Saturday, November 29, 2003

 
[Eugene Volokh, 11/29/2003 06:42:52 PM]
Uh, whoops: Patterico's Pontifications has a great point in the alternate heading for its post: "Why you should think twice when you're the only guy in the world with an amazing insight." Writer Wayne Madsen wrote a column on the left-wing counterpunch site which began by roundly ridiculing President Bush for showing up for Thanksgiving dinner with the troops at 6 a.m. Eastern time. "I would have thought most of the troops," the columnist writes, "many of whom are support personnel who work relatively normal working hours, would have been more surprised when they were ordered to get up before sunrise to eat Thanksgiving dinner between 6:00 and 7:30 A.M." The columnists then faults the media for not picking up on this: "And the abysmal and sycophantic Washington and New York press corps seems to have completely missed the Thanksgiving 'breakfast dinner.'"

     The trouble is that the 6 a.m. report on which the columnist relies seems to have been a typo in one newspaper. The flight actually landed at 6 p.m. The dinner was a dinner dinner, not a breakfast dinner, which is why the "Washington and New York press corps" missed the angle. (All links available at Patterico's Pontifications; thanks also to Pejmanesque.)

     I'd normally be inclined to point out that one advantage of being polite is that if one is wrong, it makes the crow that one has to eat a bitter meal. But here the error was so central to the piece that it's hard to see that keeping the piece polite would have made things much less embarrassing. So I leave it where I started, with Patterico's great point: "[T]hink twice when you're the only guy in the world with an amazing insight." Or, as they say, "They all laughed at Columbus. But they also all laughed at Bozo the Clown."

UPDATE: Patterico correctly points out that "credit goes to Brian O'Connell for catching this . . . . Make sure to visit his posts ([link]) for the full story."

FURTHER UPDATE: Wayne Madsen has seemingly retracted his story, in a post on Indymedia (I say "seemingly" simply because one can't be positive that such posts are written by their ostensible author, and because one of the comments on the thread claims that Madsen did not in fact write the retraction):

I wrote an article, published on Counterpunch.org and re-posted on Indymedia and elsewhere entitled: "Wag the Turkey, Surprise Thanksgiving Turkey at 6am?"

I was dead wrong. I based my entire article on an early news report indicating Bush arrived in Baghdad shortly after 5am. This was incorrect. He arrived at 5:31pm and left around 8pm Baghdad time.

Here is the original article. As I mentioned, the entire premise is based upon an early first report that Bush arrived in Baghdad in the morning, when in fact he arrived in the early evening. I took this bad information and created an entire anti-Bush story around it, and I was wrong.

Unfortunately, though, the original counterpunch column doesn't mention any such retraction, and neither does the counterpunch front page. (Thanks again to Patterico for this latest news.) STILL FURTHER UPDATE: The retraction apparently was indeed a fake, which speaks badly both of the faker and for Madsen, who owes a genuine one.

 
[Eugene Volokh, 11/29/2003 12:50:08 PM]
One more note about arbitrations, Islamic arbitrations, and Jewish arbitrations: One more note; as I mention below, American courts seem to pretty enforce judgments that flow from binding arbitration before a Jewish beth din tribunal. Naturally, the parties have to voluntarily agree to such arbitration (voluntarily from the perspective of the secular legal system; they might feel compelled to do this by their religion, but that's something that is of no concern to the secular legal system). But if they do, their binding arbitration is just as valid as a binding arbitration before a secular arbitral tribunal enforcing secular law.

     Some disputes might, by law, not be arbitrable -- for instance, child custody disputes might not be fully resolvable by arbitration, because they involve the interest of the children, who have not agreed to the arbitration. And some arbitral judgments may not be enforced by courts; for instance, as I mention below, no court would enforce a judgment that someone be killed, and perhaps they might not even enter injunctions that compel a certain purely religious practice (e.g., an order that someone go to synagogue every Shabbat). But that's true for arbitrations generally, whether religious or secular; and it is the exception, not the rule, at least in the U.S.

     It seems to me, then, that a legal system has several options:

1. It can refuse to enforce all private arbitrations, all private arbitrations related to certain topics (e.g., family law), all private arbitrations where the agreement to arbitrate didn't comply with certain formalities (e.g., wasn't explicit, or wasn't written down, or wasn't signed), or all private arbitrations that applied supposedly improper legal rules (e.g., contractual provisions, or rules of another legal system, that discriminate based on sex or religion or what have you).



2. It can enforce all private arbitrations but not ones that were made by religious tribunals, or under religious law.



3. It can enforce private arbitrations, including religious ones -- such as Jewish ones -- but not Moslem ones.

     Option 2, I think, is wrong, because it improperly discriminates against religious people, religious institutions, and religious practices. Once you accept the propriety of enforcing people's contractual preferences for alternative resolution of legal disputes, I think it's wrong to discriminate this way against people's preferences for religious resolution. Option 3, I think, is even more wrong, because it discriminates among religious groups. Moslems are just entitled to have their contracts and their dispute resolution systems be honored by law as Jews.

     So that leaves us with option 1, and the various suboptions -- don't enforce any arbitrations, enforce all arbitrations, or something in between, but defined without regard to the religiosity of the arbitral tribunal or the legal system. I would lean towards enforcing most arbitrations, subject to a few exceptions (such as limits on permissible remedies), because I generally think liberty of contract is better on balance for the contracting parties and for society. People can agree to a wide range of substantive terms for contracts: What is to be done, by whom, when, where, and how, within broad boundaries. They should generally be able to do the same as to the rules for how disputes should be adjudicated. (This is especially so when the parties agree to arbitrate after a dispute has arisen, where the contract to arbitrate seems to me just like a contract to do pretty much anything else.)

     But in any event, regardless of what sorts of limits you put on arbitrations, they should be limits that don't discriminate based on religion. People's religious preferences in contracting should be just as respected as their commercial or secular personal preferences (and of course as other people's preferences under other religions).

 
[Tyler Cowen, 11/29/2003 07:31:01 AM]
Night of the living dead?

"35,000 Indians have joined the Association of the Living Dead, a group of people whose relatives have cheated them out of their fortunes by bribing officials to have them declared legally dead. The living dead, being dead, can't afford the counterbribes necessary to get un-dead-ified.
The "living dead,'' having been cheated out of their property, cannot afford to pay bribes or even legitimate fees to get their cases dealt with.
Lal Bihari, president of the Association of the Living Dead, estimated 35,000 people in Uttar Pradesh state have been wrongly certified as dead."

Here is the original link, through BoingBoing, drawing upon Beyond the Beyond.

 
[Tyler Cowen, 11/29/2003 06:01:28 AM]
Iraqis march against terrorism:

"Hundreds of pro-coalition demonstrators chanting "yes to Iraq, no to terrorism" marched through Baghdad yesterday amid a huge security operation mounted by American and Iraqi forces.
Led by the relatives of two policemen killed in twin suicide bombings last Saturday and protected by two U.S. helicopters and scores of heavily armed Iraqi policemen, the marchers rallied in Firdus Square, where a large bronze statue of Saddam Hussein was toppled by Iraqis and U.S. Marines on April 9 after the fall of Baghdad in the U.S.-led invasion. The march came one day after the surprise visit by President Bush to U.S. forces."

It is so hard to know what is going on in Iraq, at this great distance, given the cultural and linguistic barriers, and with so many sources having partisan agendas of their own. Still we will and should eat up every scrap of good news that we come by, here is the full story, although I would rather have read about "thousands" rather than "hundreds." In any case, let's hope this is for real, as described, and not just somebody's positive spin.

Addendum: Here are two accounts from Iraqi blogs, offering positive spins, click here, and here. Thanks to Charlie Martin for the pointer.

Friday, November 28, 2003

 
[Eugene Volokh, 11/28/2003 07:54:15 PM]
E-mail: I'm afraid I've gotten more messages on the Islamic law / arbitration post and on the "slave" / "master" post to respond to them individually. I've tried to respond to most of the former in the post below; I'll try to see what (if anything) I can say about the latter next week. Sorry that I can't be more personal, and thanks to everyone who wrote, and especially those who pointed me to the U.S. cases dealing with enforcement of Jewish and Islamic law.

 
[Eugene Volokh, 11/28/2003 07:49:44 PM]
More on Islamic law and arbitration: A few more comments on secular courts enforcing binding arbitrations that apply Islamic law, pursuant to contracts that call for such arbitrations:

1. One reader questions whether arbitrations may properly apply laws of other systems: "[I]f I have a dispute with my American neighbor, I doubt the [binding arbitration] could be based on Russian law even if we both agreed to it." On the contrary: Contracts routinely have choice of law clauses that call for the application of the law of a particular country, and these clauses tend to be enforceable, even in standard government-run courts.
   
        Courts might sometimes be unable to enforce religious laws, at least in the United States, but that's not because there's any legal policy against contracts calling for application of foreign law; it's only because there's an Establishment Clause-based legal policy against secular courts making religious judgments. Private arbitral tribunals, though, aren't bound by the same principle. Such tribunals may indeed enforce Russian law (as may courts), or for that matter Islamic law. As some readers pointed out, American courts routinely enforce arbitrations before "beth din" tribunals that apply Jewish law, when the parties have entered into a contract calling for such arbitration. The skies haven't fallen here, and I doubt they will as to Islamic law in Canada.



2. Jacob Levy some others asked whether these arbitrations might be available in divorce and child custody proceedings. Such proceedings do raise some especially thorny issues: Should the ritual marriage agreement (as opposed to some specific prenuptial agreement attached to the ritual agreement) be interpreted as binding the parties to arbitration should the marriage end? May child custody matters be determined by arbitration, or does the judge have final control over them, given that they involve the interest of the children, who weren't parties to the contract? Is even an explicit prenuptial agreement to arbitrate enforceable, and, if so, to what extent? I don't know how Canadian courts will resolve these matters; but I see little reason to think that the result even there will be terribly oppressive (even if I can see some situations where it might be less than optimal). Incidentally, Eric Rasmusen points to two cases where U.S. courts enforced Islamic prenuptial agreements.



3. Some other readers suggested that people might feel pressured to enter into arbitration agreements, by the threat of condemnation or even ostracism from their religious community. That's absolutely right -- but it's also, I think, a necessary consequence of religious liberty. Religions often end up socially pressuring their members to do things: To donate 10% of their income to the church; to not engage in certain conduct that they have every constitutional right to engage in (e.g., blaspheme, go into the pornography business, marry people of other religions, engage in homosexual activity, raise their children in certain ways, join another religion, and so on); to stay in marriages that they'd rather leave; and so on. In fact, one point of religion for many people is to provide pressure that keeps them from backsliding into sinful ways. A key principle of religious liberty, I think, is that it's better to live with this sort of social pressure than to try to save religionists from such pressure.
   
        A contract to arbitrate disputes before a religious tribunal, I think, should be no different than a promise to give certain money to one's church: Both should be enforceable, even if both might have been pressured by the threat of social condemnation by one's coreligionists. (I set aside the very rare circumstances where such agreements can be set aside on grounds of undue influence; note also, for the picky, that promises to make charitable contributions are generally enforceable in spite of the seeming absence of what contract law refers to as "consideration."



4. Some people suggested that to the extent Islamic law treats the sexes differently, there might be problems with Canadian law enforcing the decisions of tribunals that apply such different treatment. The theory would be that Canadian law doesn't just generally prohibit Canadian courts from discriminating based on sex (at least in most situations), but also that it requires Canadian courts to investigate the facially sex-neutral arbitration awards that they're being asked to enforce, to determine whether they were awarded based on sexually discriminatory rules. The matter would turn on the details of Islamic law, and of Canadian antidiscrimination law; I know little about either subject, so I can't speak to that, except to say that this is indeed a potential difficulty. But the worst that would happen is that Canadian courts would just enforce the parties' agreement, notwithstanding any sexually discriminatory rules that might be involved -- and if that's the worst thing that would happen (a party being bound by an agreement that the party signed), it's not that bad.



5. Finally, one correspondent suggests that recognizing binding arbitrations before Islamic tribunals

   would accelerate the fragmentation of the society that adopted it. Different ethnic and religious groups, operating under different systems of law, even if those systems were under the larger umbrella, would be connected by one less common strand. I know that many countries in Europe already have major problems with large unassimilated minorities. I also know that the PC crowd in this country at least thinks that's a good thing, but we can look to Bosnia for an easy reference on what happens when different ethnic groups get too cut off from each other, and view themselves as members of their ethnic group first, and members of a nation second.

   This is a serious concern, but I'm not sure just how far we should be influenced by it here. I'm a big believer in assimilation, but I also believe in religious freedom, and religious freedom for many religions means the ability to form religious communities that will not be fully assimilated. Some such communities are entirely separatist, such as the Amish. Others live in the secular world, but try to govern themselves by special rules -- orthodox Jews and many Muslims fall into this category. My tendency is to say that the secular legal system should generally let them do this, and even help them, to the extent this doesn't unduly burden society, or unduly discriminate in favor of certain religious groups. Moreover, I think that the secular legal system generally should not discriminate against religious people or institutions on the grounds of their religion or their religiosity.
   
        Here, Canadian Muslims seem to be seeking only the sort of rights that others have long possessed in the U.S., and that I assume have also long possessed in Canada: The right to have one's contracts enforced by arbitration tribunals applying the law of the parties' choosing, and not just by government-run courts applying the government-prescribed rules. It seems to me that they should be entitled to this, at least unless there are exceptionally strong reasons to fear exceptionally serious problems; and my correspondent's arguments, while plausible, don't seem to me to rise to this level.

 
[Randy Barnett, 11/28/2003 05:09:54 PM]
Mark Steyn on What Tony Blair's Support Cost Us, and What He Thinks the US needs to do now: Mark Steyn's lengthy (and serious) op-ed in The Spectator, These five regimes must go begins as follow (thanks to Instapundit for the link):

George W. Bush is right. Tony Blair is ‘plenty independent’; he is no poodle. Or, if he is, he’s succeeded in dragging his master through some pretty sticky bits of dog poop. Many of the present difficulties — including the Saddamite restoration movement on the streets of London last week — derive at least in part from the influence of the junior partner.

One or two readers may recall that a year and a half ago I was arguing that the invasion of Iraq needed to take place in the summer of 2002, before the first anniversary of 9/11. Unfortunately, President Bush listened to Mr Blair and not to me, and Mr Blair wanted to go ‘the extra mile’ with the UN, the French, the Guinean foreign minister and the rest of the gang. The extra mile took an extra six or eight months, and at the end of it America went to war with exactly the same allies as she would have done in June 2002. The only difference was that the interminable diplomatic dance emboldened M. Chirac and the other obstructionists, and permitted a relatively small anti-war fringe to blossom into a worldwide mass ‘peace’ movement. It certainly didn’t do anything for the war’s ‘legitimacy’ in the eyes of the world: indeed, insofar as every passing month severed the Iraqi action from the dynamic of 9/11, it diminished it. Taking a year to amass overwhelming force on the borders of Iraq may have made the war shorter and simpler, but it also made the postwar period messier and costlier. With the world’s biggest army twiddling its thumbs in Kuwait for months on end, the regime had time to move stuff around, hide it, ship it over the border to Syria, and allow interested parties to mull over tactics for a post-liberation insurgency.

So, as far as timing’s concerned, I think I was right, and Tony and Colin Powell and the other ‘voices of moderation’ were wrong. . . .

The five countries, he explains, are "terrorism’s most brazen patron (Syria), its ideological inspiration (the prototype Islamic Republic of Iran), its principal paymaster (Saudi Arabia), a critical source of manpower (Sudan) and its most potentially dangerous weapons supplier (North Korea)." [Note to careless readers: I am quoting Steyn here.]

 
[Jacob Levy, 11/28/2003 01:29:46 PM]
Elsewhere: Just keeping up with the good stuff John Holbo and the Timberites have written in the past week is something of a task, but see especially this post of John's on literary criticism and this one by Kieran Healy, also about literary criticism and prompted by my plug of Dale Peck's critical lobbed hand grenade in TNR.

 
[Juan Non-Volokh, 11/28/2003 07:21:11 AM]
New Alcohol Litigation: David Boies III, son of the famed litigator, has filed a class-action suit (in conjunction with his father's law firm) on behalf of parents and guardians of underage drinkers and children subjected to alcohol advertising "alleging that many prominent members of the alcohol industry negligently targeted underage drinkers in their advertising," the WSJ reports (link requires subscription). From the story:

The suit is reminiscent of legal claims made against the tobacco industry for its marketing practices. Virtually all those early suits were settled or thrown out of court, but their contentions began to gain momentum, especially when the litigation produced company documents through discovery that appeared to back up the claims. The eventual outcome was a 1998 settlement between cigarette makers and state attorneys general that prohibits a host of advertising practices as well as calling for major payments to the states by the industry.

Interestingly enough, Miller Brewing Company is not among the named defendants in the suit. Although Boies claims this is because Miller is not one of the "more egregious" actors in the industry, the WSJ notes that Miller has been a client of Boies, Schiller & Flexner in the past.

 
[Juan Non-Volokh, 11/28/2003 07:13:04 AM]
NPR & Low-Wage Workers: National Public Radio is airing a year-long series on "low-wage" workers in America. The average NPR listener is quite well-to-do, and yet NPR is the beneficiary of substantial taxpayer support (not so much directly as through support of individual NPR stations which is used, in part, to pay programming fees to NPR itself). If NPR cares about the working class so much, perhaps it is time to stop taxing wage earners to support NPR programming. Just a thought.

 
[Jacob Levy, 11/28/2003 06:55:33 AM]
Personal legal codes: Eugene's quite right (next post down) that the availability of binding Muslim arbitration in Canada does not bring stoning deaths any closer. The movement is in the direction of India, Israel, and Lebanon, not Nigeria. And I agree entirely with the thrust of Eugene's post, which is that freedom of contract includes the freedom to select arbitration under legal codes other than the one with obvious jurisdiction-- and that, as a result, a great deal of minority religious-legal activity can be incorporated into a liberal state. Indeed I've made that argument myself at some length.

An important question left unanswered by the article, and one I would quite like to know the answer to:
Will marriages between Muslims automatically be deemed to have consented to dissolution and divorce being handled by the Muslim arbitrator? Related questions: does "civil" here include "family law?" Will the estate of a Muslim who dies intestate be handled by the arbitrator? In short: does the arbitrator's jurisdiction extend beyond commercial contracts, and is consent opt-in or opt-out?

Criminal law isn't at stake here. But family law could be; "disputes" could certainly include divorces in this context. And India's rules will have been well-known to the Canadians who drafted these reforms, so I'm sure the question of family law didn't escape their notice, one way or the other.

Thursday, November 27, 2003

 
[Eugene Volokh, 11/27/2003 09:21:00 PM]
Binding arbitration and Islamic law: WorldNetDaily reports:

Canadian judges soon will be enforcing Islamic law, or Sharia, in disputes between Muslims, possibly paving the way to one day administering criminal sentences, such as stoning women caught in adultery. . . .

Canada . . . is preparing for its 1 million-strong Muslim minority to be under the authority of a Sharia system enforced by the Canadian court system, according to the Canadian Law Times.

Muslim delegates at a conference in Etobicoke, Ont., in October elected a 30-member council to establish the Islamic Institute of Civil Justice.

The institute is classified in Islamic law as a Darul-Qada, or judicial tribunal. Its bylaws are scheduled to be drafted and approved by Dec. 31.

Cases will be decided by a Muslim arbitrator, but the local secular Canadian court will be the enforcer. . . .

The reader who e-mailed it to me seemed quite troubled, as is Little Green Footballs.

     I read the Law Times article, and while I may be wrong -- I'm no expert on Canadian law -- it sounds like this simply provides that Muslims may voluntarily submit their civil disputes to an Islamic law arbitrator, and then have his decision be enforced by Canadian courts. That's the same right that Americans (and perhaps Canadians) have long had as to nonreligious arbitration. If you and I agree to submit our dispute to binding arbitration (whether the agreement is made before the dispute arises or after), the arbitration award will generally be enforced by civil courts. That's perfectly proper: It's part of our freedom of contract, and it can often better fit the desires of the parties (as well as produce quicker resolutions). If you don't like this, don't enter into the arbitration agreement.

     Such binding arbitration agreements may sometimes be unenforceable, as to certain causes of action, because the legal system may think that under some situations one's right to have one's case heard by a traditional court shouldn't be waivable. But usually they are quite enforceable. And they sometimes do have provisions saying that the contract should be enforced according to some foreign law -- French law, Saudi law, or whatever else; there's no inherent objection to that.

     I don't see the problem with extending the same rights to people who want to have their civil cases decided under Islamic law. If the parties don't want to have their cases decided that way, then they don't have to agree to binding arbitration. Nothing in the Law Times article suggests, for instance, that Muslims would by Canadian law be required to submit their disputes to such arbitration panels, and I would be quite shocked if there was such a requirement.

     Nor do I see any likelihood that this would indeed "pav[e] the way to one day administering criminal sentences, such as stoning women caught in adultery." American courts have enforced civil arbitration agreements for a long time, and it has by no means paved the way for enforcement of other systems' laws (laws completely different from America's own) in criminal cases. Voluntary resolution of civil cases and mandatory resolution of criminal cases are vastly different matters. I see no reason why allowing parties to agree that their civil disputes be resolved using Islamic law (or British law or California law) would somehow lead the government to insist that criminal matters be enforced using some other system's law.

UPDATE: Some readers suggested that the stoning of adulteresses might happen via the enforcement of the marriage contract: A woman marries a man in an Islamic ceremony; it follows that the couple agree to be bound by Islamic law; therefore, once she commits adultery, a secular court would order that the contract, which embodies Islamic law, be enforced, by stoning (or at least a secular court would not object if others stoned the woman).

     I just can't see that happening. Anglo-American law has long held that consent -- even consent given immediately before, and not just contingently, in a contract signed years ago -- is no defense to a charge of murder. That's why mercy killing is still murder; likewise for dueling. Killing the adulteress would thus remain murder even if one could somehow argue that she had agreed to allow this to happen under her marriage contract. So no need worry about that.

 
[Tyler Cowen, 11/27/2003 05:08:31 PM]
Richard Posner on Bush vs. Gore: Monday afternoon Richard Posner spoke at my university on the Bush vs. Gore case, here is one summary of what he said, thanks to Will Baude for the link. The notes are consistent with my understanding of the talk, but note that the author/speaker himself is the final word, and any blogged description of anything, much less a complex scholarly talk, is the interpretation of one listener, above all.

 
[Stuart Benjamin, 11/27/2003 01:57:52 PM]
Term limits and spending: Randy asks an interesting question (two posts down) about term limits. One of the arguments usually made by proponents of term limits is that representatives will be more responsive to their constituents. This might not be true, if (as some opponents suspect) what term limits really mean is the empowerment of the permanent staffers -- on the theory that it takes a while for legislators to gain their footing (during which time they will rely on their staff), and now that period of uncertainty may constitute a significant part of a term-limited legislative career.

But even if it is true that term limits induce greater responsiveness, that just raises the question of whether that will in fact produce less spending. True responsiveness to constituents' desires might produce a torrent of new spending.

I haven't seen any studies on this (which doesn't mean they don't exist, but just that I haven't seen them). But the main example that comes to mind is not a heartening one for those who hope that term limits will tend to reduce spending: California. Now there's a state that has managed to control its spending.

I know, I know, that the plural of anecdote is not data, and I love to tell my students that the statistical significance of one is zero. Still, California does seem to be a cautionary tale. But I defer to others with more expertise, both on California and on term limits.

 
[Stuart Benjamin, 11/27/2003 12:52:23 PM]
Shouldn't every university have these priorities? TCU has had a fine football season, but their loss last week knocked them out of a potential BCS game and into the GMAC bowl (which gets to invite the second-best team in Conference USA -- this year TCU). As the Washington Post reports, however:

TCU officials indicate they will decline the bid ... because the GMAC Bowl will be played Dec. 18, squarely in the middle of TCU's exams.

"I can't do that," TCU Athletic Director Eric Hyman said last night. "I have to be sensitive to our young people. They are student-athletes, but they are also students, and they are coming to school to get an education. We cannot disrupt their exams. It's not fair to them."

Bowls begin on December 16 and end on January 4, with only a few of these days not having bowls on them. I have to imagine that these dates have conflicted with exam schedules for many teams over the years (and that the same is true for other sports -- note that college basketball is also played in December and January). And yet this is the first time I can recall a school actually refusing to play a game because it would conflict with its students' academic schedules (for exams or any other reason). Assuming that this is not part of some gambit on TCU's part to be in a better bowl (and there seems to be no basis for so believing), this is a heartening development. With schools moving more and more toward unusual scheduling in order to gain revenue (I've been struck by the number of Wednesday and Thursday night games this season -- including, by the way, last Thursday's TCU game), it's nice to see one instance of a school putting at least some priority on academics.

The snarky response is that the notion of a "scholar-athlete" is a joke -- Shulman and Bowen's The Game of Life: College Sports and Educational Values powerfully marshals the depressing statistics on the disparity in credentials between recruited athletes and average students at colleges, including elite ones. So one could argue that the schools that schedule games during exams (and every other revenue-enhancing time) are being more honest by avoiding the pretense of taking academics seriously for their athletes. But I'd still prefer that colleges take academics more seriously, even if the colleges will never go as far as they should.

 
[Randy Barnett, 11/27/2003 08:22:43 AM]
Welcome Stuart!: The Conspiracy just gets stronger and stronger. Resistance is futile.

Stuart: How do term limits fit into your analysis? Do you see repeat players of either party learning to cooperate more easily than one shot players?

Perhaps someone out there knows whether term-limited state legislatures have a better track record on spending, regardless of party, than state legislatures without such limits. (Though I realize this is complicated by state constitutional limits on spending and the inability to monetize state debt--and probably a bunch of other differentiating factors of which I am unaware.)

Happy Thanksgiving everyone.

 
[Tyler Cowen, 11/27/2003 05:34:32 AM]
The mother of all tongues? Indo-European tongues, that is. It now appears to be Turkey, not Siberian horsemen, as is sometimes argued, and the mother tongue appears to be about 8,000 to 10,000 years old. A new study uses improving computer techniques to determine how languages have been branching, how old their common ancestor is, and where that common ancestor comes from. Here is the article itself. Here is a summary from today's Washington Post.

 
[Tyler Cowen, 11/27/2003 05:26:49 AM]
How would you like to have this prosecutor on your case? Once again the Santa Barbara District Attorney's office is going after Michael Jackson. Here is one report of what is going on:

"The prosecutor [Tom Sneddon] apologized yesterday for having joked about the case. Interviewed on CNN, Mr. Sneddon apologized for calling Mr. Jackson "Wacko Jacko" last week in a Court TV interview. He also said his remarks last week were inappropriate when he thanked the hundreds of national and foreign reporters on hand at a press conference for helping boost revenue in California's slumping economy.
"I think, to some extent, that was inappropriate," Mr. Sneddon said. "I feel bad because I think I should have known better. I feel bad that somebody would assume that I'm making light of a thing where I know there is a serious crime and there are victims that have been hurt, and family.""

Click here for the story.

And how about Michael Jackson's personal finances?

"His personal debt is believed to be $200 million...In a lawsuit, a former financial manager said he helped Mr. Jackson borrow $230 million to refinance earlier loans. In 1998, the singer used part of a $140 million loan to pay off an earlier $90 million debt. In 2000, he borrowed $60 million to pay off a $30 million debt assumed a year earlier. "

 
[Stuart Benjamin, 11/27/2003 12:01:07 AM]
The Republicans' spending spree: David Bernstein's post on the Republican collapse, and the items by Tim Cavanaugh and Daniel Drezner prompt me to ask the question of how to explain why non-defense spending has increased so much more dramatically in the Bush administration than in previous administrations, and what it tells us. First, some background: according to the Cato Institute (a group not known as Republican bashers), in the first three years of the Bush administration, non-defense discretionary outlays will have risen by 20.8 percent. This compares to a .7% decrease in such spending for the first three years of the Clinton administration, and a 13.5% decrease under Ronald Reagan. Note that this is non-defense spending.

     Now we have huge additional sums coming down the pike -- $400 billion over the next ten years for Medicare (which, according to the Congressional Budget Office, could balloon to between $1.7 trillion and $2 trillion in its second ten years), $33 billion for the energy bill (which could be almost twice that amount if the planned phaseouts of the tax breaks do not materialize), and $22 billion for expanding veterans' benefits. So why has spending increased so much more in this administration than in the previous one?

     One explanation is that Republicans know that, now that they are in charge of the White House and both branches of Congress, people expect "results" -- and "results" take the form of more government spending (especially as the baby boomers near retirement -- they might expect to rely more on government largesse in their later years and/or might care less about what implications this will have 30 years from now, because with each passing day they are less likely to live another 30 years). But, if that's the explanation, then Republicans will spend just as much as Democrats would (and maybe more, if the Clinton example is instructive). Republicans and Democrats will have different priorities, but each will break the bank.

     Another explanation is that Republicans know that their majorities are too slim for comfort; they want to coopt the goals of moderate voters as a means of gaining the loyalty of those voters and thus remaining in power. This is a familiar political gambit (one used successfully by Clinton vis-a-vis welfare reform, for example). But if this thesis is correct, then those favoring limited government spending should prefer that Republicans constitute a strong enough minority to block legislation, but still be in the minority: that way, the Republicans' best electoral strategy would be to deny Democrats the opportunity to gain the loyalties of moderates by denying them the "success" of enacting additional programs. Once they become part of the majority, they will coopt (and spend) in order to stay in power.

     One way to avoid this problem is to have overwhelming (and seemingly perpetual) control of all branches of government by one party (so long as the party was ideologically committed to keeping spending under control). That way, they see no need to coopt moderate voters. But this entails a huge risk (if the party in power misbehaves once it has such control, as has been the case in most one-party states), and it is unrealistic in this country.

     This might suggest that the best way to limit spending is to have divided government. Each party will be sufficiently hostile to the success of the other that it will block any major new spending initiatives (for fear that the initiatives will redound to its opponents' benefit). (I saw Arthur Laffer give a speech in 1999. He talked at some length about how the atmosphere in D.C. was more poisonous than he had ever seen. His punchline was, "It doesn't get any better than this.")

     This is not a completely satisfying answer, though, because in the first two years of the Clinton administration (which saw restrained spending), the Democrats controlled both houses of Congress and the White House. In other words, there was fiscal restraint in the absence of divided government. (One might be tempted to explain away the early Clinton years by noting that, back then, the lawmakers were responding to a sizable federal deficit -- as opposed to today, when ... nevermind.)

     I may be wrong in all my suppositions; but, if so, how do we explain the increase in spending, and what is the best way to avoid it in the future?

Wednesday, November 26, 2003

 
[Eugene Volokh, 11/26/2003 10:49:15 PM]
Stuart Benjamin: I am delighted to announce that my friend and fellow law professor, Stuart Benjamin, is joining us here at the Conspiracy. Stuart is an expert on many things, including telecommunications law, First Amendment law, and Indian law; before going into teaching, he worked in the Office of Legal Counsel in the U.S. Department of Justice, and clerked for Justice David Souter. I'm very much looking forward to his posts.

 
[Eugene Volokh, 11/26/2003 03:31:40 PM]
I am offended: I am offended by people being offended by the use of "master" and "slave" to refer to computer components. I interpret their assertions that they're offended, and that the usage is somehow insensitive, as an attack on all whites, by insinuating that we are culpable even when we use perfectly innocent terms.

     I insist that Los Angeles County immediately stop complaining about the use of "master" and "slave," and that it strongly urge that its contractors do the same.

 
[Eugene Volokh, 11/26/2003 03:27:51 PM]
More on master/slave: My friend Jack Schaedel passes along this:

Under orders from the [Los Angeles County] affirmative action office, county departments have surveyed about 1,000 pieces of equipment and taped over "master/slave" and put "primary/secondary" on the equipment, officials said.

Joe Sandoval, division manager of purchasing and contract services in the Internal Services Department, started the flap with a memo to electronic equipment vendors saying the county wants master and slave labeling removed from computer equipment it buys.

"The County of Los Angeles actively promotes and is committed to ensure a work environment that is free from any discriminatory influence be it actual or perceived," he wrote in the Nov. 18 memo.

"One such recent example included the manufacturer's labeling of equipment where the words 'Master/Slave' appeared to identify the primary and secondary sources. Based on the cultural diversity and sensitivity of Los Angeles County, this is not an acceptable identification label." . . .

In one e-mail [received by the county] from "Ashamed to be a Native Californian," the writer said, "This has Beavis and Butthead written all over it. . . ."

Sandoval said a Probation Department employee complained to the Office of Affirmative Action Compliance that video equipment had the terms "master/slave" written on it.

As a result of the investigation, the affirmative action office said he should see whether the county could stop buying electronics with those labels on them.

"What we are doing is soliciting vendors who regularly do business with the county to look at their equipment and help us where they can," Sandoval said. "It's not a policy decision or mandate, but that's what folks took it as."

Dennis A. Tafoya, director of the affirmative action office, said an African-American employee who filed the complaint felt it was employment discrimination because the employee was working on video equipment with the label written on it. The office investigated and determined that the complaint did not involve employment discrimination, but the official recognized that the term could be perceived as offensive.

"The issue was the employee had to operate this equipment and look at the term 'slave and master,' and given their background as an African-American person, I imagine they had different feelings about it," Tafoya said.

"We found the terms were antiquated and offensive to individuals and that a more reasonable term could be used. I think that's what we should do. If it means culture change, then we have to begin someplace.

"This has got some people's hair up on the back of their neck. They believe it's a question of being politically correct. It's not that at all. It's an issue of valuing diversity, respect and dignity for the individual who comes to work here every day. The issue that resonates in different people's minds is a very negative connotation." . . .

Seriously, what's next? How many more words are going to be expurgated because a tiny minority of the group that's supposely offended (here, there was a complaint from one person, a view that I highly doubt is shared by most or even many blacks who work in the computer business, or near the computer business) decides to flex its muscles, and experience the rare pleasure of ordering other people about?

 
[Sasha Volokh, 11/26/2003 11:51:47 AM]
Another Russian poetry translation: by me, of a 1917 poem by Anna Akhmatova (1889-1966):

It's the night of the 21st. Monday.
The skyline stands out in the mist.
Some idiot figured out, one day,
That love on this earth can exist.

And through ignorance, boredom, frustration,
They believed him. And that's how it goes --
They make rendez-vous, fear separation,
And they sing of their joys and their woes.

But some others see through this delusion,
And a silence descends, soft and still;
I once happened to reach this conclusion,
And since then it's as if I've been ill.

 
[Jacob Levy, 11/26/2003 10:49:17 AM]
Interesting bits and pieces: Amanda Butler on the word "marriage," social usage, and civil-unions-plus-liberal-church-ceremonies.

John Holbo, usually a level-headed guy with exemplary taste, defends Matrix Revolutions.

Matt Welch sees hope for the free-trade left.

Tim Cavanaugh on the Republican collapse.

Kevin Drum on the Republican collapse, and again.

Matt Yglesias and David Adesnik on David Brook's odd claim that "anybody who has several sexual partners in a year is committing spiritual suicide."

Dale Peck's must-read (but unfortunately subscribers-only) TNR essay on modern and contemporary novels, which will inflame, annoy, and antagonize many and will get them thinking and arguing about the state of literature.

I will say it once and for all, straight out: it all went wrong with James Joyce. A Portrait of the Artist as a Young Man is less a bildungsroman than the chapter-by-chapter unraveling of a talent that, if "The Dead" is any indication, could have been formidable, while Ulysses is nothing more than a hoax upon literature, a joint shenanigan of the writer and the critical establishment predicated on two admirable, even beautiful fallacies that were hopelessly contingent upon the historical circumstances that produced them: William James's late Victorian metaphor of the stream of consciousness, which seems at this point closer to phrenology than modern notions of psychology and neurology; and T.S. Eliot's early modern fantasy of a textual stockpile of intellectual history that would form an allusive network of bridges to the cultural triumphs of the ages, a Venice without the smell of sewage, or mustard gas... He lacked the doubt in language's ability to render the world that had made stream of consciousness so attractive to early twentiethcentury writers in the first place, but thought instead that he was producing a mimetic account of how the mind worked; all you need do then is render a great mind--a mind as great as, say, Joyce's--and all your problems would go away. And of course Joyce has his strengths; but it is his failings that have been most successful, most pervasive in their effect. Ulysses has served since its publication as the ideal for serious writers, and the twentieth century is littered with magnum opuses that have been written under its sway, and that have marked the nadir of their various writers' careers.

If you are not a novelist, you cannot imagine what it feels like to write such heresy. Though I normally write in the morning, I am writing this in the middle of the night, like a fugitive; and my hands are shaking as I type. The excision from the canon, or at least the demotion in status, of most of Joyce, half of Faulkner and Nabokov, nearly all of Gaddis, Pynchon, and DeLillo, not to mention the general dumping of their contemporary heirs? The enormity of my presumptuousness cows even me. And then there's that other strain, which I can hardly bear to slog through, the realists and the realists and the realists, too many to name, too many to contemplate, their rational, utilitarian platitudes rolling out endlessly like toilet paper off a spindle. Who am I to say these brutal things? But a piecemeal approach won't do anymore. The problem is too widespread within the insular literary and publishing world merely to pick at its edges: the entire scab must be ripped off.

Adesnik and friend on the astonishingly misguided Gelb piece in yesterday's NYT recommending breaking Iraq up into three states as a tactical move.

And Andrew Sabl on Wesley Clark.

 
[Eugene Volokh, 11/26/2003 07:54:56 AM]
I did not know that! Brandenburg v. Ohio (1969), the First Amendment case that enunciated the modern rule for when speech may be punished because it incites crime (answer: rarely), is an unsigned "per curiam" opinion. That's odd: Per curiams are not the norm; they are mostly either summary dispositions without oral argument (usually cases the Court sees as open and shut, and not really breaking new ground), cases so complex that several Justices cowrote the lead opinoin (such as Buckley v. Valeo, the campaign finance case), cases so contentious that there's really no true opinion for the Court (such as the Pentagon Papers case, where the per curiam simply announces the bottom-line result), or cases that are done in a huge rush (such as Bush v. Gore). Why would an important but not unusual Supreme Court case such as Brandenburg be unsigned?

     Walter Dellinger, a Duke law professor, leading Supreme Court litigator, and former Acting Solicitor General, has the answer:

The Brandenburg opinion was drafted by Justice Fortas. He had resigned from the Court for taking money from the Wolfson foundation by the time of announcement of the decision so it was issued per curiam.

Cool little tidbit, I think.

 
[David Bernstein, 11/26/2003 07:50:49 AM]
Unintentional Self-Parody Department: I'm not entirely unsympathetic to vegetarianism, but I was certain that the "vegetarian vigilante" interview with Bernard Goetz, linked to below by Sasha, was a parody. Apparently not.

 
[Tyler Cowen, 11/26/2003 07:36:47 AM]
How long do web pages last? Here is one useful story on the phenomenon of disappearing web pages:

"...40 percent to 50 percent of the URLs referenced in articles in two computing journals were inaccessible within four years..."It's a huge problem," said Brewster Kahle, digital librarian at the Internet Archive in San Francisco. "The average lifespan of a Web page today is 100 days. This is no way to run a culture."... the Web's relentless morphing affects a lot more than footnotes. People are increasingly dependent on the Web to get information from companies, organizations and governments. Yet, of the 2,483 British government Web sites, for example, 25 percent change their URL each year, said David Worlock of Electronic Publishing Services Ltd. in London."

At least one solution is available:

"Several organizations, including the popular search engine Google and Kahle's Internet Archive (www.archive.org), are taking snapshots of Web pages and archiving them as fast as they can so they can be viewed even after they are pulled down from their sites. The Internet Archive already contains more than 200 terabytes of information (a terabyte is a million million bytes) -- equivalent to about 200 million books. Every month it is adding 20 more terabytes, equivalent to the number of words in the entire Library of Congress."

Thet last factoid in that quotation is truly astonishing. By the way, for a jokier solution to the problem of disappearing web pages, click here.

The deeper question is how much we should care about disappearing web pages, and on that I have yet to see a good analysis. Bromides about the importance of our past, or the importance of history, do not suffice. What good is cataloging all that material if it is too extensive to ever be surveyed or read?

For the original pointer to the article, I am indebted to www.politicaltheory.info.

Tuesday, November 25, 2003

 
[Sasha Volokh, 11/25/2003 02:36:56 PM]
My friend Jean, in Hong Kong, writes:

Hi Sash,
Do you, your brother or any of your law buddies know where I can donate money to this guy's legal defense? I am glad that this modern day Bernard Goetz went off on those Viagra hawking bastards. I hope he gets off with community service.

UPDATE: Jean also points me to the new, vegetarian face of Bernard Goetz.

 
[Sasha Volokh, 11/25/2003 02:35:32 PM]
Very interesting: The L.A. Chapter of the Society of Professional Journalists apparently has a Freedom of Information Award. Take a look!

 
[Eugene Volokh, 11/25/2003 02:26:15 PM]
Harshness: A reader writes, responding to my post about the Klansman who got critically injured by a fellow Klansman's shot at a Klan initiation:

Subject: a little harsh, no?

I'm a bit surprised that you take someone's critical injury so lightly ... even if you disagree with his politics.

It's not like you to be so seemingly callous.

     A little harsh? A lot harsh. I believe in being harsh to Klansmen. I have zero sympathy for them, and I would shed no tears if more got critically injured. I'm pretty broad-minded as to people's politics. The Klan is way outside my limits.

     Nor do I think that I'm being "callous," in the sense of being indifferent to human suffering. I'm thinking of the people this jerk might have victimized or terrorized in the future, or the mess he could have made of some child's mind. The world is likely to endure less suffering with fewer Klansmen in it.

UPDATE: My correspondent responds, quite thoughtfully and politely; but I stand by my assertion. Klan members are more than just people who "hate a group of people because of their skin color" (which is pretty bad even as it is). They are people who deliberately joined an organization that made its name by terrorizing, beating, and murdering people because of their skin color.

     Fortunately, that aspect of the Klan's life is now mostly in the past; but, I strongly suspect, because such terrorism has become harder for the terrorizers to pull off safely, and not because of any real change in their desires. So, yes, if someone joins a group whose name is nearly synonymous not just with racism but with racist violence, I wish him nothing but ill; and while I sympathize with his children, I sincerely think they would likely be better off without his evil influence over their lives.

     I appreciate my correspondent's views, which seem to flow from his Christian beliefs. I do not, however, share those beliefs, or those views.

 
[Randy Barnett, 11/25/2003 02:19:54 PM]
The Republican Party's Paradox: A nice analysis of the Republican by Michael Van Winkle on The Chicago Report that lays blame squarely at the feet of the President. A taste (from the middle of the piece):

Clinton left office without giving the Democrats any direction. The party under Clinton existed to serve his presidency, to defend his antics and get him reelected. All the while, Clinton's policies were creating fissures in the party, fissures he had no intention of smoothing over with his leadership. When a party is split between two possible futures it's up to the leader to pick one and raise the sails. Otherwise, the party is left aimlessly afloat and burdened with resolving the structural cracks itself. This is a very difficult process and we're seeing it played out in the Democratic Primaries. The Democrats aren't sure what their party is and where it's going.

Bush is doing the same number on the Republicans. Sure, he is working toward reelection and will probably be successful, but what about that other role, Republican Party leader? Well, he doesn't seem to take that role very seriously. He isn't leading the GOP toward any coherent destiny beyond his own presidency. This is the primary difference between Bush and Reagan. They both cut taxes, but the latter did it with a vision for the future. The former has done it, primarily for political expediency (not that I am complaining). The Republicans have to ask themselves, "what happens after Bush is gone?" "Do we like the direction the party is moving?"

 
[Eugene Volokh, 11/25/2003 10:15:30 AM]
HTML version of the Tony Twist brief, I hope: Many people had trouble accessing the PDF file for the Tony Twist brief; for some reason, the process of converting this particular document to PDF format was extraordinarily glitchy. In any case, I hope I now have an HTML version of the brief here. Or, if you'd like, just e-mail me and I'll send you a Word version.

 
[Jacob Levy, 11/25/2003 09:40:09 AM]
NH Primary: This is the best national-press article I've yet seen this year on what the New Hampshire primary season is like. (I don't know D'Allesandro myself, though I know of him and never much liked his politics. I believe he ran for Congress unsuccessfully when I was a kid, but he's otherwise been in Concord roughly forever.)

(And no, the ten-year-old who asked Bob Kerrey a three-part question wasn't me. I didn't really start pestering candidates until the '84 election, by which time I was 12.)

 
[Tyler Cowen, 11/25/2003 09:35:42 AM]
Can they read us in China? I don't usually blog about material that is covered by Instapundit.com, but perhaps not everyone read the whole text of this article on the blogging boom in Asia.

The whole article is fascinating, here is a key passage for VC readers:

"China’s notoriously sensitive government has already seen fit to block all sites hosted by the leading American blogging provider, Blogger.com, but for the moment, English language blogs appear to be tolerated in much of Asia. “The most popular blogs in Asia do not probably have a large enough audience to concern the authorities within more restrictive governments nor are they large enough to have a significant impact on public opinion,” argues Conrad of the Gweilo Diaries. “When Asia spawns its own Glenn Reynolds or Andrew Sullivan, the situation may well be different, but that hasn’t happened yet,” says Conrad."

In other words, they can't read us in China. If anyone in China (or elsewhere) knows this to be wrong, please write me.

Addendum: Michael Friedman relates the following:

"Don’t worry – we can read Volokh from China. But we can’t get to www.blogspot.com. You guys switched over from that about a week after the block was put in place. We can reach blogger.com, however."

 
[Jacob Levy, 11/25/2003 08:54:00 AM]
Blogger it I wrote a long post on the Toronto Palestinian conference (see: David, Henry, Matt) and it got swallowed. Trying to reproduce it:

The principles at stake here are actually idiosyncratic ones-- contrary to Henry's closing suggestion, this has relatively little in common with broader issues of political free speech.

What's at stake is freedom of association and of sub-association.

A non-university Palestinian association ought to be perfectly free to require, as a condition of entering any of its events or meetings, that people sign a document affirming their belief that Jewish Israeli civilians ought to be killed, that the PA is a liberal democracy and Israel an autocratic tyranny, that the gay and lesbian Palestinians who seek refuge in Tel Aviv are traitors and should be shot, or whatever.

A creedal private university ought to be free to require that all of its students and faculty affirm such beliefs, or whatever other beliefs the university wishes.

But a non-creedal university (I'm going to skip over public-private issues here, both because I don't know Canadian law and because I don't think the difference either does or should decisively affect what I'm going to say) operates under a distinctive ethic-- unlike the rules of a state and unlike the rules of a private association. It is devoted to inquiry, argument, debate, research, and learning.

To promote those ends, non-creedal universities at their best are institutionally neutral on questions of political or religious controversy, but create internal mechanisms, associations, institutions, and fora for professors and students to promote one side or another in such controversies. All of those mechanisms are subordinate to the university's overarching purposes. Consider: ordinarily members of the faculty are given considerable discretion over the content of their courses and their pedagogical approach. They are free to teach Middle Eastern politics with a syllabus that ranges from Said to Chomsky. They are free to teach economics with a syllabus that ranges from Friedman to Schwartz, or for that matter with one that ranges from Mises to Rothbard or from Keynes to Samuelson or from Marx to Engels; free to teach a course on Christian ethics wholly from the inside. (I'm skipping over some complexities between the freedom of an individual member of the faculty and departmental autonomy-- in either case the university as an institution doesn't intervene.) They are even typically institutionally free-- though under a contrary obligation of professional ethics-- to conduct their courses as indoctrinating lectures with no opportunity for questions or arguments. But what they are not free to do-- what will bring a university intervention-- is to limit enrollment in their courses to those students who agree to their political/ religious/ moral views, or to penalize students (with haranguing, harassment, lower grades, etc) who do not agree. And that's entirely appropriate. Pedagogical freedom is not an absolute; it is instrumental and subservient to the university's overarching interest in promoting free inquiry and debate. There was a briefly-notorious case last year of a Berkeley instructor whose course description told conservative students to stay out; the university intervened, and appropriately so.

Much the same is true for the system of sub-associations that is almost-universal at non-creedal universities. The schools create mechanisms through which students can form associations, organizations, clubs, etc. It even typically funds these, one way or another. It grants privileges to such official sub-associations, such as the ability to use university space for meetings and events. It uses them, as it uses professors, as a primary means for the promotion of ideas on campus, ideas which will be heard, learned from, argued with, and so on.

The university's neutrality as to matters of political and religious belief means that it should not condition the ability to form sub-associations on the content of the views being promoted. Beyond that, things get somewhat messy. But as far as I can tell the following roughly describes common practice-- and common practice does a pretty good job.

-Associations can restrict membership and office-eligibility to those who support the association's purpose. This may involve a creedal test. At some universities some associations are free to restrict membership on the basis of ascriptive traits as well-- viz. only women, gays and lesbians only-- though at no university I know of is there a general principle to that effect. (No one allows avowedly whites-only clubs.)

-Associations may from time to time conduct members-only meetings. Some business is better conducted, some plans better made, when there's no worry about journalists, disruptors, or even potential new recruits. Elections are an obvious but not the only example. The College Democrats needn't allow their elections, or even their event planning, to get hijacked by the Sparticist League, whose primary purpose is to disrupt and hijack other student organizations (typically organizations of the left).

-Associations may not have all their meetings be members-only; and it must be possible for non-members to become members somehow. This gets argued out from time to time when student journalists try to cover meetings of student groups.

-And the public events that associations sponsor-- especially but not only those that involve bringing one or more outside speakers to campus-- may not be members-only. They typically must be open to all members of the university community. This is a formal rule at the two universities whose policies I know best, and it sounds like it was a pre-existing formal rule at Toronto as well. Once the clubs are out of event-planning mode and into actual events for the exploration and propagation of ideas, the university's overarching interest in allowing everyone the ability to hear and learn from and argue with ideas kicks in.

-This does not, contrary to what one of Henry's commentators suggested, mean that university chapels have to give communion to non-Catholics-- though I think it is common practice to say that religious services in university chapels have to be open to all comers. Open attendance is different from open access to the sacraments or their equivalents in other religions-- a distinction that Catholic churches off-campus draw as well.

-Neither does it mean that an association has an obligation to include opposing viewpoints in its conferences or panels or lectures; it can impose a strict creedal test on those it invites to speak. But open attendance is a common rule; and there is often a rule requiring Q&A time as well, when there is an outside speaker. The university gets into the business of having sub-associations which sponsor lectures and events and so on for the sake of the overall intellectual climate on campus; and it has both the right and (I would argue) the responsibility to ensure that such events play their part in that climate of inquiry and debate. They may promote a particular view quite vigorously; they may not be open only to those who already agree with that view.

-By the same token, the university typically takes on a special obligation to prevent hecklers' vetoes, a stronger one than the state takes on. Protesting a given speaker is perfectly appropriate, but the university should not allow lectures, conferences, and so on to be shut down or shouted down by those who disagree with them. Here again the understanding of free speech at stake is a bit idiosyncratic to universities. In a Hyde Park-style public setting (no, not the Hyde Park I live in-- the other one), speech and counter-speech can be simultaneous and equally loud. But the promotion of debate by the expression of ideas requires that the ideas be allowed to be expressed. The "more speech" dictum, in this setting, means: organize your own conference; write articles; conduct a protest outside the auditorium. But it does not mean "shout down the speaker."

Another of Henry's commentators expressed concern about the conference becoming a "shouting match with Likudniks." The conference should be free to go on, and organizers should be free to remove people who try to stop it from doing so. That doesn't require excluding "Likudniks" from the audience, or removing them if they engage in ordinary questioning and discussion during the appropriate times.

---

A final note: I'm note sure whether to read Matt's post as being a snide slam on David or not.

Henry Farrel's got himself in one of those free speech dilemmas. The answer, however, is easy. When deciding whether or not a given piece of conduct is protected by the principles of free speech, what you must ask yourself is "Do I agree with the things they are saying?" If, upon examination, their speech seems repugnant to you, then you go ahead and ban it and rationalize away. Similarly, Unlearned Hand wonders what to think about a judicial decision that he agrees with as a policy matter, but wonders about the legal legitimacy of. Again, just ask yourself "Is it good policy to strike the law down?" and if it is, you strike the law down and then you rationalize. Rationalize, rationalize, rationalize. What are they teaching in law schools nowadays?

(with "rationalize away" being linked to David's post). This is silly, because Toronto's decision was not based on the content of the speech, and because Toronto did not prevent the conference from taking place-- it only required open attendance, a condition the organizers rejected. (They're free to relocate off-campus-- though if the conference was getting university funds, the funds presumably won't follow. But if the conference was university-funded then the case for open attendance only gets stronger.) But it might be sincere on Matt's part-- because the closing comment about law and policy actually does seem to be his considered judicial philosophy. In general Matt has odd views about principles that go with his odd views about ethics and metaethics-- so I'm not sure that "rationalize, rationalize, rationalize" is actually meant ironically here. It might be sincere, in Stanley Fish fashion.

 
[David Bernstein, 11/25/2003 07:58:15 AM]
Child Molestor of Teenagers? This Fourth Circuit opinion upholds the exclusion of the testimony of a forensic psychologist expert on child molestation in a case alleging that an ROTC officer had improper sexual contact with several minors. An oddity of the case, not discussed in the opinion, is that the "children" involved were 15-17 years old. The expert was to testify regarding the typical conduct of "child molestors." While I certainly agree that it's improper for an adult to have sexual contact with an underage girl (and especially in this case where the adult is alleged to have abused his authority), is it really the case that the psychological profile of a man who desires sex with a sexually mature seventeen year old is the same as the profile of a man who desires sex with a pre-pubescent nine year old? Sexual predator, perhaps, would be an apt depiction of a man who takes advantage of teenage girls, but "child molestor" seems a different category. (Via Blog 702) Or is there evidence in the psychology literature to the contrary?
UPDATE: Eric Muller finds a definition of "child molestation" that would include anyone having sexual contact with someone underage--including, according to this definition, an 18 year old boy having sexual contact with a 17 year old girl. D.C. law student has a thoughtful post on age of consent laws and the dubious practice of treating 17 year olds exactly like small children for the purposes of these laws.

Monday, November 24, 2003

 
[Eugene Volokh, 11/24/2003 08:08:22 PM]
There are tragic accidents, and there are not-so-tragic accidents:

A bullet fired in the air during a Ku Klux Klan initiation ceremony came down and struck a participant in the head, critically injuring him, authorities said.

 
[Jacob Levy, 11/24/2003 04:11:56 PM]
Indeterminacy, one last time: A correspondent writes in part:

I think you are being a little unfair to the indeterminacy argument. Even though it has probably not been expressed to you in quite this way, I think that underlying the indeterminacy argument is a belief that, yes, procreative marriage is the archetypal marriage, the form of marriage which merits state protection, so there is no Constitutional right to non-procreative marriage, *BUT* that for the *state* to distinguish between procreative marriage and non-procreative marriage would necessarily involve an invasion of peoples' penumbral Constitutional privacy right.

For example, if the couple is infertile on either part, the determination would involve some sort of mandatory test of fertility. Now, I think that America does not throw up medical tests as bars to marriage, though other countries do, if I recall correctly. The state may require tests for STDs or somesuch, and this may have received Constitutional approval (though, I think that such a precedent might indicate the state's particular and Constitutionally permissible interest in procreative marriage--I do not know). Anyway, beyond that, if the state required some investigation into the parties' reasons for marrying (i.e. whether they intend to produce offspring), that would invade their privacy of sexual decisionmaking (just as regulation of contraceptive use was found to invade that privacy). All told, though, I think a strong case could be made that such inquiries would all involve an impermissible invasion of the couple's privacy.

These issues do not come up with homosexual marriage, because the information necessary for such a determination does not require medical tests or invasive investigations into exactly what people intend to be doing in their shared marital bed. The information required to conclude that a homosexual couple cannot procreate is all perfectly available to the state, which differentiates and discriminates between men and women all the time, in all sorts of situations, in which that determination has not been considered an invasion of privacy[…]

All told, marriage is (under this view), a state instrument poorly tailored to its objectives (i.e. producing enough children each generation that we don't have to import huge numbers of third world labourers to support us native-born with their taxes, when we are old; and raising those children in stable families), but poorly tailored because the Constitution would bar the legislatures from a narrow tailoring. (Which, as you point out, would now be politically impracticable anyhow).

I think this is fair, and pretty reasonable. But I don’t think it succeeds.

Why? Incest.

No state that I know of goes to the trouble of genetically testing applicants for a marriage license to see whether they are brother and sister or, in states where this is illegal, cousins. It declares such marriages null and void in general (and may criminalize the sexual activity between the would-be spouses), but it doesn’t do anything preventative to stop people from getting married. If a dispute arises, of course, one party will point out to the court that the marriage was legally invalid from the word go. But nothing invasive is done ex ante. Indeed, I don’t even remember being asked about consanguinity when applying for a marriage license. Despite all that solicitude for the privacy of would-be spouses, the prohibition on incestuous marriages stands.

For that matter, county clerks aren’t in the habit of asking applicants for marriage licenses to pull down their pants to establish their sex. But if, say, two men got married before a justice of the peace and got away with it because one of them was convincingly dressed as a woman, their marriage would be invalid. (Some DOMA states may well ask couples to affirm that they are man-and-woman; I don’t know.)

And, as we all know from buying things online, sometimes one establishes legal eligibility to do something (i.e. age eligibility to make a credit card purchase or sign up for an e-mail list) just by affirming it. Only later, in the event of dispute, will it come out that little Johnny is only 12 and is therefore ineligible to sign up for e-mail updates or to view the E-Bay auctions of Schwarzenegger-interviewing dirty magazines from the 1970s.

One can have criteria for eligibility for marriage (or other things like contract) that the state doesn’t invasively establish ex ante. One can even have criteria about which one doesn’t ask the applicants. Legality and enforcement are to some substantial degree separable—here more than in the criminal law, I would suggest. Penumbral privacy rights, or just our general moral interest in privacy, do create some constraints on what ought to be criminalized, because some kinds of criminal law statutes would require gross invasiveness for consistent enforcement, and would authorize arbitrary police power if not consistently enforced. But I don’t see that that applies to marriage, contract, and so on. At least, it does not seem to apply to marriage as a matter of American law. If marriage is legally justified only in terms of childbearing, then one could prohibit marriage by those who know themselves to be infertile, with enforcement coming only in the form of ex post annulment and possible prosecution for fraud or perjury (if an affirmation was required ex ante). That would be no more invasive than what is done now with respect to incest or gay marriage.

 
[Randy Barnett, 11/24/2003 02:51:13 PM]
Larry Solum on Anderson on "Schumerism": On Legal Theory Blog, Larry Solum adds another insightful and measured installment to his long-running analysis of the conflict over judicial nominations. This time he is responding to Schumerism: Democrats subvert the Constitution through judicial filibusters, by Brian C. Anderson.

 
[Randy Barnett, 11/24/2003 02:27:27 PM]
The Republican Collapse II: I finally thought of something to add to David's post concerning the Republican Collapse, but I said it before in my earlier post, The Ambiguous Meaning of Falling Approval Ratings. If the approval ratings of Republican, Congress, and the President fall, who will blame that fall on these votes, rather than on, say, Iraq policy? And where's the successful Democrat filibuster when you need one?

 
[Jacob Levy, 11/24/2003 01:48:46 PM]
Links and e-mail Links of the day:
Brad deLong on trade
Dan Drezner on the Republican collapse, on trade, and on the return of Opus. (Anyone know whether Opus is always going to get a complete half-page, or whether that was a one-time thing? And, while we're on the topic of the comics pages, why on earth is today's Boondocks omitted from the Trib in favor of a rerun? This seems an odd Boondocks to lose one's nerve over, compared with all the ones that do run.)

Two responses to a bunch of e-mails that I won't have time to respond to:
1) Given that time is scarce and not all e-mails can be responded to-- and some days can't even all be read-- I want to thank my correspondents who invoke NAMBLA as relevant to what the legal rights and privileges of gays and lesbians who wish to commit to monogamous relationships with other adults should be. You provide me with an instant decision-rule that lands your e-mails in the "deleted" box. (Yes, I mean you, and you, and you who wrote an otherwise-thoughtful note, and you in the yellow font.) E-mails about this decision-rule on my part will meet the same fate-- if you don't like it, blog about it elsewhere, but don't expect me to read it...

2) But I am faithfully reading stuff about procreation. And I confess I'm still very puzzled by the frequency with which people invoke indeterminacy, claim that we can't know whether heterosexual couples will truly not procreate, claim that we can't know whether they are incapable of it, etc etc. Much of this was once true. But it's not any more. People write in and say "Contraception might fail, so even heterosexual couples who don't mean to procreate might, so they have to be able to get married." Not all contraception can fail. Vasectomies and tubal ligations-- not to mention hysterectomies, which aren't undertaken for contraceptive purposes-- are 100% effective at preventing conception. Moreover, it is now often the case that involuntary infertility can be diagnosed precisely. Some couples have severe difficulty with conceiving but still might happen to someday. But some couples simply aren't going to. And, of course, the no-conjugal-visits life prisoners who have a constitutional right to marry are pretty well guaranteed not to procreate either.

The indeterminacy argument-- "it's impossible to know, so all heterosexual couples have to be able to get married just in case they have a baby someday"-- just can't hold any more. Something like it may be at the root of how the (religious or legal) rules evolved. But it cannot now stand as a sufficient response, one that draws a bright line between all heterosexual couples (who have a fundamental right to marry because of their marriage's link to childbearing) and all gay or lesbian couples (who have no such right because they cannot have a child of whom they are both biological parents).

The more I see-- including in yesterday's NYT article interviewing swing-county voters about gay marriage-- the more convinced I am that the arguments holding that gay marriage is impermissible also impugn heterosexual marriages that are not and will not be procreative-- and that, at a minimum, the arguments against judicial protection for gay marriage lead to the conclusion that there is not a constitutionally-protected right for nonprocreative heterosexual couples to marry.

It seemspossible to me that eventually heterosexual married couples who will not or cannot bear children will get tired of hearing that their marriages are devoid of legal or moral importance, and that this tiredness will affect the politics surrounding gay marriage.

 
[Eugene Volokh, 11/24/2003 01:34:13 PM]
"Man Arrested Over 'Spam Rage'":

Call it spam rage -- a Silicon Valley computer programmer has been arrested for threatening to torture and kill employees of the company he blames for bombarding his computer with Web ads promising to enlarge his penis.

 
[David Bernstein, 11/24/2003 01:02:37 PM]
University of Toronto Cancels a pro-Palestinian Conference: From UT's president:

A recognized student club, Al-Awda, requested the use of a room on campus to hold a public conference Nov. 22 and 23 titled the Toronto Palestinian Solidarity Conference. It came to the University's attention that, in order to attend the conference, all participants were required to agree to a Basis of Unity, as follows:

1. We support the Palestinian right of return. It is non-negotiable. 2. A two state solution is not a viable or acceptable option for the Palestinian people. 3. Israel is a racist apartheid state. 4. Our activism is imbued with an anti-colonial feminist practice. 5. We support the right of the Palestinian people to resist Israeli [sic] and colonialism by any means of their choosing. 6. Actions that we organize at this conference will be developed under the framework of respecting a diversity of tactics.

Requiring attendees to agree to the Basis of Unity excluded persons with dissenting views and was thus in violation of the University's Policy on Recognition of Student Groups, which, among other things, confirms that "the essential value of the University must remain that of preservation of freedom of enquiry and association." It is also important that all recognized campus groups adhere to the requirements of the Ontario Human Rights Code.

The University was prepared to continue the Al-Awda's booking of space if the group agreed to remove the requirement for participants to sign the Basis of Unity. The public conference could have proceeded if the group had been willing to allow freedom of expression, consistent with the University's Statement on Freedom of Speech.

The student group had indicated that the Basis of Unity was required in order to provide a safe environment for discussion.

The University does not accept that open discussion of the issues would have created an unsafe environment and had offered assistance in providing security and in preventing disruption at the event. We did so with the expectation that all members of the University community, when pursuing freedom of expression, would do so in a manner that respects the rights of others.

Three points:
(1) It seems reasonable for a university to condition use of its facilities on the right of all members of the university community to attend relevant events. The most plausible reason the organizers refused to adhere to this condition is that they didn't want anyone to report on what actually is said and goes on at such a conference.
(2) I have not idea what this means: "Our activism is imbued with an anti-colonial feminist practice." I do know, however, that women's rights have advanced far further in Israel than in the Palestinian areas.
(3) Most significant, pay close attention to the platform of this group that all attendees were supposed to agree with: (A) Israel should be wiped out (which is what it means to say that a two-state solution is not viable or acceptable); and (B) murdering innocent civilians is an acceptable tactic to achieve this goal ("We support the right of the Palestinian people to resist Israeli [sic] and colonialism by any means of their choosing.")
UPDATE: Note to Matt:Requiring that a conference on university grounds be open to the whole university community is not the same as "banning" it; it's not even close.

 
[Randy Barnett, 11/24/2003 12:48:30 PM]
Trading Places: In NRO today, Jonah Goldberg has this amusing response to those who claim that "the Right" is winning the culture war and dominating news and public affairs with Fox News, the Wall Street Journal editorial page, etc. How about the old Rawlsian test of fairness behind a veil of ignorance. If "the Left" is now so outgunned with the current division of the pie, let them trade their piece of the pie for that of "the Right":

If conservatives have such a lock on the culture these days, as Al Gore, Al Franken, and others keep insisting, why don't we just switch sides? The Left can have Fox News, the Wall Street Journal op-ed page, the lavish offices of National Review and The Weekly Standard, as well as Sean Hannity's and Rush Limbaugh's airtime. The gangs at the American Enterprise Institute and the Heritage Foundation will clear out their desks, give John Podesta the code to the Xerox machine, and tell Eric Alterman where in the neighborhood to buy the best gyros.

In return, we'd like the keys to the executive bathrooms at ABC, CBS and NBC, please. We'd like the cast of Fox and Friends to take over The Today Show's studios ("and tell Couric to take her Cabbage Patch dolls with her!"). We want Ramesh Ponnuru as the editor of the New York Times and Rich Lowry can have his choice between Time and Newsweek. Matt Labash will get Esquire and let's set up Rick Brookhiser at Rolling Stone (that way they won't have to change their drug coverage). Andrew Sullivan can have The New York Times Magazine. Robert Bork will be the dean of the Yale Law School and the faculty of Hillsdale and Harvard will simply switch places. Cornell West will be airbrushed out of The Matrix and Harvey Mansfield will take his place (though convincing him say anything other than "you call that a haircut?" will be hard). NRO will get the bazillions of dollars spent by the editors of Salon and Slate, and those guys can start paying their authors with chickens and irregular tube socks made in Albania.

In other words, talk to me about how we've won the culture war when Dinesh D'Souza wins a MacArthur Foundation "genius grant" and Maya Angelou has to blog about it because no one at the New York Times will run her pieces.

 
[Randy Barnett, 11/24/2003 12:47:24 PM]
Seconding the Motion: I wish I had something more to add to what David posts just below about the Republican Collapse, but I don't.

 
[David Bernstein, 11/24/2003 12:07:38 PM]
The Republican Collapse: It's really gotten close to the point where the only reason for limited-government types to vote for Republican presidents is that they occasionally appoint judges who believe that the Constitution restrains federal and state regulatory power; Republican-appointed judges even tend to have a broader view of the restraints the First Amendment places on government than do liberal judges. But the spending record of Republicans in the Bush years is just appalling. The latest on this can be found here.

"Compassionate conservatism" seems to have turned out to be a replay of the Nixon strategy of buying off every conceivable interest group that is capable of being bought off by a Republican admnistration, while using social issues and conservative rhetoric to appease the Republican masses. Nixon, at least, had the excuse of governing in an era when liberalism was at its apex, and with the constraints imposed by the other two branches of government, dominated by liberal Democrats. What is George Bush's excuse? And as for Senate and House Republicans, they are living proof of the need for term limits.

 
[Eugene Volokh, 11/24/2003 11:46:38 AM]
Amicus brief: My amicus brief on behalf of Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and the Authors Guild, Inc., in McFarlane v. Twist is being filed today. Here's what the case -- which the Supreme Court is deciding whether to hear -- is about, from our Statement (emphasis added):

Petitioner Todd McFarlane was sued for allegedly violating [hockey player Tony Twist's] right of publicity because petitioner had used [Twist's] name . . . as the name of a fictional character in a comic book. The Missouri Supreme Court rejected [McFarlane's] First Amendment defense, holding that because the use of [Twist's] name "was not a parody or other expressive comment or a fictionalized account of the real Twist,"

the metaphorical reference to Twist, though a literary device, has very little literary value compared to its commercial value. On the record here, the use and identity of Twist's name has become predominantly a ploy to sell comic books and related products rather than an artistic or literary expression, and under these circumstances, free speech must give way to the right of publicity.

I argue that this violates the First Amendment, and that the U.S. Supreme Court should agree to hear the case. Many thanks to my friend and coblogger Erik Jaffe for his editing and guidance on this, as well as for being the attorney of record; he's an experienced Supreme Court lawyer, and he was tremendously helpful.

     The brief is available here. The meat is only about 10 small pages long -- just read the Argument and the Conclusion on pp. 5-14. The Missouri Supreme Court's opinion is here.

     Special bonus for my fellow science fiction fans: How often do you get to read a brief that cites Robert Heinlein (two books), Larry Niven, Jerry Pournelle, and David Gerrold?

 
[Eugene Volokh, 11/24/2003 09:07:03 AM]
Religion and prejudice: OK, one more item from the FIRE report:

More than half of administrators report being aware of prejudice and discrimination by students against religious groups because of the group’s religion. About 4 in 10 public (39%) and private (39%) administrators are aware of “only a little” prejudice and discrimination. Sixteen percent of public and 10% of private college administrators say they are aware of “some” prejudice and discrimination against religious groups. Followed by 1% of public and 2% of private colleges where administrators are aware of “a lot” of prejudice and discrimination.

More than 4 in 10 public (41%) and private (45%) college administrators report they are not aware of any prejudice and discrimination by students against religious groups. . . .

Q44. Overall, how much prejudice and discrimination are you aware of against religious groups by the students because of the groups religion...A lot, some, only a little, or none at all?

Public College Administrators[:] Only a little 39%[;] None at all 41%[;] Don’t know 3%[;] Some 16%[;] A lot 1%

Private College Administrators[:] A lot 2%[;] Some 10%[;] Don’t know 4%[;] None at all 45%[;] Only a little 39%

"Prejudice and discrimination . . . against religious groups by the students because of the group's religion." What exactly is that? If it's people beating the group members up (or even shouting them down at speeches or stealing their newspapers), I'll gladly agree that this is pretty bad. But I suspect "only a little" prejudice and discrimination isn't quite that. It's probably students snickering at what they see (rightly or wrongly) as some group members' folly or self-righteousness or irrationality or evil religious agenda.

     And if that's so, then so what? Religious affiliation (or lack thereof) is, after all, an expression of one's beliefs. Judging someone because of their expressed beliefs, or even discriminating against them in social situations (probably the most common discrimination by students, since most students don't give grades or make employment decisions) is, within bounds, quite proper.

     There may be very good reasons -- both practical and moral -- why we don't want this to translate into refusals to hire, or expulsions from school (especially at government-run schools), or why we would even oppose social ostracism of people for their religious beliefs (at least for most kinds of religious beliefs). And some forms of prejudice are irrational or excessive; if the survey somehow tried to capture only those forms, the results might be more striking, but of course the survey talks about prejudice and discrimination with no limitations. So can we really expect, and should we expect, that everyone completely ignore others' stated religious beliefs in making personal judgments about their likely qualities (which is what total lack of "prejudice" would mean)?

     So I don't quite see why the finding that "More than half of administrators report being aware of prejudice and discrimination by students against religious groups because of the group’s religion" should trouble us. And, more broadly, whatever bad connotation the terms "prejudice" and "discrimination" (especially as to social discrimination) might have as to race, they ought not have the same connotation -- at least without some more specific evidence that we're talking about excessive or unjustified prejudice and discrimination -- when we're talking about religion.

 
[Eugene Volokh, 11/24/2003 08:46:45 AM]
The brig where Padilla and Hamdi are being held: Here's an interesting story about this military prison. Thanks to reader Dan McCall for the pointer.

 
[David Bernstein, 11/24/2003 08:21:55 AM]
Janice Brown and the ABA: Not enough has been said, in my view, about the outrageous "Qualified/Not Qualified" rating given to Justice Janice Rogers Brown by the American Bar Association. That she is well-qualified to be a D.C. Circuit judge based on her credentials is obvious from her biography. Indeed, my understanding is that it's only a recent phenomenon that being a judge on the D.C. Circuit is considered a "higher" position than Justice Brown's current position as a California Supreme Court justice. I doubt Roger Traynor would have considered the D.C. Circuit a step up.

The only plausible non-ideological rationale for Justice Brown's rating is an alleged lack of judicial temperament, shown not from her opinions (she wrote more majority opinions than any other California justice during her tenure) but from her extracurricular speeches.

Let's assume that these speeches are in fact relevant to whether Justice Brown is qualified to be on the D.C. Circuit. Brown has clearly indulged in fiery, occasionally hyperbolic (New Deal as "socialism") rhetoric. But she has done so in the cause of speaking out on behalf of a generally libertarian conception of individual rights. Let's engage in a thought experiment: a Democratic president appoints a liberal African American women, with the same credentials and background (daughter of sharecroppers in the segregated South) as Justice Brown, to the D.C. Circuit. This nominee is known for giving fiery, at times hyperbolic speeches advocating strongly on behalf of the traditional liberal civil rights/affirmative action agenda. Does anyone think that there is the remotest chance that this nominee would get a "Qualified/Not Qualified" rating?

Thus, the ABA's tepid endorsement/non-endorsement of Brown's qualifications is the result of the evaluators' distaste for her ideology, and nothing less. The ABA's rating should be given exactly the weight it deserves, which is none.

UPDATE: For more on the ABA and judicial nominations, see this post by Stuart Buck.

 
[Eugene Volokh, 11/24/2003 07:17:39 AM]
Writers Guild: So how come the Writers Guild of America and the Authors Guild, organizations for professional users of words, have what seems to be a mispunctuation in their names? (I'd have thought it would be the Writers' Guild, or conceivably -- though I wouldn't much like it -- the Writer's Guild, if they want to stress that it's an organization for each individual writer.) Is there some complicated labor union movement background here that I'm missing? Or are they just trying to make sure there's work left for the Proofreaders' Guild?

UPDATE: Some people respond saying that it's just the plural, not the possessive. But that's the question -- should you just have the plural, or the possessive of the plural?

 
[Eugene Volokh, 11/24/2003 06:33:00 AM]
Troubling things the FIRE report does point out: Notwithstanding my criticisms of the FIRE report (see the post a few items above, and the one from Friday), I do think it has uncovered some rather troubling matters. Two examples, though there are others:

1. 19% of the surveyed public university administrators disagreed with the proposition "Students should be allowed to form a club on your campus that argues that homosexual behavior is sinful and can be altered by prayer." (The number is even higher -- 40% -- for private university administrators, but I'm not completely sure quite how to evaluate this, because I take it that some of them might be administrators at seriously religious universities, which might plausibly claim some more right to control religious organizations on campus.)



2. 25% of the surveyed public university administrators disagreed with the proposition "Students should be allowed to form a club on your campus that encourage women to be submissive to men in the home and society, even though administrators actively oppose its formation to ensure a supportive and nurturing campus environment."

Not a shockingly high percentage -- but a sign that groups like FIRE are necessary to make sure that these administrators aren't allowed to impose such an orthodoxy on their students. (Incidentally, just for the usual disclaimer, I do not agree with the positions of either of the two hypothetical groups.)

 
[Tyler Cowen, 11/24/2003 06:32:29 AM]
Betting on movie grosses: Moviemakers have found it increasingly difficult to forecast how well a film will do. Many are now turning to betting markets for better information. The Hollywood Stock Exchange allows people to bet, albeit with play dollars only, on how movies will do. Here is the full story, thanks to Curtis Melvin for the link. We now need to relax anti-gambling laws so that people can bet with real money. This policy change is a no-brainer, even if you don't believe in betting on terrorists. My co-blogger at MarginalRevolution.com, Alex Tabarrok, provides a post on how you can buy into movies in their early stages. Very small investors, however, do not seem to have access to these opportunities. I can imagine a future world where small investors can either buy equity shares in movies, or they can simply make bets in a cash settlement market.

On a related note, music companies track downloads to see which of their products are hot and which are not. Forecasting demand is one of the most difficult issues in cultural markets, where many more products fail than succeed. It is also an area where recent technologies can support big improvements, if only we will deregulate a bit and let them do so.

 
[Eugene Volokh, 11/24/2003 06:30:47 AM]
Developments on the Howard Dean blog / Ted Rall matter -- see the updates to the post.

 
[Tyler Cowen, 11/24/2003 05:44:08 AM]
It's worse than you think: Today's Washington Post details the fiscal excesses of the Republicans. Even I, an ostensibly jaded observer, was shocked to read this story. We all know about the $33 billion for the energy bill, or the $400 billion for the Medicare bill. It is less well-known that Congress is moving to increase veterans' benefits by $22 billion. Or how about peanut subsidies jumping from zero (1998) to $1.5 billion? Dairy subsidies from $318 million (1998) to $2.45 billion? The Agricultural Marketing Service is up from $726 million (1998) to $1.43 billion. The Amtrak budget has doubled to over $1 billion. And so on, and so on, and so on.

The bottom line: government spending this year will total $20,000 per household, a level we have not seen since World War II.

 
[Eugene Volokh, 11/24/2003 04:35:50 AM]
Discrimination against black children by branch of Ohio government: According to the Dayton Daily News,

The state and Hamilton County have been fined $1.8 million by a federal agency for blocking white families from adopting black children between 1995 and 2000.

"Ohio, directly and through its county public children services agency in Hamilton County, discriminated against children and families,’’ Wade Horn, an assistant secretary for the U.S. Department of Health and Human Services, said in a letter to Tom Hayes, director of the state Department of Job and Family Services.

State spokesman Jon Allen said the state will appeal. . . .

A report in October by the federal Office of Civil Rights detailed numerous instances in which caseworkers at Hamilton County’s adoption agency delayed and derailed white parents’ efforts to adopt black children. Investigators found that black children younger than 2 waited an average of 223 days to be adopted, while white children averaged a 145-day wait.

State and county officials acknowledged that mistakes were made, but were disappointed by the fine. . . .

Jollis said the county has fixed the problems and detailed changes in a report sent to the Office of Civil Rights last week. . . .

I'm not sure whether this was part of the general "black children should be adopted by black parents" movement or not, but I suspect (for lack of alternative explanations) that it was -- see here for a story about that school of thought, most prominently promoted by the National Association of Black Social Workers:

In 1991, NABSW reaffirmed its position that "black children belong to black parents," claiming that interracial adoptees not only lose their heritage and become prejudiced against blacks, but also are harmed because their white parents are unable to teach them the skills necessary to survive in a white, racist society. The paper states that even "the most sensitive, loving, and skilled white parent could not avoid doing irreparable harm to an African American child."

Thanks to How Appealing for the pointer to the Dayton article.

Sunday, November 23, 2003

 
[Eugene Volokh, 11/23/2003 09:24:20 PM]
Likely future president of Georgia is a published legal author in the U.S.: I don't know whether to be pleased or alarmed. Mikhail Saakashvili cowrote a newsletter article called "Stage is Set for the Russian Securities Market," published in CIS (Commonwealth of Independent States) Law Notes, Feb. 1995. (It's a newsletter published by a law firm, at which Saakashvili was working at the time.)

     And Eduard Shevardnadze, whom Saakashvili just kicked out (rightly so, according to press accounts) -- what legal articles did he write, at least in the U.S.? Not even a student case note. There you have it.

 
[David Bernstein, 11/23/2003 07:54:47 PM]
Recommended Columnist: One of my favorite columnists is my friend, Stanford Law grad, and Great White North resident Marni Soupcoff, who writes mainly for The American Enterprise online. In fact, I like her writing so much that I asked her to help edit my book. Check out her writings here when you get a chance.

 
[Eugene Volokh, 11/23/2003 06:37:58 PM]
Howard Dean & Ted Rall: From Howard Dean's Blog for America:

Rall: Howard Dean for President

Ted Rall, in his Universal Press Syndicate column today, explains why so many third party voters are coming to Dean:

Howard Dean has the best chance to beat Bush.

Brilliant, aggressive and moneyed... Dr. Dean has a corner on the single most important issue to Americans: health care. His politics are surprisingly centrist... He's got traditional Democratic constituents (he just stole the biggest AFL-CIO union's endorsement away from Gephardt) and fresh new ones (twentysomething bloggers have mailed him $25 million in crisp twenties).

Dean's got lots more going for him, not the least of which is running as an insurgent small-state governor disliked by his own party's top leaders (the ex-governor thing casts him as even more of an outsider). Polls show Dean leading his nearest rival, John Kerry, 33 percent to 19 percent in the crucial New Hampshire primary. Coming out early and hard against the war in Iraq wins him major props with the liberal base and makes him seem ahead-of-the-curve to everyone else. Most importantly, he's his own man. "He doesn't really owe his current standing to any of them...," says Darrel West, a political science professor at Cornell.

But the rubber would really tear up the road at the presidential debates, where Dean's dry, sardonic Long Island wit would devastate the hapless Bush--and charm television viewers. His natural pugnacity could help Dems deal more aggressively than usual with the nasty attack ads they can expect in the campaign ahead. Frankly, the other Democratic contenders don't have what it takes to stand up to Karl Rove's brutal war machine.

Maybe it's premature to endorse Gov. Dean. But right now, given the information we have available, he's the preferred candidate of us Anybody But Bushies.

Help Dean stand up to the "nasty attack ads" that the RNC is launching today by contributing to the bat.

Here's what Anybody But Bushie Ted Rall wrote in his United Press Syndicate column a couple of weeks ago:

WHY WE FIGHT

Iraq From the Other Side

Dear Recruit:

Thank you for joining the Iraqi resistance forces. You have been issued an AK-47 rifle, rocket-propelled grenade launcher and an address where you can pick up supplies of bombs and remote-controlled mines. Please let your cell leader know if you require additional materiel for use against the Americans.

You are joining a broad and diverse coalition dedicated to one principle: Iraq for Iraqis. Our leaders include generals of President Saddam Hussein's secular government as well as fundamentalist Islamists. We are Sunni and Shia, Iraqi and foreign, Arab and Kurdish. Though we differ on what kind of future our country should have after liberation and many of us suffered under Saddam, we are fighting side by side because there is no dignity under the brutal and oppressive jackboot of the U.S. Coalition Provisional Authority or their Vichyite lapdogs on the Governing Council, headed by embezzler Ahmed Chalabi.

Because we destroyed our weapons of mass destruction, we were unable to defend ourselves against the American invasion. This was their plan all along. Now our only option is guerilla warfare: we must kill as many Americans as possible at a minimum risk to ourselves. As the Afghan resistance to the Soviets and the Americans' own revolution against our former colonial masters the British have proven, it will only be a matter of time before the U.S. occupation forces become demoralized. As casualties and expenditures rise, the costs will outweigh the economic and political benefits of occupation. Soon the American public will note that the anticipated five-year price tag of $500 billion, with a probable loss of some 4,000 lives and 10,000 wounded, is not a reasonable price to pay to get our 2.5 million barrels of oil flowing to the West each month. This net increase, of just 0.23 percent of total OPEC (news - web sites) production, will not reduce U.S. gasoline prices. At an average of 35 attacks each day, an hour does not pass without an American soldier coming under fire somewhere in Iraq. Ultimately the American public will pressure their leaders to withdraw their harried troops from our country.

It is inevitable. Our goal is to make that day come sooner rather than later.

It is no easy thing to shoot or blow up young men and women because they wear American uniforms. Indeed, the soldiers are themselves oppressed members of America's vast underclass. Many don't want to be here; joining America's mercenary army is the only way they can afford to attend university. Others, because they are poor and uneducated, do not understand that they are being used as pawns in Dick Cheney's cynical oil war.

Unfortunately, we can't help these innocent U.S. soldiers. They are victims, like ourselves, of the bandits in Washington. Nor can we disabuse them of the propaganda that an occupier isn't always an oppressor. We regret their deaths, but we must continue to kill them until the last one has gone home to America.

In recent months we have opened a second front, against such non-governmental organizations as the United Nations and Red Crescent. A typical response of the Bush junta to these actions was issued by National Security Advisor Condoleeza Rice: "It is unfortunate in the extreme that the terrorists decided to go after innocent aid workers and people who were just trying to help the Iraqi people." Do not listen to her. True, many aid workers are well intentioned. However, their presence under American military occupation tacitly endorses the invasion and subsequent colonization of Iraq. Their efforts to restore "normalcy" deceives weak-willed Iraqi civilians and international observers into the mistaken belief that the Americans are popular here. There can be no normalcy, or peace, until the invader is driven from our land. From the psychological warfare standpoint, the NGOs represent an even more insidious threat to fight for sovereignty than the U.S. army.

In this vein we must also take action against our own Iraqi citizens who choose to collaborate with the enemy. Bush wants to put an "Iraqi face" on the occupation. If we allow the Americans to corrupt our friends and neighbors by turning them into puppet policemen and sellouts, our independence will be lost forever. If someone you know is considering taking a job with the Americans, tell him that he is engaging in treason and encourage him to seek honest work instead. If he refuses, you must kill him as a warning to other weak-minded individuals.

Take to heart this warning of Cuban revolutionary Ché Guevara: "The guerrilla fighter needs full help from the people of the area. This is an indispensable condition. This is clearly seen by considering the case of bandit gangs that operate in a region. They have all the characteristics of a guerrilla army: homogeneity, respect for the leader, valor, knowledge of the ground, and, often, even good understanding of the tactics to be employed. The only thing missing is support of the people; and, inevitably, these gangs are captured and exterminated by the public force." If the Americans are right about us, and we enjoy no popular support, we deserve to be annihilated. Fortunately, the U.S. has adopted Israeli-style retaliatory bombing, cordoning off whole villages and other tactics that are turning civilian fence-sitters to our point of view.

To victory!

     I recognize that Rall is writing this in someone else's voice; with this literary device, an opinion writer may not be endorsing the message that he puts in the character's mouth. On the other hand, given some of Rall's earlier work ("In Iraq, we are the bad guys"; " "[U.S.-trained Iraqi police killed by a bomb on July 5] are not innocent. They are collaborators. Traitors. They had it coming"), this becomes a much less plausible theory.

     So ask yourself: Do you think, given what you've read, that Rall is just dispassionately presenting an insight into the other side's mind? Or does it strike you that Rall is much more sympathetic to the hypothetical author ("we must continue to kill [American soldiers] until the last one has gone home to America") than to the "weak-willed Iraqi civilians" and to our soldiers? And if it's the latter, why is the Dean campaign promoting Rall's support?

     I hope the higher-ups at the campaign just haven't read Rall's column that I cite above, and haven't heard of his general reputation. (I really do hope this: Though I don't want to see Howard Dean elected, I even less want to see that the leaders of the Democratic front-runner's campaign know Rall's stuff and despite that cherish his endorsement -- that would be a very bad thing for America.) In any event, it seems to me that they should repudiate any connection with Rall as soon as possible.

     Thanks to Mike Daley for the pointer.

UPDATE: Here, by the way, is a copy of Ted Rall's infamous cartoon, published less than six months after September 11, mocking widows of those killed in the attack. (Thanks to InstaPundit for the pointer.)

FURTHER UPDATE: Note that I'm quoting the original version of the post from the Dean Web site. As Eye on the Left and reader Jake Ewing point out, the post has been revised; the "Rall:" has been removed from the header, "explains" has been changed to "considers," and the sentences "Maybe it's premature to endorse Gov. Dean. But right now, given the information we have available, he's the preferred candidate of us Anybody But Bushies." have been removed.

     I just wanted to make this clear in case some people note the discrepancy between my quote and the Dean site. I'm not criticizing the Dean people for making the update -- I don't mind people and organizations updating their blog posts when they realize the post is mistaken or doesn't reflect their views; though I do see the argument for noting the updates in the post, I don't think this is mandatory. I would, however, criticize them for not updating them enough: The proper update is a statement that the Dean campaign finds Rall's views and rhetoric repugnant, and doesn't want to be associated with him.

     Note also that the Dean blog seems to have disabled comments for this post. Many of the later comments (about a dozen, as I count them, starting around 8:55 pm) strongly criticized the trumpeting of Rall's endorsement. (STILL FURTHER UPDATE: Reader Gerry Canavan mentions that this might be an automatic post disabling because of the number of comments or lapse of time between comments; I don't know whether that's so, but I thought I'd mention that as a possible theory.)