Saturday, January 03, 2004

 
[Juan Non-Volokh, 1/3/2004 02:49:52 PM]
Will Endangered Species Endanger the GOP? Former Rep. “Pete” McCloskey thinks “Republicans are at risk of becoming an endangered species” because of their position on environmental matters. Calpundit thinks McCloskey has a point. Yet McCloskey’s op-ed is based upon false claims and faulty premises.

McCloskey’s focus is the Endangered Species Act (ESA), a “visionary” statute that passed with hardly any opposition. According to McCloskey, “In the last three decades, the act has done much to protect eagles and other endangered species by protecting their habitats. I'm proud of what the law has accomplished.” Yet the actual thirty-year record of the ESA is one of failure, as I noted here. McCloskey credits the ESA with saving bald eagles and brown pelicans, when most environmental experts concede it was the EPA’s ban on DDT – not the ESA – which saved these and several other bird species. (For more on DDT, see here.)

Other species cited by McCloskey, such as the American alligator, black-footed ferret, and manatee, are also not ESA successes. Manatees remain in trouble; what protection they get comes primarily from the Marine Mammal Protection Act and the creation of marine sanctuaries, not the ESA. It is unlikely the American alligator was ever in trouble, and it was captive breeding for private gain, not federal efforts, which produced population gains. As for the ferret, it was the federal government that endangered the ferret in the first place, and the ESA’s massive land-use regulation was hardly necessary to save it, as environmental analyst Karl Hess Jr.  
[Eugene Volokh, 1/3/2004 01:45:34 PM]
Data junkies: More morbid but cool stuff for us data junkies -- the CDC Years of Potential Life Lost report generator. For breakdowns within the unintentional injury category, select "Injury Deaths" under "Leading Causes of:."

 
[Eugene Volokh, 1/3/2004 12:53:12 PM]
More Nazi comparisons: According to the New York Post,

A Holocaust Studies institute is asking radio talk-show host Dr. Laura Schlessinger to retract her on-air comments yesterday comparing some U.S. day-care centers to child-rearing practices in Nazi Germany.

The pop psychologist, whose syndicated show is broadcast on more than 200 stations, read a letter from a listener who criticized the lack of attention given to children in some American "child development centers" and other day-care facilities.

Schlessinger said, "It sounds like something out of Nazi Germany."

Sounds like an odd analogy to me, but it's hard to tell for sure unless one knows the context. Does anyone know more about what the letter said, and about whether Schlessinger elaborated on her comments?

UPDATE: Reader Shlomo Rubin speculates:

I am no fan of Dr. Laura to say the least, so I am not trying to come to her defense. My best guess is that that she is making a comparison between lack of care children receive in daycare centers and in the Nazis Lebensborn, although it is a strained analogy.

The Nazis kidnapped children in Eastern Europe that they believed were "ethnically pure" and raised them in the Lebensborn, essentially orphanages. Because the Nazis were on the extreme nature side of the nature versus nurture debate, these children did not have receive a lot of attention. Under Nazi ideology, it didn't matter, they had the right genes, and that is what would determine their fate. Research later showed that the lack of care had a terrible effect on these children.

I doubt she would just focus on the lack attention, but also the lack of affection. The type of warm interaction between a parent and young child might have benefits that the interaction with a day care worker might not.

I think it is absurd to make the azi analogy, because most what made the Lebensborn so uniquely appalling was that they kidnapped children. To find instances of children being raised in institutional settings without receiving adequate attention, you do not need to look to Nazi Germany. Unfortunately, orphanages throughout the world are woefully inadequate.

Sounds possible, but I'd still love to hear from anyone who actually heard the show, and can say more about the reader letter or Dr. Laura's full comments.

 
[Eugene Volokh, 1/3/2004 12:49:13 PM]
Bellicose women update:

A Columbus mother grabbed a gun and defended her family against armed robbers. Columbus police say four juveniles with a gun kicked in the door of a home on North Roys Avenue near West Broad Street early this morning. A mother in a bedroom fired on the robbers to defend herself and her two young children. One suspect was hit in the buttocks. He dropped his gun and all four fled.

Less than ten minutes later, police got a call from a home on North Wheatland Avenue on a report of a shooting. Police found the four and determined they were the robbers from Roys Avenue. . . .

All four face charges of aggravated burglary, aggravated robbery, robbery and kidnapping.

No one in the home was hurt during the home invasion.

Nice work. Thanks to Dan Gifford for the pointer.

Friday, January 02, 2004

 
[Eugene Volokh, 1/2/2004 08:08:41 PM]
It's more than just dollars per death: Reader Bob Woolley writes:

You mention that possible "spillover" effects may justify higher per-capita (or per-death) on HIV than other diseases. How such spillovers occur is worth considering.

Although information is hard to quantify, I don't think many experts would challenge an assertion that we have learned as much about how the immune system functions in the last 20 years as in all of human history prior to the early '80s, and that a large percentage of that knowledge has come from studying HIV. (I went to med school from 1985-1989, and was sort of caught in the midst of the explosion, with things in the last year's textbooks now known to be false.)

It is a general truism in medicine that we learn more about the normal physiology of a cell, tissue, organ, or system by investigating what dysfunction it incurs when diseased, than we do by studying its healthy operation. As perhaps the most famous example, we only learned what areas of the brain perform certain functions by studying people who, because of stroke or trauma, had specific brain loci destroyed.

HIV cripples the immune system in profound ways not previously known, and its characteristic pathophysiology has led to a vast wealth of knowledge about the interactions of different kinds of immune cells, many of which weren't even known to exist before. (E.g., all lymphocytes look pretty much the same under a microscope. But when you find that HIV kills some and not others, you discover biological characteristics of the cells that distinguish one subtype from another.)

So another way to describe a potential justification for the spending is that a new disease opens much broader frontiers for enlarging our understanding of basic science than do diseases that have been known for a long time.

It is just impossible to predict meaningfully the spillover effect from increasing our understanding of norma immune function. But we know from countless previous examples that the only way to get breakthroughs in medicine is by expanding our database of basic science. Sure, some calculated efforts to make a particular breakthrough pay off exactly as planned, just as some baseball players can hit a home run a substantial fraction of the time they're at bat. But winning baseball teams tend to rely more on the cumulative effects of lots of small plays--singles, then letting the runners advance. And so it is in science: we have to publish lots and lots and lots of boring papers in esoteric journals before somebody combines certain facts and ideas in a novel way to make a breakthrough.

One can well imagine that the microbiologists and veterinary pathologists who studied an obscure respiratory virus in desert rodents, with CDC funding, would have been nominated for William Proxmire's Golden Fleece award. But when, several years back, hantavirus suddenly jumped to humans, it looked like a good investment not to have to start from scratch under the extreme time pressure of people in hospital ICUs.

All that said, it may be that we're spending more on HIV than is warranted, not just in the socioeconomic sense, but in the sense that all of the good research is funded, and there's still money left over, so it's going to work of much lower quality. I don't pretend to know that, though I've heard people who should know say that that is, indeed, happening. Nevertheless, just from a general understanding of how science advances, exploring a new disease is almost always more likely to be beneficial in the long run than the same amount spent on ones already well known.

And in the case of something like HIV, that would likely be true even if none of the money went to deliberately devising cures for the disease.

Again, I stress that this doesn't mean that the NIH is spending the right amount on HIV research, either compared to cancer, heart disease, or diabetes research, or in absolute terms. But it does show that dollars per death from this particular disease is a rather crude way of measuring these things -- and that there are other possible explanations for high spending than "the American government cares more about homosexuals and IV drug addicts than it does about everyone else."

 
[Eugene Volokh, 1/2/2004 08:03:56 PM]
AIDS cases: I got several messages suggesting that heterosexual AIDS transmission was virtually not a problem at all. I realize that the estimates of heterosexual AIDS transmission are just estimates, and that there's a great deal of controversy about the issue. Still, according to this CDC document, here's the breakdown for exposure categories for new AIDS cases in 2000 -- presumably new HIV cases would be considerably higher:

Male homosexual contact: 15,749
Intravenous drug use: 10,580
Both male homosexual conduct and intravenous drug use: 1,799
Heterosexual contact: 10,611
Other: 674
Total: 39,412

(See here for somewhat different results, though ones that are in the same ballpark.) Undoubtedly, the risk of AIDS for non-drug-using heterosexuals is much lower than for drug users or male homosexuals; and in recent years, the risk has largely held steady (see here). Nonetheless, it's not something to sneeze at; and with contagious diseases, as I mentioned, there's always the fear that in coming years -- with changing behavior patterns, increases in the total pool of infected people, or mutations -- the situation will get worse.

 
[Eugene Volokh, 1/2/2004 06:03:25 PM]
Our readers come through: Many thanks to readers Sally Newton, Adelia Taranta Recchia, Mark Connell, and Francisco Araujo da Costa for confirming the translation of the Brazilian judge's comments. Crazy as it may sound, he apparently did say that the U.S. requirement that visitors from foreign countries be fingerprinted and photographed is worthy of "the worst horrors committed by the Nazis."

 
[Eugene Volokh, 1/2/2004 03:51:09 PM]
Calling all Lusophones: Reader R.J. Horn points to a Portuguese-language version of the Brazilian judge's comments about the U.S. requirement that visitors from various countries, including Brazil, be fingerprinted and photographed. Reuters translated the comments as "I consider the act absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis," but Horn isn't sure that the translation is accurate.

     If any readers know Portuguese, and can translate the phrase -- "Eu considero o ato absolutamente brutal, ameaça aos direitos humanos, uma violação à dignidade humana, xenofóbico e comparável aos piores horrores cometidos pelos nazistas" -- for me, I'd be much obliged. Please e-mail me at volokh at law.ucla.edu.

UPDATE: R.J. Horn follows up with this:

The original Portuguese may be more in question. With this search you find a variety of quotations.

The one here appears to be the most authoritative. It differs somewhat from Reuters. I don't know why, but Google does not list it. I found it from http://www.distraidos.blogger.com.br/

If someone can also translate the quote at the second link for me, that would be great -- it's

Consigno que considero o ato em si [medidas dos EUA] absolutamente brutal, atentatório aos direitos humanos, violador da dignidade humana, xenófobo e digno dos piores horrores patrocinados pelos nazistas.

FURTHER UPDATE: See the post immediately above this one for the answer.

 
[Eugene Volokh, 1/2/2004 01:36:37 PM]
Law enforcement and intelligence gathering: Stewart Baker, former general counsel of the National Security Agency, has a thoughtful and interesting criticism (in Slate) of attempts to separate antiterrorism intelligence gathering and law enforcement. I'm not knowledgeable enough in the enforcement realities here to have an independent opinion, but I know Stewart and much respect his judgment. Definitely worth reading.

 
[Eugene Volokh, 1/2/2004 12:29:37 PM]
Gay men and drug addicts are the government's darlings! Yup, that's Clayton Cramer's conclusion, based on National Institutes for Health spending per death, which his data shows is over 10 times more for HIV/AIDS than for diabetes, cancer, and other diseases. His conclusion:

[B]ecause AIDS disproportionately affects homosexual men, the U.S. government spends an enormous amount of money doing research on this. It is hard to take seriously the claim that America is a "homophobic" nation. This insane level of research funding on HIV/AIDS, when we know how to prevent it, demonstrates that the American government cares more about homosexuals and IV drug addicts than it does about everyone else.

     Wow -- "the American government cares more about homosexuals and IV drug addicts than it does about everyone else"! Even though homosexuals and IV drug addicts are only a tiny share of all voters. Even though lots of voters dislike IV drug addicts, and quite a few still dislike homosexuals. Pretty odd, no?

     This is the sort of conclusion that makes one wonder: Might there be some other factor involved here? Lots of possible factors come to mind, but here's one that's pretty clear -- communicable diseases such as AIDS pose a far greater potential danger than noncommunicable ones, because there's a chance that they might spread much more broadly, as they in fact have in many other countries. (In some African countries, as I understand it, over 20% of the population is infected with HIV.) So far, it looks like we've got AIDS mostly under control in the U.S. But what if it breaks out further into the straight population, as it has in other countries? What if straights persist in engaging in unsafe sex (as many do) and having many sexual partners (as many do), and public health edu ation efforts mostly fail (as many do)? What if the virus mutates into something considerably more communicable, or something that can't easily be detected and screened out of the blood supply with current tests?

     These are not questions that we generally ask about, say, diabetes or heart disease. These are tragic illnesses, but their risk seems quite bounded. AIDS may kill fewer people in the U.S. now, but there seems to be some chance that at some point in the future it may kill many more. That, I think, is a big part of why people are more scared of AIDS than the death rates seem to suggest -- and rightly so. I'm personally vastly more at risk from heart disease and cancer than I am from AIDS; but I can't say that for sure about little two-month-old Benjamin, since I have no idea what the epidemiological picture would be like when he's in his late teens and early twenties. I'd like to see all these diseases cured. But my concern about them is definitely not directly proportional to the number of deaths in 2001 from them.

     Now naturally there are lots of plausible debates about what the proper funding levels for AIDS, cancer, diabetes, and other diseases should be. Such debates should presumably look at years of life lost, at total research spending (not just NIH), at sickness as well as death, at downstream risk, at possible spillover benefits (Is research into one virus likely to yield benefits as to other viruses? Is research into one form of cancer likely to yield benefits as to other forms of cancer?) and many other factors. It may well be that, after we consider this, we may conclude that too much is being spent on AIDS. But this is a far cry from concluding -- contrary to lots of other evidence -- that "the American government cares more about homosexuals and IV drug addicts than it does about everyone else."

UPDATE: Clayton Cramer responds, in ways that I find quite unpersuasive. One of his points:Are there any other government programs that disproportionately benefit just a tiny share of the voters? Sure. Dairy farmers. Steel makers and their employees (until quite recently). We even have a specific term to refer to these groups: "special interests." I am utterly amazed that Professor Volokh doesn't understand how a tiny faction, by being well-organized, can get the government to do their bidding, even against the interests of the general public. Or is it that hard to understand that homosexuals are a special interest group? (Obviously, IV drug abusers don't have much influence.)

     This, though, is a different point from the one that I was criticizing. Cramer's original claim was that "the American government cares more about homosexuals and IV drug addicts than it does about everyone else." His new argument is that the American government is more influenced by homosexuals because they're better organized, which is not the same as "cares more about" them; and he now seems to withdraw the claim about IV drug abusers.

     But more importantly, as I understand it, farmers and steelmakers have substantial power not just because they're "well-organized," but because they -- and their business partners, which have a stake in the farmers' and steelmakers' prosperity -- are important blocs in many states, states that have many Senators. I am quite skeptical that this is true of homosexuals.

     Of course, there are many voters who aren't homosexual themselves, or in danger of getting AIDS, who might sympathize with the plight of AIDS sufferers (both homosexual and not). These voters may theoretically become an important bloc, though I highly doubt that in practice many of them actually cast their votes based on this issue. But even if that were so, then that would hardly be "a tiny faction, by being well-organized, . . . get[ting] the government to do their bidding, even against the interests of t e general public." Rather, it would be a substantial chunk of the general public pushing for those policies that they think (rightly or wrongly) are fair and compassionate.

     Finally, I am perfectly happy seeing homosexuals as a special interest group, just as Christian conservatives may be a special interest group, cancer sufferers may be a special interest group, or the disabled may be a special interest group. I'm just skeptical about claims that "the American government cares more about homosexuals and IV drug addicts than it does about everyone else."

UPDATE 2: Clayton Cramer calls my update "even more bizarre." I leave it to readers to decide which is more bizarre -- Cramer's theory that "the American government cares more about homosexuals and IV drug addicts than it does about everyone else," or my skepticism of that theory.

 
[Eugene Volokh, 1/2/2004 11:23:52 AM]
Sex with under-16-year-olds in South Carolina -- correction: It turns out that I was wrong in my reading of 1920s South Carolina law: Though statutory rape was defined as sex with under-14-year-olds (by the state Constitution itself, it turns out), there was a separate statute, enacted in 1921, that defined sex with under-16-year-olds as the separate crime of unlawful carnal knowledge. Strom Thurmond's daugher was born when her mother was 16.

     If Thurmond had sex with the mother when she was under 16 (not certain, since he might have had sex with her when she was just over 16, so that the child was born while she was still 16), then that would have indeed been criminal -- not technically statutory rape in legal terms under South Carolina law, but statutory rape under the common lay definition of the term. I was therefore mostly wrong to berate the Palm Beach Post ombudsman for describing Thurmond's behavior as "apparent statutory rape."

     It would have been better, I think, if the ombudsman's column had flagged the possibility that Thurmond's conduct wasn't statutory rape because of the uncertainty about exactly when he had sex with the maid. But it seems quite likely that the ombudsman was right -- and it's certain that my claim that "the age of consent in South Carolina until recently was 14" was wrong. I apologize to my readers, and to the ombudsman (I did the latter in an e-mail).

 
[Eugene Volokh, 1/2/2004 09:28:36 AM]
"Trouble threshold": [UPDATE: Small correction here] (Note: This post is rated S, for "Indirectly Quotes Studies That the Author Hasn't Personally Read"; proceed at your own risk.)

     I've been reading Abigail Thernstrom's & Stephan Thernstrom's fascinating "No Excuses: Closing the Racial Gap in Learning." Two things have particularly struck me so far. First is an item that I had heard before -- black and Hispanic high school graduates tend to have test scores similar to those of Asian and white 8th-graders, a result that shows what an awful racial gap there really is.

     Second is one problem that needs to be fixed if one is to do anything about the first, or for that matter if one is to raise black and Hispanic student achievement even without regard to comparisons with Asians and whites. It's certainly not sufficient to fix this problem -- but it is necessary. Rather than quoting the book directly, I'll quote a column by leading black columnist Clarence Page, though I can attest that the column fairly captures the point in the Thernstroms' book (emphasis added):

One of the most disturbing disappointments in the years since the 1960s civil rights revolution is that the black-white academic performance gap (as much as four years by the time they graduate high school) persists, even among children of the new black middle class.

For that reason, whether I agree with everything the Thernstroms have to say or not ([a]nd I have disagreed with them regarding the merits of affirmative action), I appreciate their contribution to an issue that has, by no means, been over-discussed. In act, if we could solve the racial academic achievement gap, our need for affirmative action would evaporate with it.

Yet, whites are not the top performing group. As the Thernstroms point out, the gap between white and Asian-American student performance is actually wider than the gap between blacks and whites, with Hispanics performing about as poorly as blacks.

Among the most intriguing possible reasons for this disparity is an intriguing group difference in the way students measure their family's "trouble threshold," according to one study that the Thernstroms cite. The "trouble threshold" is the lowest grade that students think they can receive before their parents go volcanic with anger and start clamping down on TV time, etc. In the survey by Laurence Steinberg, a Temple University social scientist, published in his 1996 book, "Beyond the Classroom," most of the black and Hispanic students surveyed said they could avoid trouble at home as long as their grades stayed above C-minus. [UPDATE: This turns out to be a minor error on Page's part; the correct summary of the study is "stayed at C-minus or above."]

Most of the whites, by contrast, said their parents would give them a hard time if their children came home with anything less than a B-minus.

By contrast, most of the Asian students, whether immigrant or native-born, said that their parents would be upset if they brought home anything less than an A-minus.

     Pretty shocking, and, I suspect, extremely important. And it's also pretty foundational: For instance, while part of the achievement gap may flow from institutional problems with schools that teach black and Hispanic students, it's very hard to fix those institutional problems unless the parents of children in those schools start demanding much more. (I realize that the grade-based trouble threshold is only a rough approximation of attitudes, and not always that relevant, given how inflated some grades have become; but I suspect that it represents a broader syndrome, which is also reflected in attitudes about scores on uninflated standardized tests, and about other academic achievements.)

     Oh, and maybe it's about time that white parents raised their trouble threshold, too.

 
[Juan Non-Volokh, 1/2/2004 06:29:27 AM]
"It could be embarrassing but not illegal": A story in today's Washington Post reports "legal experts" suggest the Plame leak may not have been illegal after all because the leaker may not have known about Plame's undercover status. "The fact that she was undercover is a classified fact, so it would not be unusual for people to know that she was agency but not know she was undercover," says Victoria Toensing, former chief counsel to the Senate Select Committee on Intelligence. As some in the blogosphere have noted, this is one possible reason for the Ashcroft recusal, but we won't know for sure until the investigation is concluded. It also might explain Joseph Wilson's comments in the article: "The question is whether the president is going to accept having people on his staff who have engaged in behavior which has to be inconsistent with his own promise to change the tone in Washington. . . . Just because it isn't criminal doesn't make it ethically acceptable."

I think this story underscores that we know much less about the source of the Plame leak, its motivation, and whether the leak was illegal than those who regularly comment on the matter like to pretend. It might have been an illegal effort to intimidate and exact retribution. It might also have been catty Washington chatter designed to undermine Wilson's credibility, or something else entirely. At the moment, I am satisfied that there is an investigation, and expect that the leaker(s) will be prosecuted if significant illegal acts are uncovered. If not, there will be ample opportunity to lambaste the administration for it.

 
[David Bernstein, 1/2/2004 05:11:08 AM]
Strange Antiterrorism Policy: If the U.S. did indeed have solid information that terrorists were planning to board Air France flights to the U.S., wouldn't it have more sense to keep the flights officially scheduled and get France to arrest the terrorists when they showed up at the airport, rather than make a public announcement that the flights were canceled due to terrorism concerns and ensure that the terrorists would not show up?
UPDATE: Several readers have written to point out that the facts are more ambiguous than my understanding allowed, and it appears that it might well have been the French, and not the U.S. government, who leaked information regarding the flights in question. If so, whether it was official French sources or rogue elements within France who did so also is unclear. For further analysis, see here. I hope some major media outlets are trying to get to the bottom of this story.

 
[Eugene Volokh, 1/2/2004 12:13:22 AM]
More apropos Brazil and the Nazis: Wednesday I complained about a Brazilian judge who required that U.S. citizens entering Brazil be photographed and fingerprinted, in retaliation for the U.S. government's similar requirement for Brazilians. The judge had this to say about the U.S. rule:

"I consider the act absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis," said Federal Judge Julier Sebastiao da Silva in the court order released on Tuesday.

It struck me that the Nazis were known for actions that were just a bit harsher than requiring foreign visitors to get photographed and fingerprinted.

     But reader David Rosenberg points out something else, which I unaccountably missed: Under the Brazilian judge's own theory, he's acting as badly as the Nazis. After all, if the U.S. requirement that Brazilians be photographed and fingerprinted is "worthy of the worst horrors committed by the Nazis," then presumably the same is true of the Brazilian judge's requirement that Americans be photographed and fingerprinted, no?

     Of course, sometimes an action changes character when it's done for retaliatory purposes. Some argue that this is so, for instance, of trade barriers: Imposing protectionist tariffs is generally bad, the theory goes, but it's fine when you're doing it solely as a means to get the other country to drop its tariff. But even if this is so, surely it doesn't extend to tactics that are "worthy of the worst horrors committed by the Nazis," no?

Thursday, January 01, 2004

 
[Eugene Volokh, 1/1/2004 10:21:23 PM]
Puns in titles rarely work, but I really liked this one.

 
[Jacob Levy, 1/1/2004 09:14:24 AM]
Gone missing? If I'm not around the blogosphere or my office for the next few days, it'll be because I'm at the American Society for Political and Legal Philosophy meeting and the AALS in Atlanta.

If, however, I don't appear in Atlanta either, I suggest that the authorities look long and hard at that Drezner fellow down the hall. The act of being both himself and Andrew Sullivan appears to be destabilizing him...

Wednesday, December 31, 2003

 
[Jacob Levy, 12/31/2003 07:48:36 AM]
I'm more than a little disturbed... that five different people have e-mailed this story to me with expressions of concern for my well-being. My office is bad, but not that bad. At least, not at the moment...

 
[Eugene Volokh, 12/31/2003 06:31:59 AM]
Oh, that's what the Nazis did that was so bad: Reader Christopher Nugent reports:

Subject: overblown Nazi analogy #1,398,293

CNN reports that a Brazilian judge is angry that the US is requiring that Brazilians (and nationals of other countries requiring a visa to enter the US) visiting the US be photographed and fingerprinted. In response, he is requiring the same of US citizens entering Brazil. He also made the following statement about the US regulations:

"I consider the act absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis," said Federal Judge Julier Sebastiao da Silva in the court order released on Tuesday."

Kind of reminds one of the Simpsons episode in which Homer was declared "worse than Hitler" for smoking in the DMV.

 
[Tyler Cowen, 12/31/2003 03:08:16 AM]
Some nice photographs: I have promised not to blog from my honeymoon, but here are the ten best astronomical images of the year, courtesy of geekpress.com

Tuesday, December 30, 2003

 
[Eugene Volokh, 12/30/2003 02:38:23 PM]
Unsound criticism of the Ford Foundation: A FrontPageMagazine.com column makes various complaints about Islam-related projects funded by the Ford Foundation. Here's the first paragraph:

To most Americans, it may seem unlikely that the U.S. Constitution could -- or should -- ever be revised to conform to strict Islamic law. But an educational program funded by the Ford Foundation has explored that very possibility, challenging our right to unfettered freedom of speech. The program, administered by the woefully misnamed Constitutional Rights Foundation, asks students to ponder how the Constitution could be amended or otherwise interpreted to prohibit blasphemy against Allah. . . .

     Here's a link to the relevant Ford Foundation page (the FrontPageMagazine article, to its credit, provided the link). As I read it, the page describes the history of blasphemy laws and blasphemy prosecutions, including the Rushdie prosecution; it seems to me to generally criticize those laws, though it explains that they've been more prominent in American history than some might believe. It then suggests the following classroom activity:

A C T I V I T Y

Blasphemy vs. Freedom of Expression

Imagine that you are advisors to a U.S. senator. The following constitutional amendment has been proposed:

The First Amendment shall not be interpreted to protect blasphemous speech. States shall be free to enact anti-blasphemy laws as long as they prohibit offensive speech against all religions.

The senator has asked you to evaluate this proposed amendment.

1. Form small groups. Each group will role play advisors to a U.S. senator.

2. Each group should analyze the proposed amendment by answering these questions:

a.What is the g al of the amendment?

b.What are the amendment's advantages? (What are its benefits? Will it achieve its goal? Will it achieve the goal efficiently? Is it inexpensive? Does it protect people from harm? Does it ensure their liberties?)

c. What are the amendment's disadvantages? (What are its costs? Is it inefficient? Does it cause harm? Does it intrude on people's liberties? Does it have any potential negative consequences?)

d. Weighing the amendment's advantages and disadvantages, do you recommend that the senator support or oppose it? Why?

     What in heaven's name is wrong with this? It seems to be a perfectly sound educational technique: Rather than just telling students "blasphemy laws bad, attacks on Salman Rushdie bad," it asks them to thoughtfully discuss reasons why some might support blasphemy laws (as many Christians have in the American past, and as I've heard a few support even today), and why others might oppose them.

     Sure, this unit "explores [the] possibility" of anti-blasphemy laws (though not limited to blasphemy against Islam, as the first paragraph of the FrontPageMagazine column seems to suggest). But what's wrong with that? It seems to me that the best way to teach students to think about whether something is bad or good is precisely by "explor[ing] that very possibility." Here, by the way, is a problem that I wrote for my First Amendment textbook:

a. Problem: Murder Advocacy Exception

Consider the following proposed free speech exception: “Speech that advocates or defends the propriety of unlawful killing shall not be constitutionally protected.” Identify the kinds of speech that you think this exception will definitely cover and the kinds that you think it might cover, depending on how it’s interpreted.

Then, armed with this sense of the exception’s scope, go through each of the genres of policy argument discussed below, and give an argume t from that genre for or against this exception, and a matching counterargument.

I didn't include the problem because I thought the exception would be a good idea. I actually think the exception would be a bad idea; but I thought that the best way to get students to understand free speech arguments is by getting them to consider the proposal, and to think it through on their own. I would do the same for high school students, too. Why shouldn't I? Why shouldn't the Ford Foundation?

     I can't speak to the column's other charges, which largely focus on the claim that Ford Foundation-funded material provide a "whitewashed history of Islamic law"; that's too far outside my area of expertise. But the unjustified criticism of the CRF blasphemy materials doesn't give me great confidence in the quality of the other criticisms.

 
[David Bernstein, 12/30/2003 01:46:26 PM]
TSA: I interrupt my blogging break to note my annoyance with my experience yesterday with the Transportation Security Administration. Yesterday, in the San Juan airport, there was only one line open for coach passengers (out of two available) at the Continental gate at 7:30 a.m., even though a full flight was leaving at 8:00 a.m. Meanwhile, six--count 'em, six--TSA employees were huddled around a desk, chatting and otherwise doing absolutely nothing. Another two employees were sitting on their duffs on chairs, also doing nothing, though they were apparently stationed where they were stationed for a reason. Still, eight employees doing nothing, compared with the four employees operating the coach passenger line (which was moving very slowly due to what seemed to be understaffing) and another three employees operating a first-class/employees line hardly seemed like an efficient operation, almost like a typical government road construction site. To increase my annoyance, it occurred to me that the TSA employees, though living in relatively poor Puerto Rico, probably (due to stupid federal employment rules) get paid the same as their counterparts in New York and DC, yet don't pay federal income taxes. UPDATE: I should have remembered that NYC and DC federal workers get meager "locality pay", so DC workers get paid about 3% more than their counterparts in places like Puerto Rico.

 
[Eugene Volokh, 12/30/2003 01:01:56 PM]
Rohan, "horsey Vikings," and Sarmatians: Impearls draws the connection.

UPDATE: Steve Bainbridge disagrees. A blog debate about Rohan and the Sarmatians! Really kind of cool, if you think about it, in a twisted intellectual sort of way (some say geeky, but I view "geek" as a compliment).

 
[Eugene Volokh, 12/30/2003 01:00:02 PM]
Disasters and politics: InstaPundit discusses the possibility that Iranians might be getting very upset at their government for not doing more to prevent massive carnage from earthquakes. I'm not sure just how likely this is, but as I recall the Chernobyl accident has been credited in playing a large role in bringing about the fall of Soviet power. It wouldn't have in the Stalin years, or perhaps even in the Brezhnev years; but in an environment where some dissent and public debate was tolerated, as there was under Gorbachev, the disaster supposedly led to many more calls for government accountability. Perhaps the same will happen in Iran.

     (Obviously, the earthquake is a natural disaster and Chernobyl was man-made, but the failure to plan for the earthquake was something for which people, not natural forces, bear responsibility. To quote one item passed along by InstaPundit, "The report in this paper from Teheran yesterday was revealing. It was one thing for the old, mud-walled citadel to fall down, but why the new hospitals?")

 
[Jacob Levy, 12/30/2003 11:27:37 AM]
Catching up: While I was away from blogging I wasn't away from the newspaper, and so had the brief-lived enjoyment of seeing Michael Oakeshott mentioned in the headline of an NYT op-ed. And then I read the piece.

I don't agree with every jot and tittle of Mark Kleiman's response, but I don't differ from it enough to write a separate post. Go read his. I'll add just two things. One is that (for those readers who don't know) Mark's association of Oakeshott with Hobbes is quite apposite, since Oakeshott did a ghreat deal of work on Hobbes and felt himself to be intellectually close to (his version of) the latter. The second is: part of my annoyance comes from the fact that so many people who don't know Oakeshott's work will now know only Brooks' truncated version.

Like Brooks, I support the war; admire Oakeshott; and recognize the tension between those two positions. But the attempt to gloss postwar policy as an Oakeshottian triumph, the attemnpt to synthesize the contradictions, just doesn't work.

 
[Jacob Levy, 12/30/2003 11:05:31 AM]
Revolutionary: This bizarre piece at NRO by Michael Knox Beran is misleading in any number of ways. It places an inordinate emphasis on the editor-written headline of a review essay in the NYT Book Review of recent books about the founding and slavery. It manages to characterize both those who interpret the founding as civic-republican and those who interpret it as liberal-individualist as soi-disant Marxists; it creates the impression that generations of historians have simply marched in the footsteps of Charles Beard and Richard Hofstadter-- when the reality is something closer to "wholesale repudiation," or at the most "engagement that has led to transcending them."

If one read only the Beran essay and not the review itself, one would think that the review simply showered praise on the books in question for turning away from Great Founder history and toward the examination of slavery. In fact, the review includes the following:

But other times, Vidal's history reads as if it had been written by Dave Barry....Perhaps the best we can say of Vidal with this book is what Franklin famously said of Adams: ''He means well for his country, is always an honest man, often a wise one, but sometimes and in some things absolutely out of his senses.'... Wills ignores all these differing points of view by both contemporaries and later scholars, and simply accepts the three-fifths clause as the principal source of the slave power that made it possible for Jefferson to play a role as a protector and extender of the slave system....But ultimately Wills's argument seems too clever by half. Its central problem is that Jeffersonian Republicanism transcended its electoral basis in the slaveholding states. Wills refuses to recognize that Jeffersonian principles were not simply Souther principles, essentially because his spokesman, Pickering, didn't recognize this point either....Endless Republican invocations of equal rights and the power of common people steadily eroded the authority of traditional Northern elites and eventually destroyed the Federalist party. In the end, as Lincoln pointed out, it was these same Jeffersonian ideas that also undid the slave power.

Moreover, Beran never notes in his essay that he wrote one of the books under review. The review is by no means unkind to Beran ["an extraordinarily imaginative account ...Beran's prose is lush and lyrical, and he demonstrates a remarkable degree of learning, especially of the ancient rituals of the classical past"] , but it does suggest that "in the end his rich imagination repeatedly asks of the evidence more than it can bear... Such exaggerations tend to undermine one's confidence in the book's otherwise imaginative suggestiveness." This mixed judgment appears to have set Beran's temper aflame. Writing responses to reviews of one's own books is a fine old tradition, of course, sometimes generating illumination and often generating entertaining vitriol. But it is customary to at least mention that one is commenting on a review of one's own book. [I know that some people are going to say by e-mail: "But he linked to the review! Readers could see for themselves!" Well, yes, but. Links are a marvelous thing, in that they do allow readers to check sources for themselves. They are not a substitute for fully honest writing in one's own piece."

Perhaps oddest of all, it consistently attributes the review simply to the Times; book reviews are among the forms in which that is not customary, and for good reason. One ordinarily talks about the author of the review, not the venue in which it appeared. But naming the author-- Pulitzer Prize-winning historian Gordon S. Wood-- would have made many of the claims seem preposterous, or at least entirely unrelated to the piece that ostensibly rompted the column.

According to the historical fable that gained credence in the late Sixties and early Seventies, once upon a time Americans came together to create a Republic of Virtue. Here every man, eschewing the pursuit of private interest, would devote himself to the common weal. But then the haughty Federalist princes marched in and spoiled the fun. Sensing a threat both to their property and their prerogative, the high-born gentlemen put an end to the little experiment in selfless utopianism. The Federalists who gathered at Philadelphia in 1787 to draft a new charter for the United States not only managed to scrap the good old Articles of Confederation (which, we are assured, really weren’t so bad), they imposed on the nation a draconian Constitution that forever enshrined the pursuit of private interest (in part by artfully balancing one interest against another, the thesis advanced by Madison in his tenth Federalist paper). The Federalists, in other words, sold the Republic of Virtue short. What was worse, they had the temerity to invoke "We the People" in justifying their coup d’etat.

In any narrative about the turn in historiography of the Founding in the 60s and 70s, Wood must be understood as one of the major figures-- perhaps a figure second in importance only to Bernard Bailyn. And Beran's caricature bears a faint enough resemblance to the truth that we can be sure it is the Bailyn-Wood-Pocock turn to the study of civic republicanism in the Founding that he is talking about. But he makes it sound as though these historians turn into Charles Beard when discussing the shift between the Declaration and the Constitution, and that their tale is one of a fall from civic grace. Some non-historians (including some political scientists and political theorists) have tried to use the new history for that kind of fable; but it is nothing like what the historians actually say. The idea that Wood-- prominently featured in PBS celebrations of the Founding-- is fairly repr sented by this:

For a certain kind of academic historian or debunking journalist nothing could be more insupportable than this notion of the Great Man, the Heroic Founder. What, the outraged professor or muckraking editorial writer wonders, has gone wrong? How, in so up-to-date an age as our own, could some very dead white males manage to be so...popular?

is beyond absurd; it's either malicious or dumb. And the fall from civic grace into mean anti-democratic Federalist ruling-class-interest capitalist acquisitiveness is an odd story to attribute to the author of The Radicalism of the American Revolution. (Throughout, "the Revolution" refers not just to the War of Independence but to the social transformations that, according to the book, did not finish running their course until the early decades of the 1800s.)

Of course, there have been many historians-- Progressive or neo-Progressive historians, as they have been called-- who have sought, as Hannah Arendt put it, 'to interpret the American Revolution in the light of the French Revolution,' and to look for the same kinds of internal violence, class conflict, and social deprivation that presumably lay behind the French Revolution and other modern revolutions...But, it has been correctly pointed out, despite an extraordinary amount of research and writing during a good part of this century, the purposes of the Progressive and neo-Progressive historians... 'have not been fulfilled'... because the social conditions that are generically supposed to lie behind all revolutions-- poverty and economic deprivation-- were not present in colonial America. (3-4)

Far from remaining monarchical, hierarchy-ridden subjects on the margins of civilization, Americans had become, almost overnight, the most liberal, the most democratic, the most commerically minded, and the most modern people in the world... It was the Revolution, more than any o her single event, that made America into the most liberal, democratic, and modern nation in the world. (6-7)

To focus, as we are today apt to do, on what the Revolution did not accomplish-- highlighting and lamenting its failure to abolish slavery and change fundamnetally the lot of women-- is to miss the great significance of what it did accomplish; indeed, the Revolution made possible the anti-slavery and women's rights movements of the nineteenth century... (7)

Most important, it made the interests and prosperity of ordinary people-- their pursuits of happiness-- the goal of society and government. The Revolution did not merely create a political and legal environment conducive to economic expansion; it also released powerful popular entrepreneurial and commerical energies and that few realized existed and transformed the economic landscape of the country. (8)

In short, the turn to commerce and to the interests of ordinary people were of a piece-- just the opposite of the view Beran attributes to Wood's group of historians. The Revolution was not interrupted by a counterrevolutionary artistocratic constitution; its social and economic transofrmations continued for decades. Slavery is not the only morally important fact about the Revolution. And American society became liberal, democratic, and commercial as part of the same process, not as parts of opposing tendencies and counter-tendencies.

According to Beran, Wood and those like him "are doing their best to tarnish America’s virtues." Very, very strange. At the very least, I think NRO should insist on a disclaimer that the review being responded to is in part a review of Beran's own book. Better still, if Beran wants to rage against what he sees as an excessive emphasis studying slavery, he should just do that, and not try to link it to Progressive historians, Marxists, anti-American culture warriors, and Wood's group of historians of the Founding-- much less trying to run all those grou s together.

 
[Randy Barnett, 12/30/2003 08:01:17 AM]
Ripples of Battle: I have read about a third of Victor Davis Hanson's newest book, Ripples of Battle, and can highly recommend it. It is a sequel of sorts to Culture and Carnage, which I previously touted, this time discussing the implications for modern warfare and society of the battles of Okinawa, Shiloh and Delium. (I am now about half-way through Shiloh.) I was especially moved by the discussion of Okinawa which, even as a baby boomer growing up with WWII documentaries, I knew next to nothing about. (Hanson explains why.) Among other things, this portion contains a fascinating discussion of the effect of suicide fighters (in this case kamakazes) on the western military and political psyche, which he argues directly connects to the American willingness to use atomic weapons on Japan, as well as to the US response to 9/11. As usual, Hanson knows how to tell a tale, beginning with his opening description of his uncle and namesake, Victor Hanson, who was killed on Okinawa.

And speaking of Victor Davis Hanson, check out is column today in NRO: The Western Disease--The strange syndrome of our guilt and their shame. It is too long to fairly represent with an excerpt but this sentence nicely summarizes the thesis: "The so-called Arab street and its phony intellectuals sense that influential progressive Westerners will never censure Middle Eastern felonies if there is a chance to rage about Western misdemeanors."

 
[Eugene Volokh, 12/30/2003 07:31:58 AM]
More on almanacs: A reader writes about the almanac alert:

It's at least a week's worth of Jon Stewart routines, no? The sketches virtually write themselves. . . . Ben Franklin being held as an "enemy combatant"; some deluded mystic "brandishing" an almanac and shouting "The end of the world is near?", only to be arrested and interrogated; a hot-shot Bureau operative thinking to himself . . . "Hey, what about . . . phone books!" (cue to picture of Bell White Pages juxataposed with Anarchist Cookbook, Al Qaeda training manual, etc.) . . . .

Other readers suggest that the almanac tip might be useful as one item to put together with others, just as a tip that one of the suspects in a case might be (though isn't sure to be) a male about 6 feet tall might be useful. I guess that's possible, as my earlier post suggested; I just don't think it's that likely, in this particular situation.

 
[Juan Non-Volokh, 12/30/2003 06:53:08 AM]
DDT Revisited (Again): Several readers take issue with my claim that the ban on DDT was primarily responsible for the recovery of several bird species listed under the Endangered Species Act, including the bald eagle. The data most skeptics cite is here. I agree with this analysis when it comes to human health, but not for birds. While I admit the link between DDT and avian populations is anything but airtight, I believe that it is the most plausible of the various competing hypotheses. Indeed, I have yet to see an alternative hypothesis that can explain the population trends of all the birds in question (such as the bald eagle, brown pelican, peregrine falcon, and arctic peregrine).

I would also note that the skeptic's case has holes of its own. Numerous studies of chickens and other species of poultry may not be probative of DDT's impact on eagles and falcons, just as the finding that a given substance kills rats is not always probative of whether it kills mice or men. (Yes, there are substances that appear to be carcinogens in mice but not rats or vice versa.) Similarly, that blackbird or quail populations increased during widespread DDT use tells us little ab out DDT's effect on a select number of raptor species.

In short, the use of DDT has saved many human lives -- and continues to do so where it is used for malaria control in parts of southern Africa. Nonetheless, it appears DDT did harm populations of some birds. For more on DDT, see my posts here and here.

Monday, December 29, 2003

 
[Eugene Volokh, 12/29/2003 09:55:11 PM]
Humility watch: So if you publicly and personally chastise someone for lacking humility (as the Anglican Bishops seem to be doing to Tony Blair), and instruct him in how he should be acting instead, are you really being that humble?

     Of course, I realize that I'm not being particularly humble in faulting the bishops here -- but my quarrel isn't with lack of humility as such, but rather what seems to be a fairly significant inconsistency.

     Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 12/29/2003 09:43:19 PM]
Almanacs: Seriously, how useful is it to alert the police to watch for people carrying almanacs? Here's the relevant excerpt:

In a bulletin sent Christmas Eve to about 18,000 police organizations, the FBI said terrorists may use almanacs "to assist with target selection and pre-operational planning."

It urged officers to watch during searches, traffic stops and other investigations for anyone carrying almanacs, especially if the books are annotated in suspicious ways.

"The practice of researching potential targets is consistent with known methods of Al Qaeda and other terrorist organizations that seek to maximize the likelihood of operational success through careful planning," the FBI wrote. . . .

The FBI said information typically found in almanacs that could be useful for terrorists includes profiles of cities and states and information about waterways, bridges, dams, reservoirs, tunnels, buildings and landmarks. It said this information is often accompanied by photographs and maps.

     Yes, I realize that the police may legitimately look at even innocuous details when deciding whom to watch more closely. My objection isn't a legal one, but a practical one: When something is (1) used by so many people (almanacs, I suspect, don't derive much of their sales from the terrorist market), and when it's (2) so easy for the bad guys to conceal their use once they hear about the alert (if it's sent out to 18,000 police organizations, it's unlikely to remain secret for long), is it really worthwhile to spend scarce law enforcement time and attention on it?

     Of course, I may be entirely wrong: I'm not an expert on law enforcement, and the people at the FBI are. Maybe the few days between Christmas eve and the time the alert was broadly publicized might have helped some police age cies notice some terrorists; and maybe the police weren't as swamped with false positives as I'd have guessed. But it just doesn't seem that plausible to me.

 
[Eugene Volokh, 12/29/2003 09:26:55 PM]
Declarations of war: I occasionally get messages arguing that we aren't, for legal purposes, at war because there's been no declaration of war. As I've mentioned before, though (and it might be worth mentioning again), there are two problems with this argument:

1. There is no such legal rule -- rather, the legal rule is that we can be at war for legal purposes even without a declaration. See here for Supreme Court cases that so hold or suggest.
2. In any event, there has been a declaration of war. See here for links to authorities. Incidentally, for whatever it's worth, Sen. Biden -- who helped draft the post-Sept. 11 authorization of force -- has explicitly said that it was meant to be, and is, a declaration of war.

These are, as best I can tell, pretty clearly established legal propositions. One can certainly argue that certain things should be impermissible even in time of war; and one could argue that the legal rule should be different, for instance should require a Congressional resolution that contains the words "We declare war." But the legal rules as they now are impose no such requirement.

 
[Eugene Volokh, 12/29/2003 09:18:06 PM]
Intellectual Property Barbie: Another win for people parodying Barbie. The Ninth Circuit held -- quite correctly, I think -- that such uses are fair uses, and don't infringe Mattel's copyright, trademark, or trade dress. Mattel may even have to pay part of the defendant's legal fees, too, since the Ninth Circuit suggested that Mattel's claims "may have been groundless or unreasonable" (though the ultimate decision on this will be for the trial judge). Nice.

 
[Randy Barnett, 12/29/2003 01:14:22 PM]
Faith In Prison? There is an interesting exchange on Punishment Theory on the propriety of faith based prisons. Larry Solum responds to Rick Garnett's most recent post on Legal Theory Blog.

 
[Eugene Volokh, 12/29/2003 12:27:59 PM]
Dan Drezner guest-blogging for Andrew Sullivan: Cool! I've always much enjoyed Dan's work, both on his own blog and when he has visited here.

 
[Eugene Volokh, 12/29/2003 10:23:07 AM]
Legislator calls for restricting speech in universities: According to The Arizona Republic,

Rep. Steve Gallardo . . . will introduce a bill in the Legislature that would prevent professors from using college computers to spread comments considered offensive or inflammatory toward minorities.

The proposed law would apply to all the community colleges in the state and would prohibit discrimination against anyone based on race, religion, sexual orientation, age or disability.

Gallardo is counting on community colleges to offer suggestions about what penalties to impose. If no ideas are offered, the legislation would include the dismissal of the offender. . . .

Gallardo said he . . . believes intellectual liberty is important, but that hate isn't protected under the U.S. Constitution. . . .

Well, he may believe what he pleases, but under existing First Amendment law, viewpoints are equally protected by the First Amendment whether they spread love or hate. This is a serious and troubling attack on academic freedom, especially since computers are increasingly the way that university professors do their scholarship, public commentary, and research. A pretty appalling proposal for a state legislator to make.

     Here, incidentally, is the paper's summary of the incident that apparently prompted this attempt at speech suppression:

When Glendale Community College math Professor Walter Kehowski sent e-mails criticizing some Latino students' views as racist, the students fought back. They accused him of bigotry and demanded that something be done about it. . . .

Kehowski, who could not be reached for comment, was upset about a Dia de la Raza celebration in October because he felt the students expressed racist attitudes toward non-Hispanics. So, he sent the e-mail messages promoting "the superiority of Western civilization." He said at the time that ethnic groups should be assimilated into society and some activists use ethnic pride as an excuse for separatism.

By the way, I'd love to see the proposed bill text when the bill is actually introduced. If you run across it before I do, please pass it along.

 
[Juan Non-Volokh, 12/29/2003 08:58:11 AM]
McNabb Mea Culpa: It is time for those of us who believed Philadelphia Eagles QB Donovan McNabb is overrated to eat a little crow. After walloping the Washington Redskins, the Eagles are the No. 1 seed in the NFC - and McNabb is much of the reason why.

 
[Juan Non-Volokh, 12/29/2003 06:49:58 AM]
n by citizen suit litigation, not administration policy. In places like the Pacific Northwest, environmental activists have wielded the law as a "sledgehammer" in federal court to control land-use or prevent development. Sometimes this litigation is the result of genuine concern for endangered species. In other cases, the species in question is simply a useful proxy for other environmental or aesthetic concerns.

A Washington Post editorial tries to claim the law is a success, but only succeeds in demonstrating how ESA myth overshadows environmental fact. For instance, the Post writes, "Thanks to the legislation, the American bald eagle, whose near-extinction had become a symbol for environmental degradation, is still flying." Not quite. The primary threat to the bald eagle was the pesticide DDT, which was linked to reproductive problems, specifically egg shell thinning, in several birds species. Yet DDT was banned in the United States in 1972, over twelve months before the ESA was enacted. Other federal laws, such as the Eagle Protection Act, also provided the bald eagle with specific protection against poachers and collectors. Thus it may be fair to cre it the federal government with the bald eagle’s recovery, but the ESA was not the tool of this success. (Much the same can be said about the recovery of the peregrine falcon, which the AP celebrates here.) The Post is equally off-base in crediting the ESA with the recovery of species like the American Alligator, and it is simply perverse to credit the ESA for inspiring an international ban on trade in elephant products – a ban that has done more to imperil elephants, by diminishing the value of elephant herds and their habitat – than it has to save them.

Acknowledging the controversial nature of the ESA, the Post declares the Act is not "broken," and can be saved by "flexibility and a more cooperative attitude." As examples the Post cites the certainty-enhancing rules recently invalidated by a federal court (see here), and species conservation efforts in Texas, where ranchers "agreed to encourage the growth of endangered species' habitat in exchange for more control over their property." A more accurate description of the Texas "safe harbor" plans would be that federal regulators have agreed not to apply the ESA if landowners will allow conservation efforts on their land. So the Act "succeeds" when it is not applied. That is no model of effective legislation, and hardly the sort of law we should celebrate after 30 years.

Sunday, December 28, 2003

 
[Eugene Volokh, 12/28/2003 09:35:42 PM]
Kerry misquoting Dean? FoxNews reports:

"Howard Dean says he's the only candidate who talks about race in front of white audiences, but many of the candidates in this field have dedicated themselves to this cause," [Kerry] said. He called Dean's claim an insult to the two blacks in the race, Al Sharpton and Carol Moseley Braun.

I had thought that Dean specifically said that he was the only white candidate who talks about race in front of white audiences. See, e.g., this transcript of the Sept. 9 debate:

I'll tell you why I connect with African American audiences. I'm the only white politician that ever talks about race in front of white audiences. Black folks have heard lectures from white politicians for a long time. We always talk about race. White folks need to talk to white people in America about race.

Now Dean may be mistaken; John Edwards, for instance, has said that he often talks about race to white audiences. But if I'm right, and Dean has consistently qualified his assertion as limited to white candidates, then Kerry's objection seems misplaced -- in fact, seems to rest on a misquote (or misparaphrase).

 
[Eugene Volokh, 12/28/2003 09:34:18 PM]
Pledge of allegiance: As I've blogged before (see the last paragraph of this post for a brief summary of my bottom line, and this post for a broader analysis of both sides' arguments), I think the Court should hold that it's constitutional for schools to include "under God" in the Pledge of Allegiance. But this argument, which I've seen in many places but most recently in the federal government's brief (see pp. 32-33), seems to me quite wrong (citation omitted):

[T]he Pledge is "consistent with the proposition that government may not communicate an endorsement of religious belief," because the reference to God acknowledges the undeniable historical facts that the Nation was founded by individuals who believed in God, that the Constitution's protection of individual rights and autonomy reflects those religious convictions, and that the Nation continues as a matter of demographic and cultural fact to be "a religious people whose institutions presuppose a Supreme Being."

     "I pledge allegiance to . . . the Republic for which [the flag] stands, one Nation under God" doesn't mean "I pledge allegiance to one Nation founded by people who believe in God," or "I pledge allegiance to one Nation whose people today believe in God," or "I pledge allegiance to one Nation whose institutions presuppose the existence of God." Rather, it means "I pledge allegiance to one Nation under God" -- to a nation that is under God (whether in the sense of "existing at the will of God," "which should aspire to comply with the will of God," or "the allegiance to which can only be exceeded by my allegiance to God").

     This is an assertion of theological belief, n t of historical or sociological fact. Someone who says the Pledge is literally endorsing the existence of God (though, as with many conventional statements, people may say it as a symbolic statement without really meaning each of its components). The Pledge itself likewise literally endorses the existence of God. The question is whether such an endorsement is unconstitutional (whether because it's an endorsement, or because it's psychologically coercive) -- not whether it's an endorsement.

 
[Eugene Volokh, 12/28/2003 07:36:19 AM]
Will they still be able to say that? Back in the 1980s (if I recall correctly), when the news was full of (1) the English outbreak of Mad Cow Disease and (2) anti-government extremists in Montana, someone suggested a new state slogan:

Montana: At least our cows are sane.

 
[Eugene Volokh, 12/28/2003 07:04:22 AM]
Ombudsman, ombuds thyself: [UPDATE: There is a major error in this post; see here.]

OmbudsGod rightly complains about newspaper ombudsmen unfairly maligning Strom Thurmond. Now I'm all in favor of people fairly maligning Thurmond; and Thurmond made it pretty easy for them to do it. But one should still stick with the facts, not fictions.

     The Palm Beach Post error is especially clear: The ombudsman accuses Thurmond of "apparent statutory rape" of a 16-year-old maid, though the age of consent in South Carolina until recently was 14. (Now it's sixteen, which seems to be more or less the norm throughout the country today; see here for a table -- yes, I also suspect that the table is mostly designed for people who like to have sex with teenagers, but it seems to be pretty accurate, and I've found it useful even for more academic purposes.) I've e-mailed him (hanif@pbpost.com), and I'm sure others have, too. If any readers notice a correction in the Palm Beach Post, please let me know.

 
[Juan Non-Volokh, 12/28/2003 06:00:49 AM]
Unhappy Birthday ESA: The Endangered Species Act (ESA) turns 30 today, but this is hardly cause for celebration. Though often heralded as one of the nation's most important environmental laws, it has been an abject failure. The ESA doesn't save species, and is often an obstacle to species conservation. Michael De Alessi summarizes some of the Act's problems:

For starters, the ESA has done precious little to help endangered animals. Since the act's passage, seven American species have gone extinct. Meanwhile, while more than 1,260 species have been listed as "endangered" or "threatened," only 10 North American species have "recovered," often due to efforts unrelated to the ESA.
Even worse, the ESA has often backfired, prompting needless destruction of wildlife habitat as it expanded from its initial mission of helping endangered species to blocking economic activity across the country.

Specifically, the pinch of ESA regulations governing private land-use discouragtes many landowners from creating or maintaining habitat. As a survey in the December Conservation Biology found, once a species is listed, landowners may be as likely to destroy needed habitat as they are to adopt conservation measures and many will refuse to allow biological surveys on their land. These results are consistent with the findings from this study published in the Journal of Law & Economics finding that landowners engage in preemptive habitat destruction in order to escape ESA regulation. In other words, the ESA undermines species conservation on private land.

Saving endangered species is an important and laudable goal, but the ESA is not an eff ctive way to achieve it.

UPDATE: More on the ESA's anniversary here.
[If the link is buggy, the post is dated Monday, Dec. 29, 9:49am.]