Archive | November, 2004

Third Circuit mass recusal:

Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that “In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday’s Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit’s active judges is recused from the case.” Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn’t rehear it en banc, it sounds like I need to get rid of that “if” clause. Howard agrees:

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday’s Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.

What’s more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review “splits,” which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.

By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.

UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or […]

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The Folly of the International Court–Israel as Exemplar:

Details here.

Donor nations, including the U.S. [a reader points out that the official U.S. rationale is that it won’t fund projects in the West Bank if the Palestinian Authority objects], are denying funds to Israel to build roads for Palestinians in the West Bank on the ground that the ICJ has declared Israel’s fence and related West Bank policies to be illegal under international law. The post linked to above goes into detail on the relevant legal issues, but I’ll point out another interesting fact: for all the Palestinians’ complaints about the checkpoints, they (or at least their leaders, who lobbied strongly against the funding) would rather have the checkpoints than have Israel build a road system that would allow them to travel much more freely throughout the West Bank without creating a terrorism hazard for Israelis. […]

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Power Corrupts…:

A friend sent me a link, which I can’t find right now, to a story about Israeli soldiers forcing an Arab man at a West Bank checkpoint to play his violin. Given the history of terrorists hiding bombs in ambulances and other seemingly innocent locations, it’s not surprising that the soldiers wanted to check on the violin, just as in the U.S. the TSA makes you turn on your laptop. Still, the soldiers apparently took gratuitous pleasure in this exercise of power, even ordering the man to “play something sad.”

Unfortunately, there are many stories of abusive behavior at the checkpoints. Put a bunch of 19 year old men in a position where they have absolute power over other people, and some will inevitably abuse that power. The Israeli military can and should, however, do a better job of training and supervising its soldiers.

But let’s also recall, as media stories on the issue never do, that the checkpoints only exist in their current form because of the need to prevent suicide bombing murders. Before the Palestinians began engaging in this “tactic,” they could move more or less freely within the West Bank, Gaza, and even Israel. (Not to mention that Israel wouldn’t even be occupying the West Bank anymore if Arafat had been willing to strike a deal in 2000.)

My (Israeli) wife notes that when (if) there is eventually a peace deal, the Palestinians will be a lot poorer in the long-term than they would have been had a deal been reached before the “Oslo War” was launched by the Palestinians in 2000. Israelis used to go to the West Bank to get good deal on car repair, food, and other items, and later to gamble in Jericho, and many Palestinians used to go to Israel to work. […]

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Another Victim of Arafat

My recent media column in the Rocky Mountain News examined the press’s moral bankruptcy in its coverage of the death of the mass-murdering terrorist Yassir Arafat. A reader sent his own memories of one of Arafat’s many crimes against humanity:

When I was living in Israel from 1977-78 Yasir Arafat sent a group of terrorists down from Southern Lebanon in a small boat. They landed north of Haifa and when they came ashore found a young American woman by the name of Gail Rubin. She was a nature photographer who had the misfortune of taking photographs in the area where Arafat’s men beached their boat. (A beautiful collection of her photographs was published after her death under the title: Psalmist with a Camera). After extracting information from her about their location they murdered her and proceded to the coast highway. There they commandered a bus and drove down the highway, shooting at pedestrians and passing cars. When the Israeli army shot out the tires and stormed the bus the terrorists opened fire on the passengers. Gail Rubin and the others murdered that night were just a few of the victims of Yasir Arafat. As you pointed out in your piece on November 20 in the Rocky Mountain News, he was a man responsible for death of thousands of Jews and, because of the violence he fomented, of thousands of Palestinians as well. I agree with you that the news coverage about Arafat after his death was unbelievably distorted and cowardly.


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Anti-terrorism, Pro-freedom County Music

What if The Weekly Standard were turned into country music songs? It would probably sound a lot like the music of Eric Free and the Freedom Band. The band sings catchy country numbers like “Saddam Insane” (“Saddam Insane, twisted brain, gotta say goodbye to his evil reign”), “There’s No God in Old Bin Laden” (“they pretend it’s their religion, but it’s just the Devil’s fun”), and “United We Stand” (“Evildoers invaded our land; they bombed our cities and slaughtered our friends. We’ll win this war that they began”). Each song of this “New Patriot Music” can be downloaded from the group’s website for 99 cents, and the website provides a short clip of every song, so you can decide if you like it. […]

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Faculty Clubs and Churches:

Bill Stuntz, one of the country’s leading scholars of criminal law, has an interesting essay over at TechCentralStation on the similarities between law school faculties and churches. An excerpt:

  The past few months have seen a lot of talk about red and blue America, mostly by people on one side of the partisan divide who find the other side a mystery.
  It isn’t a mystery to me, because I live on both sides. For the past twenty years, I’ve belonged to evangelical Protestant churches, the kind where George W. Bush rolled up huge majorities. And for the past eighteen years, I’ve worked in secular universities where one can hardly believe that Bush voters exist. Evangelical churches are red America at its reddest. And universities, especially the ones in New England (where I work now), are as blue as the bluest sky.
  . . .
  . . . Most of my Christian friends have no clue what goes on in faculty clubs. And my colleagues in faculty offices cannot imagine what happens in those evangelical churches on Sunday morning.
  In both cases, the truth is surprisingly attractive. And surprisingly similar: Churches and universities are the two twenty-first century American enterprises that care most about ideas, about language, and about understanding the world we live in, with all its beauty and ugliness. Nearly all older universities were founded as schools of theology: a telling fact. Another one is this: A large part of what goes on in those church buildings that dot the countryside is education — people reading hard texts, and trying to sort out what they mean.

Thanks to Mirror of Justice for the link. […]

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Poll on Roe v. Wade:

From an AP story yesterday:

[An AP] poll found that 59 percent [of respondents] say Bush should choose a nominee who would uphold the 1973 Roe v. Wade decision that legalized abortion. . . . 31 percent, said they want a nominee who would overturn the decision . . . .

Sounds pretty striking (and I should note that it’s important even given the substantial correction that I note below). But here’s what the poll actually asked, courtesy of the ever-valuable

“As you may know, President Bush may have the opportunity to appoint several new justices to the U.S. Supreme Court during his second term. The 1973 Supreme Court ruling called Roe v. Wade made abortion in the first three months of pregnancy legal. Do you think President Bush should nominate Supreme Court justices who would uphold the Roe v. Wade decision, or nominate justices who would overturn the Roe v. Wade decision?”

But wait — Roe didn’t just make abortion in the first three months of pregnancy legal. It also made it legal at any time before viability (limiting government regulation to that related to protecting “maternal health”); the Court said viability would be at about six or seven months (though over time, the line has moved up a bit, as the 1992 Casey decision recognized). I suspect that such months-four-to-six abortions would be considerably more controversial than ones in months one through three.

Now I should say the poll is still pretty significant, because it shows broad support for the constitutional protection of first-trimester abortions. But it doesn’t show equal support for all aspects of Roe, especially its protection of second-trimester abortions. And while I realize that poll questions have to be kept simple, (1) I suspect that the polltakers shouldn’t have oversimplified things […]

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Florida pro-Bush Democrats:

Remember those allegations early this month (feels like ages ago, doesn’t it?) that there was something fishy in some Florida counties’ being reported as voting heavily pro-Bush when voter registration was heavily Democrat? It seemed to me that this was actually fishy only to those who hadn’t heard of conservative Southern Democrats, but people definitely brought it up (see the linked post above for an example). Here’s what John Fund in OpinionJournal’s Political Diary has to say about the latest in this saga; entire item reprinted with permission:

Pith-Helmeted Reporters Meet Bush Voters

Two Miami Herald reporters got a real education in red-state thinking when they decided to check out the Internet conspiracy theories that George W. Bush had stolen Florida because several counties with overwhelmingly Democratic voter registration edges had voted Republican for president. As one blogger put it, “George W. Bush’s vote tallies . . . are so statistically stunning that they border on the unbelievable.”

Not after the Miami Herald scribes decided to actually drop in on three of the northern Florida counties whose vote totals were questioned. Sounding as if they were cultural anthropologists visiting an exotic tribe, reporters Meg Laughlin and David Kidwell first visited Union County, where over 75% of voters are Democrats. They physically recounted the ballots cast in this month’s election and concluded the results accurately reflected Mr. Bush’s reported 72% victory. Election Supervisor Babs Montpetit explained: “People here are fundamentalist Christians who work in the prisons. Do you think they’re going to vote for the liberal senator from Massachusetts?”

Having absorbed that observation, the intrepid pair proceeded to next-door Suwannee County, immortalized in the famous Stephen Foster song. Election Supervisor Glenda Williams showed them the ballots, which the reporters noted validated Mr. Bush’s 70% victory there. “Most people in this


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Pacers to Face Criminal Charges

According to this report, both unruly fans and several players for the Indiana Pacers will face criminal charges for their conduct in the November 19 basketbrawl. The fan who threw a chair may be in the most serious trouble. Prosecutors say they are likely to file elony assault charges against him.

Insofar as any indictments against players focus on actions taken off the court, I think that they are justified. I do not think that local law enforcement should seek to prosecute players for any actions taken by players on the court, however. Nor would I be sympathetic to any tort suits filed by fans injured by players on the court. I feel this way for two reasons. First, I believe that fans who ventured onto the court during the fracas assumed the risk of injury. Second, I think that players could reasonably perceive Detroit fans coming onto the court as a threat. Therefore, they could argue that their actions against fans on the court were made in self-defense.

Meanwhile, it appears the Indian Pacers franchise could save over $7 million due to the extensive suspensions of Ron Artest and other players involved in the brawl. […]

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Likudnik, One More Time:

Brad Delong writes:

I use the word “Likudnik” routinely to refer to those in American who support Likud, and who believe that the national security of the United States is advanced by feeding Likud’s annexationist fantasies. I’m not an anti-semite. And I don’t like being called one:

The Volokh Conspiracy – : …the phrase “Likudnik” is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn’t like…. “Likudnik” has become a term of disapprobium analogous to the term “Uncle Tom” for non-left-wing blacks. Just like it’s assumed that moderate, conservative, and libertarian blacks must not be thinking for themselves, but instead serving “the Man,” so moderate, conservative, and libertarian Jews must be serving the interests of right-wing Israelis (the obvious difference is that left-wing culture values African American self-interest and nationalism, while left-wing culture values Jews and Judaism only to the extent they are put in the service of internationalism and humanist causes.)… Well, the Left (along with the Washington Post, which used the term in a major article attacking Bush Admnistration neonconservatives) has let this particular anti-Semitic genie out of the bottle…

Suggestions for what should replace the Volokh Conspiracy on my regular reading list?

One of his readers responds in the comments section:

Bernstein on the Volokh Conspiracy doesn’t say that anyone who uses the term “likudnik” is an anti-semite. He says ‘the phrase “Likudnik” is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn’t like.’ Which is my general impression as well. It’s becoming like calling someone a “cosmopolitan Jew,” or an “oriental” or a “negro.” These were once neutral terms, or even terms with positive connotations. But these terms’ meaning has shifted and they are now pejorative.

If you don’t believe this, I wouldn’t claim that you’re anti-semitic. I would


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The Lying Study Appears to be Misdesigned.–

If the news accounts are correct, the new study distinguishing the brain scans of liars from truth-tellers has a serious design flaw that goes beyond the small sample size. Indeed, it is such an obvious flaw that I wonder whether the researchers really made it, or whether instead the reporters got the story wrong:

Faro and colleagues tested 10 volunteers. Six of them were asked to shoot a toy gun and then lie and say they didn’t do it. Three others who watched told the truth about what happened. One volunteer dropped out of the study.

While giving their “testimony,” the volunteers were hooked up both to a conventional polygraph and also had their brain activity imaged using fMRI, which used a strong magnet to provide a real-time picture of brain activity.

There were clear differences between the liars and the truth-tellers, Faro’s team told a meeting in Chicago of the Radiological Society of North America.

“We found a total of seven areas of activation in the deception (group),” he said. “We found four areas of activity in the truth-telling arm.”

Overall, it seemed to take more brain effort to tell the lie than to tell the truth, Faro found.

Lying caused activity in the frontal part of the brain — the medial inferior and pre-central areas, as well as the hippocampus and middle temporal regions and the limbic areas. Some of these are involved in emotional responses, Faro said.

In experimental design it is elementary to match the experimental conditions as closely as possible. In very small studies, one should vary only one variable at a time (there are some designs that rotate several changes). Here the liars fired a gun while the truth-tellers passively watched someone else fire a gun. Then the people who shot the gun engaged […]

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