, www.gunssavelife.com. . . .

The association has 34 sets of such signs, 33 in Illinois and one in Iowa. . . .

Cute idea. (Thanks to reader James Foster for the pointer.)

 
[Cori Dauber, 11/4/2003 03:53:55 AM]
What's the Bottom Line Here? Is it that the New York Times in general and David Sanger in particular will never be critical of the White House in general or the NSC in particular? Don't be silly. But the word is if there is a Times article about administration policy, especially White House policy, most especially NSC involvement, and it's by David Sanger, now you have some insight into how that article was placed and shaped.

 
[Eugene Volokh, 11/4/2003 03:06:53 AM]
Another excellent Jonathan Rauch piece, this one on Bush and unilateralism. Here's an excerpt, though read the whole thing:

The only way to placate today's angry Europeans is to change the ends, not just the means, of U.S. foreign policy. And the only way to have avoided the trans-Atlantic falling-out over Iraq would have been for Bush to condition America's use of force upon the approval of the Security Council (read: France). No responsible American president, of either party, would have done that.

Exhibit A: In September of 2002, Al Gore, then still a possible Democratic presidential contender, warned of the perils of acting unilaterally against Iraq. He urged Bush to take his case to the Security Council and ask for a resolution demanding "prompt, unconditional compliance by Iraq within a definite period of time." And if the Security Council failed? "Other choices"�Gore meant force�"remain open." After all, "Iraq's search for weapons of mass destruction has proven impossible to completely deter, and we should assume that it will continue for as long as Saddam is in power."

Bush, of course, followed Gore's advice. If that was unilateralism, then few are the presidents who would forswear it.

September 11 brought horrible clarity to the fact that America needs desperately to keep the world's most dangerous weapons away from the world's most dangerous people. Most other countries, being less of a target, care much less (Israel possibly excepted). They worry more about unconstrained U.S. power. This divergence of interests is manageable, but it is also fundamental. A Democratic president might change the tone, which might make some difference on the margins; but the choices would mostly be just as tough, and the stresses just as painful.

Bush is not a unilateralist, but even if he were, multilateralism is no free lunch. What critics of American unilateralism are really unhappy with is not Donald Rumsfeld's big mouth or Dick Cheney's big stick. Their complaint is with the hard geopolitical facts of life in a new and uneasy time. It's the world, stupid.

Monday, November 03, 2003

 
[David Bernstein, 11/3/2003 03:35:08 PM]
The Lochner Debate: Debate is still raging in the Blogosphere over my posts on Lochner and Justice Brown. I'd love to participate further, but I'm traveling for the next few days and won't be able to. But historian David Beito over at the "Liberty and Power" blog promises to talk more about Lochner and race tomorrow. Sorry I can't link, but I'm borrowing a computer that only has Netscape, which isn't working right with the Blogger software.

 
[Cori Dauber, 11/3/2003 03:07:38 PM]
The Somalia Strategy: Andrew Sullivan writes today about the Somalia Strategy, the idea that there are those in Iraq intent on killing as many Americans as possible in order to erode American will. I think this is an incredibly useful way of thinking about what's happening, in no small part because there also has to be a way to distinguish between activity that may be terroristic but that is not terrorism. As awful, as maddening, as rage inspiring as it may be when people target American troops in this way, I still believe there is critical value in keeping a bright line around the concept of terrorism -- it is the intentional targeting of non-combatants, it is the killing of the UN's deminers, the Red Cross's water treatment specialists, hotel guests, September 11th. Politically inspired violence, it seems to me, is at play in the targeting of American troops, and there is value in asking what the motivations behind the violence are, but the killing of combatants is not terrorism per se, and it is just worth reminding ourselves of that when there are multiple kinds of violent activities taking place simultaneously. Some of what is happening is terrorism, and some of what is happening borrows from the terrorist play-book but is a bit different, and "Somalia strategy" seems a good way to begin thinking that kind of violence through.

 
[Eugene Volokh, 11/3/2003 03:02:46 PM]
Bainbridge vs. Froomkin on Justice Janice Rogers Brown: Michael Froomkin here, against Brown; Stephen Bainbridge here.

 
[Eugene Volokh, 11/3/2003 01:14:26 PM]
More on the secret habeas corpus petition: I've just read the certiorari petition in this case, which my friend and fellow law professor Michael Froomkin alerted me to. I'm still not positive what the right result is here, in part precisely because so few of the facts are available; but I do indeed think this is troubling.

     The petitioner in this case is apparently not a very dangerous character, because he's been released on a $10,000 immigration bond pending the resolution of his immigration case. According to the petition, the court issued no sealing order backed by clear factual findings explaining why the presumption of public access to court records doesn't apply here. I can see why the government might have to keep some matters confidential, even if they involve judicial hearings, and there's some provision for that in our legal system -- but generally the secrecy has to be as narrowly focused as possible, and limited to material that courts find genuinely has to be kept secret. So whenever an entire case is kept secret, from the filing of the original habeas petition to the appeal, that's reason to worry, and to ask the government (both the executive and the judiciary) to explain itself. One of the key protections against government abuse is public scrutiny of the judicial process; and while sometimes that scrutiny may have to be restricted, such restrictions are dangerous, and should themselves be scrutinized to the extent possible.

     But here's the most puzzling question here: Why has this case gotten so little media attention? I've done several LEXIS and google searches, and found one Christian Science Monitor article (which also ran in the Seattle Times), one St. Louis Dispatch article, plus some articles in South Florida business papers, and this law.com piece written by Dan Christensen of the Miami Daily Business Review, who I think broke the story several months ago. Where are the New York Times, Washington Post, and so on? Not only is this an important legal question that involves procedures that are at least prone to government abuse (whether any abuse actually occurred here or not) -- it's something that should touch on the news media's self-interest. But I've found no real coverage.

     Here's an excerpt from the law.com piece:

A South Florida waiter who was detained in the aftermath of the Sept. 11 terrorist attacks has asked the U.S. Supreme Court to decide whether U.S. District Judge Paul C. Huck in Miami and the 11th U.S. Circuit Court of Appeals abused their discretion by sealing his case without explanation.

But in an unusual move, the public copy of Mohamed Kamel Bellahouel's petition to the Supreme Court for a writ of certiorari is heavily censored, with entire pages blanked out. A complete copy, plus attachments, was filed under seal for the justices' eyes alone. Still, the filing by the federal public defender's office in Miami is the first public acknowledgement by any federal court of Bellahouel's habeas corpus case. . . .

The lower courts, the petition said, have gone to great lengths to hide the "essential fact" that Bellahouel's case even exists -- including keeping the existence of the case off the public court dockets. But, it said, "the facts of the petitioner's case would make a significant contribution to the national debate about the detention and treatment of Middle Eastern persons. There is no legitimate government interest [in] permitting court-suppression of his ordeal."

Even at the Supreme Court, however, the public file for Case No. 03M1 does not include the petitioner's name or the names of the lower courts that kept the case secret. The style lists Bellahouel's initials -- M.K.B. v. Warden et al. The case is identifiable to knowledgeable outsiders only because the petition includes a reference to a March 12 Daily Business Review article about Bellahouel's case.

That article reported how the case only came to light due to the inadvertent disclosure by the 11th Circuit's court clerk's office in Atlanta of Bellahouel's appeal of Judge Huck's decision to seal the case. That disclosure led to the alteration of published federal court calendars and computer records to hide the case again.

The article also reported how the three judges on the 11th Circuit panel -- Stanley F. Birch Jr., Ed Carnes and Procter Hug Jr., from Reno, Nev. -- closed their courtroom to the public and the news media on March 5 to hear arguments in the case.

The federal government has not accused Bellahouel, 34, of involvement in terrorism. After holding him in custody for five months, the U.S. Department of Justice apparently concluded he was not a danger and authorized his release in March 2002 from Krome Detention Center in southern Miami-Dade County on a $10,000 immigration bond. Bellahouel now is seeking to adjust his legal status and block the government's effort to deport him for overstaying his student visa. . . .

(Note a small error in the piece: It says that "Before the Supreme Court can consider Bellahouel's arguments, a majority of the justices must vote to accept his petition, which was filed July 10," but actually it only takes four Justices' votes to get the Court to hear a case, with only a rare exception that's not relevant here. The law.com account also says "A decision could come as early as Monday, when the justices are scheduled to hold a conference to consider whether to hear cases filed during the summer recess," but in practice the Court will almost never agree to hear a case unless it has first gotten a response from the other side; here, the government hasn't filed a response, so the Court won't agree to hear the case until it first asks the government for a response.)

 
[Eugene Volokh, 11/3/2003 08:36:45 AM]
Eric Muller on Lochner, Justice Brown, and David Bernstein: A very good post; here's an excerpt:

Before you get apoplectic about how outrageous it is to suggest that Lochner had even a wisp of validity to it, just do this little experiment. Here are the rules: You are given a copy of the Constitution. You are instructed that the Constitution protects one fundamental freedom that is not specifically mentioned. Only one. And you're told that it is either (a) the right of a person to grow a vegetable on his farm and sell it to his neighbor, or (b) the right of a terminally ill person to receive pain medication in an amount that, while necessary to manage the pain, will also kill her. Remember, the only hints you've got on the question are hints you can find in the Constitution itself. Which would you choose?

Admit it: you'd choose (a). And that's because the people who drafted the Constitution made no secret of their desire to protect their property rights; they studded the document with references to those rights. The textual hints that lead to choice (b)--to the extent that they're there in the text at all--are certainly more remote. . . .

Read the whole thing -- very well put. (And, yes, I am indeed blogging little today and for the next few days; I just had a brief block of time to put up a few things.)

 
[Eugene Volokh, 11/3/2003 08:15:04 AM]
Secret habeas corpus petition: Michael Froomkin has the details; the (heavily redacted) certiorari petition is here. I share Michael's misgivings, though I'm not completely positive what the right answer should be. My very tentative sense is that (1) defendants in criminal trials have, under the Public Trial Clause, an absolute right to be tried in public (though some portions of trials may be closed under certain circumstances for certain kinds of testimony), but (2) I'm not sure whether this extends (or to what extend it should extend) to habeas corpus proceedings. Hope to post more as I learn more, and if I have time to do so.

 
[Eugene Volokh, 11/3/2003 08:07:47 AM]
Pardon my absence: I've been involved in a small but very important project. Hope to be back soon. E-mail response, I'm sorry to say, will be slow to nonexistent on my part.

 
[Tyler Cowen, 11/3/2003 07:32:48 AM]
In Defense of Switzerland and Swiss creativity: Over the weekend Randy Barnett tells us that several readers wrote him about Orson Welles's famous line that the Swiss, with their five hundred years of democracy and peace, invented nothing more than the cuckoo clock.

I beg to differ:

Euler, arguably the greatest mathematician ever, was Swiss.
Rousseau, one of the most important political philosophers, a theorist of education, a brilliant autobiographer, and a best-selling novelist, came from Geneva.
In the arts the Swiss have given us Giacometti, Klee, Hodler, and Bocklin, the latter two still underrated in the United States. Or how about Le Corbusier?
Paul Hindemith, one of the most important twentieth century composers, was of Swiss-German background, though born in Germany.
The city of Basel attracted Burckhardt, Nietzsche, and other luminaries; Einstein worked in Bern.

In the sciences, the Swiss are number one for Nobel Prizes per capita.

OK, maybe the Swiss do not have the record of the Italians, Welles's point of comparison. But peace and prosperity are unlikely to be the culprits. Switzerland has been wealthy only recently, and for most of its history it has not been very urbanized. In the nineteenth century it was one of the poorest parts of Europe. These features made it harder for Swiss creativity to get off the ground.

And by the way, if you hadn't already guessed, the Swiss did not invent the cuckoo clock.

Addendum: Jonathan Burdick notes that I left out the Bernoullis, key figures in math and statistics and probability. Also there is Karl Barth, a leading theologian.

 
[Cori Dauber, 11/3/2003 06:48:06 AM]
I'm Just Sayin' Romanesko is the place to go for what matters in media affairs. Take a quick peek at what makes it into his tease for the Chronicle piece on Fisk.

 
[Eugene Volokh, 11/3/2003 06:25:47 AM]
Headline vs. Story: Today's Christian Science Monitor has the following story, under the headline "Drugs in the car, and no one owns up. Is everyone liable?" (thanks to How Appealing for the pointer):

When the US Supreme Court announces its decision in a case called Maryland v. Pringle sometime next year, it may become required reading for every American parent with a teenage child.

That's because the court will decide whether police may arrest all passengers riding in a car in which hidden contraband is discovered. . . .

Only in the 19th paragraph do we see something that makes (fairly) clear that this isn't about who's liable for drug possession, but only who can be arrested for it:

[Maryland's solicitor general] says the Maryland court [which held the arrests unconstitutional] applied too high a standard of evidence to justify an arrest: "This is only probable cause to arrest. This is not proof beyond a reasonable doubt at a trial."

That's right -- the state is not arguing that someone can be convicted (held "liable") simply because he's in the car where contraband is found, with no evidence that he even knew the contraband is there. Surely being merely a passenger doesn't show beyond a reasonable doubt that you were part of a drug conspiracy. The state is arguing only that being a passenger is "probable cause" to believe that you're involved in a conspiracy, the much lower standard -- even lower than the 51% "preponderance of the evidence" standard -- required for an arrest.

     Now being arrested is a big deal, which is why the Fourth Amendment has been interpreted to require that the police have probable cause to arrest you. It may well be that the state's position is wrong, and merely being a passenger in a car where drugs are found should not suffice to show probable cause.

     But the state's position isn't the same as holding people "liable" -- convicting them -- and it's too bad that the headline suggests this. (And even if it's justifiable for headlines to somewhat overstate the matter to be provocative, at least the first paragraph or two should explicitly dispel any possible confusion, which these paragraphs do not, at least to readers who aren't clearly aware of the distinction between standards for arrest and standards for conviction.)

 
[Cori Dauber, 11/3/2003 06:17:18 AM]
Here We Go The helicopter attack is symbolically critical, not militarily critical, but in a war of wills it is this kind of hit that will matter. However, what's missing from this piece, written by one, if not the, best Pentagon beat correspondents on the print side, (and, I might add, quoting my two colleagues, Dick Kohn and Peter Feaver, the best of the best) is any consideration of the press' role. In a war of wills, it isn't just capability, obviously, but perception. How else are our perceptions created but in the way we hear about these matters, the way they are framed, the way they are talked about? Does talking about them at all make a difference? Or does making the issue explicit in a sense "innoculate" us against any possible effect?
Update: I can't get this link to work, and I'm not sure why. Go to the Washington Post home page, and look for what is currently the lead article, "Attacks Intensify Pressure on Bush," by Thomas Ricks.

 
[Cori Dauber, 11/3/2003 05:58:42 AM]
Not Seeing the Big Picture This article is typical of a larger problem in the press coverage of Iraq I've seen lately. It's not that there is anything wrong with the balance here. But the reporter needs to take a big step back, and ask the question I keep prompting people to think about -- what do terrorists want? So, the reporter says, there are significant positives on the ground, even positive political developments, but the increasing intensity of attacks creates an environment that leaves people so uncertain about the situation that all of that is put into doubt. Right. What the reporter doesn't seem to get, or at least isn't willing to write into the article explicitly, is that that uncertainty, which in turn puts every positive development into doubt, is precisely the point of the violence. Part of what defines terrorism is that it is not random acts of violence, but violence with an explicitly political aim. It sends a message, it is communicative, and it seeks to impact the situation on the ground in a way which leverages a weak tactical situation. The terrorists can't defeat us militarily, can't stop us from building a better Iraq -- but they can strike random targets, putting doubts into peoples minds, so that no one knows where or when the next attack will come, which in turn sends the message that the next attack can therefore come -- anywhere. Reporters are presenting two disconnected pieces here -- there is good news, and there is violence -- and concluding that the violence is threatening the good news, but not explicitly drawing the conclusion that that is precisely what motivates the violence.

If they would do so, they would understand that the violence is terroristic, and needs to be understood within that context. Maybe there are forces trying to conduct a guerilla war at the same time as terrorists are operating, but they are evaluating all the activity from within the same lens, and that is leading them to miss an important part of the story. This may be another side effect of the "Vietnam" narrative: Vietnam was a guerilla war, so they read this as guerilla violence. Not every violent attack is the same and not every attack has the same set of purposes and structure. Without that added level of nuance, the press, it seems to me, is missing an important aspect of what is happening on the ground.

 
[Cori Dauber, 11/3/2003 05:12:50 AM]
Beware Cherrypicking One of the most important things to understand about the media's presentation about poll results is this -- polls are very long, and broadcast stories are very short. Over at Rantingprofs I blogged at some length about problems with ABC's presentation of the latest Washington Post/ABC poll, and this morning the poll is showing up in those top-of-the-hour headline segments on cable outlets with even less detail. This, it strikes me, is just another way to make it appear that crashing support for Iraq may be inevitable when in fact that is far from the truth since the same poll shows that when asked if they would support continuing the mission in Iraq to the end -- even if it means continued military casualties -- they say yes by about twenty points.

Sunday, November 02, 2003

 
[Cori Dauber, 11/2/2003 05:53:36 PM]
Fisking Fisk -- and the San Fransisco Chronicle A reader emails in an article from the San Fransisco Chronicle that, as he suggests, is begging for a fisking, for though it is presented as a straight news feature about Fisk himself, nowhere is it mentioned that among his accomplishments is the rare feat of seeing his own name turned into a verb. So clearly taken with Fisk and all his works is this reporter, probably because, judging from the tone of the piece, Fisk has thrown off the shakles of objectivity, that the piece fairly glows with admiration. As a result, there are just a few odds and ends missing. I think it may be more useful to discuss those than to "fisk" in the classic sense. If objectivity implies balance, presenting an overall perspective, then Mr. Curiel has apparently taken the first steps in following his heroes footsteps. What is a reader of the Chronicle is not familiar with Fisk and all this works?

The biggest clue comes in that spectacular line that Fisk is what would happen if someone cloned a combination of Michael Moore and Noam Chomsky. Frankly, that isn't a line that needs any "fisking" -- if you consider the constant debunking Moore has undergone, and the uncontrolled rage towards America that pervades Chomky's work, that's just about right.

But the note that he was "villified" by the Wall Street Journal after being beaten in Afghanistan is little more than a cheap shot when it lies there without any explanation. Indeed, without further explanation of the incident it is disingenuous at best. He was not villified but mocked for having been beaten travelling to Afghanistan and then writing, as many will remember, "I would have done just the same to Robert Fisk. Or any other Westerner I could find."

But of course, surely all the disparagement must be because he supports Palestinians. What a simple, easy, all purpose excuse. It isn't because he distorts, twists, manipulates, to present the United States in the worst possible light, or works to find ways to explain away and legitimate people and movements who should be the worst enemies of the progressive left. It all boils down to supporting Palestinians -- although what that support actually translates to is neatly left unexplained. It becomes particularly easy and neat as a way to explain away the dislike for Fisk as personal and political -- people don't like a given position of his -- rather than centered on the quality of his work when none of the people who do dislike his work ever actually appear in this piece, except as those who would "villify" a man who has just been severely beaten in dogged pursuit of the story.

I am particularly displeased to see repeated Fisk's accounting of the number of civilian casualties in Iraq. 10,000 civilians dead in Iraq over the course of the occupation? And this slaughter of the innocents was just missed by every other reporter (or are they all so enamored of the American and British administrations that they would not, even as they begin to report these stories more and more, even suggesting civilian casualties as a cause for the attacks on American troops, bother to dig out what would have to be obvious to anyone there if it was happening at that magnitude?) This effort to count civilian casualties, and to report the numbers at levels as high as possible, took place in Afghanistan, took place during the combat phase, and apparently continues apace -- and the mainstream media helps no one by repeating these numbers without question or comment.

This article is worrisome for more than one reason. Perhaps more important than its presentation of Fisk as intrepid, journalistic hero, going where other reporters dare not, doing and saying what they refuse to -- Fisk as truth-teller -- is what it reveals about the reporter's, and, one must assume, the editor's, assumptions. The attacks on Fisk's politics are mentioned, but more as a way to dismiss his critics. Attacks on the quality of his work are just ignored. What other conclusion can we reach but that, at least to the good people at the San Fransisco Chronicle, Robert Fisk must be as he is made to appear in this article -- one brave man speaking truth to power.

And what does that say about them?

 
[Randy Barnett, 11/2/2003 01:16:54 PM]
More on War and Technological Development: On his blog, boyrobot's blog 'n' blather, Jonathan Burdick responds to my earlier blog on War and Technological Development.

 
[David Bernstein, 11/2/2003 11:26:10 AM]
I am getting quite a bit of flack in the Blogosphere for my post last week pointing out, in the context of the controversy over the Janice Brown nomination to the D.C. Circuit, that it's not at all clear why the Lochner decision and its progenywere so terrible that saying some nice things about these decisions should disqualify Justice Brown, or anyone else, from a seat on the DC Circuit. What all of the criticism that has come my way has in common is (1) that the authors don't really know anything about Lochner (which at least Atrios admits), in particular claiming that Lochner prohibited regulation of child labor, which is simply not true. The Lochner era Court unanimously upheld state regulation (prohibition) of child labor (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913), as did lower courts at the time (Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)). In fact, as discussed here, the Lochner era Court generally upheld all sorts of redistributive regulations meant to help workers, so long as they benefited workers as such, and didn't, for example, simply provide monopoly power to labor unions (an exception: the Court was hostile to direct regulation of wages, which was seen as giving the government the power to dictate both minimum and maximum wages). The only controversy regarding child labor was whether the federal government had the power under the Commerce Clause to regulate child labor, which the Court answered negatively, perfectly consistent with both the text of the Commerce Clause and the state of Commerce Clause jurisprudence at the time. The Court's critics basically wanted the Court to ignore the Constitution and precedent and uphold federal child labor laws because such laws were good social policy. That is not the Court's job, and in any event, it has nothing to do with the Lochner line of cases, which were due process, not Commerce Clause, cases; and (2) the critics never address the fact that the Lochner line of cases, which includes (arguably) the Peonage cases (invalidating southern laws that in effect created involuntary servitude), and (definitely) Buchanan v. Warley (invalidating residential segregation), Meyer v. Nebraska (invalidating a law banning the teaching of German), Pierce v. Society of Sisters (invalidating a law banning private schools), Gitlow v. Connecticut (recognizing for the first time that freedom of expression is protected by the Fourteenth Amendment against the states), Stromberg v. California (invalidating a law banning display of the Communist flag), the Scottsborough Boys cases (recognizing a due process right to a government-provided attorney in capital cases), and more, are the foundation of modern civil liberties, and, to a lesser extent, civil rights jurisprudence, as explained here. As Justice Brown has suggested, exactly why the Court should engage in stringent review regarding civil liberties, but almost no review at all of economic liberties cases, is never adequately explained. And why should Meyer and Pierce still be good law, but not any of the more economically oriented Lochner cases (even if you think Lochner itself was incorrectly decided)?
For that matter, are any of the critics aware of how Lochner and its progeny indirectly protected African Americans from hostile legislation? And that the leading opponents of the Court's decision invalidating residential segregation laws were also strong opponents of Lochner?

 
[Cori Dauber, 11/2/2003 08:03:06 AM]
Proving the Case Why not accept former officers from the Ba'athist Army? They're ready to go, they're trained, they're willing, they may never have been in the party and they only want to serve and to feed their families. Well, maybe on reason is that even this poster-child for who willing these people are to cooperate with the Americans can't understand why along with the Iraqi Army we disbanded the security and intelligence services. After all, they'd do a fine job of restoring security. I bet they would. And with those services back on the streets "enforcing" security there would hardly be a need for an insurgency -- the people running it would have their power back. And what would their, I'm sure effective, enforcement means do to the hopes for Iraqi democracy?

 
[Cori Dauber, 11/2/2003 07:39:02 AM]
Is Iraq a Mess? That's certainly the presumption behind this long cover story in today's New York Times Magazine, although most of the article deals with pre-war planning and, frankly, seems to me to break little if any new ground. Meanwhile, stuffed inside the paper is this article, which admits all the problems, asks again whether tactics used against the insurgency aren't creating enemies on the ground, but still manages to focus on the mission that so many soldiers who email, and blog, and write letters to the editor, have all wanted attention focused on. Is democracy possible in Iraq? Will this war accomplish anything? It is, and it already has. Isn't that genuine news deserving of at least as much attention as repeating all the same charges about how the planning effort went awry?

 
[Cori Dauber, 11/2/2003 07:23:53 AM]
The Echo Chamber in Play Why is there growing unease and worry about American combat casualties? Study and after study has shown that Americans accept casualties if they believe they were in support of a necessary mission. The idea, promulgated again here, that public opinion is linked causally to the number of casualties and falls in predictable algorhythms based on casualties taken is a canard, based on interpretations of the data from Vietnam detached from all context. Why did casualties crash support in Vietnam when that didn't happen in World War II? Because it is not purely a numbers question. It was the perception in Vietnam that the casualties kept coming, but nothing was being accomplished -- it seemed both endless and meaningless.

Now, it is no surprise that public support is softening (even as majorities continue to believe the mission in Iraq must be finished) or that polls indicate less willingness to accept casualties. This was utterly predictable given the way the war has been covered. As always in the echo chamber, the press help produce a result, poll the result, then report the polling data as independent verification of an empirical reality, as if they have no role or function to play in the creation of the attitudes they poll.

But to take it a step further and begin to report that casualties will inevitably erode support risks the possibility of a self-fulfilling prophecy. I still believe this is in part what happened after the deaths in Mogadishu. Most people did not believe immediately after seeing those images that America had to pull out of Somalia. But after several news cycles of hearing the press repeat over and over that "the American people will not stand for this" and also being told "if support erodes the mission will fail" attitudes began to change.

If it is reported that public support is necessary to win the war in Iraq, and that support will inevitably erode as casualties mount, what conclusion are people supposed to draw from that? But people are more than an amalgamation of polling data, and context does matter and just because people turned against the war in Vietnam does not mean they will turn against the war in Iraq no matter how hard the press tries to cast the two wars as identical.

Why ask this question, why look for similarities between the Vietnam War dead and not the Desert Storm dead -- or the World War II dead? The idea that it makes sense to even begin to compare the data is just presumed as self-evident, it is never justified or defended here. The research itself reveals an assumption at play -- it makes sense to think to compare data from these two wars, and not any other conflicts because this is the comparison that matters.

 
[Cori Dauber, 11/2/2003 06:26:59 AM]
Another Mogadishu Image The first piece of footage I saw this morning includes one split second view, in the midst of a crowd of Iraqis cheering an attack on US troops, of one of them putting US military head gear on. (It did not look to me like a helmet, but it is cleary US military issue.) It is difficult to see if this crowd is cheering an attack on a convoy or the downed helicopter. In the end it doesn't matter. Because the first thing I thought when I saw that image was, "Mogadishu."

Visual images can be metaphors, can harken back to other iconic visual reference points for people, the same way metaphors work in langauge. And as soon as I saw that image I just knew the media would be pulling that one out, and playing it over and over, and asking, one way or the other, if this proves we are indeed now in a guerrilla war. And the fact that there is no body in the shot makes that even easier -- the media was uneasy with the images of dead American soldiers being dragged through the streets of Mogadishu. They used them because they thought they were newsworthy and the body was both the story and the image, but, for example, almost every paper ran them inside, the newsweeklies did not put them on the cover. This image manages to reference those photos without any of the aspects that made the media uncomfortable with using them.

And, indeed, Tony Snow just asked Sec. Rumsfeld specifically about the image on Fox News Sunday. His answer was that it's one kid in a photo, when we know that millions of other Iraqis are glad we are there and mostly afraid we will leave too early. That answer may be true, but it will not be sufficient to respond to the power of the imagery here.

 
[Tyler Cowen, 11/2/2003 06:18:59 AM]
Your jurisprudence reading for the day: Here is Lawrence Solum''s list of top ten jurisprudence books, and his discussion as to what makes for a good jurisprudence book. I am pleased to see that co-conspirator Randy Barnett makes Solum's top ten.

 
[Tyler Cowen, 11/2/2003 05:35:22 AM]
Sanity about high-tech outsourcing: Robert Reich wrote a very nice opinion piece in today's Washington Post, click here. The article is full of common sense. High-tech outsourcing remains small in relative size, involves intrinsic dangers of quality control and trade secrets, and the number of high-tech jobs is not a fixed sum. I don't buy Reich's conclusion that we need to step up subsidies for "starved for cash" universities. Surely the high-tech innovators, such as MIT, are not impoverished. Though many schools are poor, it is precisely the competition for high-tech cash that spurs our universities to take an interest in commercial applications.

 
[Cori Dauber, 11/2/2003 05:32:43 AM]
Maybe the Times Should Give the Word a Rest for Awhile There was some attention recently to the New York Times' publishers use of the phrase "airbrushing history" to describe what would happen if their 1930s-era reporter had his Pulitzer at long last revoked, given what even Frank Rich desribes in today's paper as essentially "shilling" for Stalin by covering of the Ukranian famine. Now, I am not a fan of the policy that closes Dover Airport to the press, but I think their massive, unified front response to this is a bit overblown. It reminds me of the child who doesnt' play with a toy anymore but screams bloody murder when mama tries to get rid of it -- "I might want that someday!" When was the last time you saw footage of an honor guard receiving coffins, either at Dover or in Germany? The press lost interest in that image long ago, but say it's off limits, and suddenly there is rampant censorship afoot.

But for Maureen Dowd to pronounce this policy "airbrushing" is borderline offensive. Does anyone at the Times actually remember what the phrase means, particularly in the Soviet context, which the publisher evoked explicitly, and which Dowd is clearly going for? Casualty figures are produced regularly. She notes in her piece that papers publish the names -- that's because DOD releases them. More and more articles are appearing about the wounded. This is not "airbrushing" this is denial of one particular shot they hadn't been using for months. Is it a smart policy? Not particularly, I don't think so. But it is hardly trivializing our heroes and their sacrifice, either.

And one more thing -- she also criticizes the president for not attending memorial services. This is one of the more bizzare things I have ever seen the president accused of. Presidents in a time of war do not go to individual soldiers' funerals as a matter of course. It would be utterly inappropriate. To even think he should is suggestive of the kind of wallowing in grief and loss that the media would like to engender, but which is impossible for a nation at war. Memorial services happen because for each family with a loss, every loss is unspeakable tragedy. But for the nation it is honored sacrifice that is accepted (in both senses) as part of the larger effort. To have the president wallow in the loss of each soldier as a member of a family's particular universe, rather than as a member of the national fabric, cannot happen while the nation is participating in a military effort that demands that sacrifice of some of it's people (volunteers, remember.)

A nation at war takes losses. It is what makes war ugly, it is what makes war so ultimate a choice. But it is part of what war is. That is not a refusal to appreciate the tragedy of those losses -- it is because these are people who accept this risk on all our behalfs that we so honor their falling. But if the issue becomes only the fact that we are losing soldiers, and what that loss means to their families as opposed to the nation, then fighting war becomes impossible. Surely there are those who would find that an acceptable outcome. But if you believe there are evils in the world, and threats to American security, that can only be dealt with through military power, than this is what the world is.