Saturday, January 24, 2004

 
[David Bernstein, 1/24/2004 09:16:34 PM]
Strange Syntax:

When Lieberman is asked how his faith would affect his politics, he paraphrases a now-famous Kennedy line, telling voters, "I am a presidential candidate who happens to be Jewish, not the other way around."

So Lieberman is not "a Jewish who happens to be a presidential candidate?" The quote would work if Lieberman would say "to be a Jew" instead of "to be Jewish" but in American English, calling oneself or someone else "a Jew" seems to be considered less polite than saying oneself or someone else "is Jewish."

 
[David Bernstein, 1/24/2004 07:04:01 PM]
Freedom of Speech in France: Dressing up like an Orthodox Jew and giving a Nazi salute while shouting "Heil Israel" is contemptible; but prosecuting that individual for violating "hate crimes" laws [link found on Little Green Footballs] is authoritarian and unworthy of the free society France purports to be. France's record in combatting anti-Semitic violence was weak until recently, but its government shouldn't try to redeem itself by stifling political speech, even speech that is offensive and insulting. [Note: Somehow, I originally misread this story as coming from Quebec, and I've edited the post to correct my error.]

 
[Sasha Volokh, 1/24/2004 06:28:07 PM]
Conspiracies: The Dalek Conspiracy. The Moloch Conspiracy. (See also here.) The Pollock Conspiracy. The Bullock Conspiracy. The Bolick Conspiracy.

 
[Sasha Volokh, 1/24/2004 04:53:04 PM]
A real-estate ad: Are you moving to Cambridge? I'm looking to sell my apartment and move out by June. Two bedrooms (one of them large, and a study that can work as a third bedroom), two bathrooms, two working fireplaces, building with historic charm, many new fixtures. On Mass. Ave.; two minutes' walk from Harvard Yard, five minutes from the Harvard Sq. T stop, ten minutes from Harvard Law School. Roughly 800 sq. ft. I've had a wonderful time living here for the past five and a half years.

Write me e-mail if you're seriously interested.

 
[Sasha Volokh, 1/24/2004 04:48:41 PM]
Perhaps Shmata is the Greek plural of Sh'ma. Also, my father asks whether, if Lieberman gets some pro-Jewish law passed that benefits his district, it's correct to call it pork.

 
[Randy Barnett, 1/24/2004 01:40:10 PM]
Still More Reader Response to Liberals on Communism: It's the weekend so people seem freer to share their recollections about the topic, so here goes one more round. I suspect it will be the last installment, but who knows? I hope readers find what other readers have to say as interesting as I do.

Let me add two of my many college encounters with regard to the Soviet Union and the communist bloc. When I took economics 101, in 1966, the textbook was Samuelson, of course. Inside the back cover was a graph comparing the gross national products of several countries over a long period of time (since 1900, I think). What it showed was that the US had the largest GNP, but it had grown through a series of severe booms and busts. The Soviet Union's GNP was still somewhat lower than the US's, but since the mid-1930s (the Five Year Plans, I guess) it had grown in a straight, sharply rising line (rising faster than US GNP at any point except major booms), that it had never experienced any downturns, and that it would quite clearly surpass the American GNP in the near future that was just off the edge of the book. This, then, was the "knowledge" that economic students at Brown received, in the mid to late 1960s; they certainly would not have thought of themselves as Soviet apologists for repeating it, as another occasion showed.

I was arguing about the economic merits of communism and capitalism with a liberal friend who was an economics graduate student. Deferring to his greater knowledge, I humbly brought up the East Germany vs. West Germany comparison. He replied that in fact the East German economy was larger and stronger than the West German economy, and that East Germany even produced better cars. That would be the two-cycle, lawnmower-engine Trabant, I guess. Unfortunately, at the time, I did not know the Trabant. But the conversation taught me a useful lesson: Get the facts; impressions cannot trump misinformation.

. ..................................

I was reading your posts on liberals and communism over at Volokh.com and it reminded me of an experience I had while a graduate student at Brown. I was sitting down waiting for a talk to begin and my putative advisor was talking to another professor who asked her what she thought about the then-newly released Black Book of Communism, since her specialty was in post-Soviet politics. She sort of sniffed and said, "Well, it's really a biased perspective. It's certainly not the whole story."

I think that sort of sums up how a lot of liberals felt about the USSR. It certainly had a lot of disagreeable features, they thought, but the visible egalitarianism seemed really appealing. All you have to do is to read Barrington Moore's The Social Origins of Dictatorship and Democracy, where he explicitly (in the introduction) argues that the communist road to modernity was no more wrenching or destructive than the liberal or fascist one.

.....................................

When I was in elementary school and high school, the teachers would often say things like the following:

Communism is the best system in theory, although capitalism may work better in practice.

The Native Americans lived under a basically communist system, and everyone was happy and no one starved, so it's obvious it's better when people do it right.

In general capitalism and communism were presented as equally valid choices with communism perhaps holding the moral high ground. This was pretty shocking and memorable to me, since my family had escaped a communist country when I was very young.

.......................................................

UPDATE: Another reader writes:

. . . Modern liberals/moderate-leftists, I think, are not the descendants of the communists of old. They are rather Mensheviks, at the radical end, and the 'social reformers' against whom Marx ails, at the moderate end. A welfare state is entirely antithetical to Marxist theory, as it is an abhorrent compromise with the bourgeoisie. Therefore, I cannot say that the experience of the USSR need tell us anything about the
impact of liberal policies on the United States. Perhaps if liberals understood that they are not necessarily on the same political bench as the communists, there would not be so much sympathy for communist regimes.

 
[Randy Barnett, 1/24/2004 01:36:01 PM]
Then Again You Could Change the Subject and Bash the Right: Then there is the following response, typical in my experience of one sort of blogosphere reaction whenever either "liberals" or "the left" are criticized. I interject my comments:

Randy

I'm eager to move on from the recent flood of posts beating up liberals for not apologizing sufficiently for the reds amongst them.

People are reporting their experiences with often self-righteous persons who turned out to be wrong. I see no "beating up" behavior. To the contrary several noted similar reactions by conservatives. Nobody claimed that liberals were themselves communists. Only that they continued to express sympathy for tyrannical regimes. This is called "anti-anticommunism" which is not itself to be a communist. But I guess I don't blame this reader for his eagerness to "move on." As the ironically named "Move-On.Org" has demonstrated, we must always "move on" immediately from Democrat peccadilloes, to dwell endlessly on those of Republicans or the Right. Indeed, many have not "moved on" from McCarthy or Nixon. "Moving on" is apparently done on a one way street.

Can we talk about the conservatives who, dollar-signs in their eyes, can't say enough nice things about Red China *today*?"

I have been to the PRC and I am well aware of the serious abuses of dissidents there and the lack of political freedoms which is to be condemned and resisted. I tried unsuccessfully to get my official tour guide admitted to the US, but though the PRC gave him a visa after he quit his state job, he was turned away by US immigration officials in Beijing after I had arranged his admission and scholarship to a local college. And we all watched Tiananmen Square first with hope and then with horror.

Nevertheless, there is no question that China's movement towards a market economy has greatly benefited large numbers of the p blic, though not everyone of course. In fact, from large cities to small, one is simply in awe of the increased prosperity all around you. You are only allowed to tour some cities on formal tours such as I was on, but this includes a lot of different size cities and towns. And in the 1990s tour guides were amazingly candid about the bad as well as the good. Much more progress needs to be made but progress has undoubtedly been made. Just listen to the people talk there, quite freely, of the horrors of Mao's Cultural Revolution. It seems at every historical site, the story is the same: this temple was used as a stable during the Cultural Revolution, or this has been "restored" (read: completely rebuilt) from having been trashed during the Cultural Revolution. I could go on and on. None of this is to apologize in any way for the current Communist party rule in China. It is simply to note that when even a brutal regime such as the PRC liberalizes economically in the direction of the market to some degree, even without political reform, the lives of its people improve markedly. An important lesson to learn.

Or the ones who were happy to sweep under the rug any inconvenient truths about death squads in Latin America &c. when the death squads were on the right? (And there are plenty of autocratic, oppressive, vicious governments in the world *today* that have no shortage of defenders on the U.S. right wing.)

This is the typical association of tyrannical regimes with "the Right" because the regimes are not communist. Remember when the Soviet communists were called the "conservatives" when they resisted Gorbachev's reforms? Even if this categorizing makes sense in the foreign context, these "rightist" regimes have no connection with, nor bear any relationship to, the American "right." More relevantly to this thread, you do not ever hear American conservatives or libertarians extolling the virtues of so-called "right-wing" dictatorships as some sort of m sbegotten but well-motivated model, the way liberals and the left continue to express sympathy with left-wing dictatorships such as that in Cuba. (I view Chile as a different and more difficult case. There you did and still do see some Americans on "the Right" expressing sympathy for the Pinochet regime--as do many Chileans--but the facts of its rule and how it came to power are deeply contested and I do not intend to explore them here.)

How about the conservatives who keep trying to trot out the "American Civil War wasn't about slavery, but about federalism, and the Confederates were really fighting for freedom" story?

The debate about what the Civil War was "really about" are longstanding and fascinating, but hardly map the liberal-conservative divide. And even the Southern-sympathic view of the so-called "war of Northern aggression" concedes the terrible injustice of slavery, while condemning the North for its racism and accusing it of being motivated more by nationalism and economics than a concern for slaves. Indeed, you hear this sentiment quite frequently from those on the left who want to condemn America rather than give the US any credit for ending slavery. Sound familiar?

It's disingenuous to spend multiple posts talking about the motes in the eyes of liberal professors, when conservative policymakers and pundits can hardly look at each other for the clashing of the two-by-fours.

Disingenuous? Liberal professors? Clashing of two-by-fours? Characterizing past and, in some cases, continued sympathy for regimes that killed or immiserated millions as a mere "mote" in the eye exemplifies the very phenomenon I and others were reporting. Thanks.

 
[Juan Non-Volokh, 1/24/2004 01:02:20 PM]
Liberals & Communism: Randy and Sasha's posts on the alleged soft-spot some liberals had for the Soviet Union during the Cold War brings to mind the closing line of Irving Kristol's 1952 Commentary essay on civil liberties and Communism. While noting Joseph McCarthy was a "vulgar demagogue," Kristol argued that there was reason to suspect more than a few of McCarthy's most vociferous critics -- the anti-anti-Communists -- were indeed soft on Communism. He then concluded (and I paraphrase) that there was one thing most Americans knew about McCarthy, and that was that he, like them, was unequivocally anti-communist. Yet about the spokesmen for American liberalism, they knew no such thing. Needless to say, this is arguably the most controversial thing Kristol ever wrote.

UPDATE: I fail to see how anything in the above passage consists of "gloating" about some on the Left's past inability to see the true evil of Communism, nor do I accept Brad DeLong's suggestion that I "praise or excuse" McCarthy simply by noting the parallels between my co-bloggers' reflections on liberals and Communism, and Kristol's 1952 assessment of the anti-anti-Communists. (Indeed, at least one of DeLong's commentators is as flabbergasted by this interpretation as I am.)

 
[Juan Non-Volokh, 1/24/2004 12:49:21 PM]
Covering the Judiciary Committee Memo "Scandal": Jack Shafer’s article in Slate on media reporting of the Senate Judiciary Committee memo scandal, highlighted by Eugene below, is definitely worth a read. He points out how much of the coverage, especially that in the Boston Globe, has been way overblown. Shafer’s bottom-line: The Senate staffers’ actions may have been wrong, and perhaps even deserving of censure, but they are hardly the "crime of the century." Indeed, there is no allegation that anyone surreptitiously gained access to another staffers computers through hacking or another nefarious means. [Note: Contrary to Mathew Yglesias’ suggestion, Senate staffers did not “break into” Democratic staff computers, nor does Shafer say that accessing the files was "okay."]

Shafer also makes the broader point, a point which merits underlining, that the decision of some media outlets to focus on the acquisition of the memos, rather than their content, is quite out of character. As Byron York noted, in a piece Shafer cites approvingly, "One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in how they were obtained. "One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in who leaked them."

As evidence for this point, consider that illegally or unethically obtained documents have often surfaced in the context of judicial nominations. Last year, Senate Democrats sought to use stolen documents to impugn the integrity of 11th Circ he code of judicial conduct. The draft opinion made lots of news, but there was little, if any, discussion of how the unreleased opinion made it into the hands of the press.

In the end, Shafer "can't help but think there's a journalistic double standard operating here in which partisan leaks to conservative journals and journalists . . . are treated as capital crimes, but partisan leaks that wound Republicans are regarded the highest form of truth telling." He may be right.

UPDATE: The Frozen North takes issue with my post, but but I take issue with his characterizations of the underlying facts and their implications.

For additional background, the GOP staff snooping involved accessing Democratic files by clicking on the “My Network Places” icon on the Windows desktop and accessing unsecured, unprotected files on the network drive. There was no hacking, no stolen password, no accessing of individual Democratic staff computer drives. If we’re getting into analogies, this is not like walking into someone’s unlocked office and copying their files, but rather like copying files left out in a common area. This does not mean accessing the files was not a slimy thing to do, but I do believe it affects just how slimy it is – and may make all the difference legally. Moreover, as I understand it (and contrary to the Frozen North's claim), a Republican staffer did let Democratic staff know about the security hole, but it remained unfixed for months. Again, this doesn't mean copying the memos was not slimy, but it makes the allegations less severe.

I also think Frozen North’s spin on the official Republican response is off. Unlike that of some outside conservative groups, the official GOP response has not simply been to say "that's what you should expect, etc." Staffers were placed on leave and when the Democrats asked for a formal investigation, the Republican Committee Chairman gave them one without delay. While it increasingly appears there was no illegal conduct, and it is still possible that one or more of the staffers involved will be punished for violating ethical standards, if not Congressional rules.

Finally, I would note that it is not Democrats who Jack Shafer or I critique for making this a "big deal," but journalists. Journalists are typically the first to ignore the seamy ways in which secret information is obtained in favor of celebrating its content. The departure from this norm is particularly noticeable here because, unlike in the other cases I noted, there was no clearly illegal conduct involved. In other words, I would expect the Democrats to be outraged (as would the Republicans were the shoe on the other foot), but I would also expect more media coverage of the memos content.

RELATED NOTE: I blogged on the substance of the memos, and the resulting allegations of ethical improprieties by Elaine Jones of the NAACP Legal Defense Fund, here and here. In a nutshell, some of the memos suggested Jones sought to delay nominations in order to affect the outcome of a case in which the Fund was a party, prompting several right-wing groups to file a complaint with the Virginia State Bar. Since the allegations were first made, Jones has announced her retirement from the Fund. Some readers have e-mailed suggesting a connection, but I am not so sure. At this point, I bel eve Jones' conduct, if it was as is alleged, was certainly unethical, but is unlikely to result in any formal sanctions.

 
[Sasha Volokh, 1/24/2004 12:27:48 PM]
More about Latin: Remember my previous post about Latin. Now, Hanah links to a nice Economist article about the modern-day popularity (such as it is) of Latin.

Finally, on Latin, remember that the plural of me is us, and that the plural of us is I. So a double plural is a singular, but you go from the objective to the subjective case. It's like a helix.

Also, via Garrett, Laser Monks.

 
[David Bernstein, 1/24/2004 11:08:43 AM]
New Arab Peace Initiative: This new initiative seems worth taking seriously, especially because it undercuts the deal-breaking Palestinian demand for a "right of return" to Israel. As an opening offer, it's a good one; I can't imagine that if the Arab states are serious about this, they would ultimately object to minor border modifications to allow Israel to absorb some of the Judean settlers in return for compensatory land grants from pre-1967 Israel (and many Israelis, in fact, would be pleased to exchange the Gush settlements in Judea for hostile Israeli Arab towns like Uhm al Fahm--towns that Israeli Jews are afraid to even drive through). Moreover, settling the Arab-Israeli conflict in one fell swoop seems far more sensible than the current piecemeal approach.

 
[Eugene Volokh, 1/24/2004 10:38:37 AM]
Race-based peremptory challenges of judges: See the FURTHER UPDATE to this post.

 
[Sasha Volokh, 1/24/2004 08:36:54 AM]
More on liberals on Communism: The other day, I said, briefly:

Another note on defending the USSR: Let me put in a note about another aspect of the fall of Communism. Many people on "my side" have suggested that the fall of Communism tells us something meaningful about the feasibility of American-style leftism or Western European-style social democracy -- either that it should make liberals revise their predictions of the economic impact of their proposals, or that it should make liberals think twice about the ethics of their philosophy. I think that the fall of Communism tells us very little directly on either of these points.

That post was just a quickie, and I did get one e-mail that said, just as briefly: "And I think that it does." Randy's last post gives me a chance to develop the thought slightly:

One response of the socialist-leaning to the fall of Communism was, "Now we've learned that we need to have some capitalism to produce what we socialists want to redistribute." (Compare with Randy's characterization below of liberals who sympathize with the idea of Communism but "conclude that it is impractical to take the principle that far.") Some conservatives and libertarians sneer at that response, but it's not clear to me why it's wrong as a logical matter.

Of course, I think it's wrong as a moral matter (I don't like the Communist ideal even in principle), but I mean it's a sensible conclusion for a socialist faced with this new fact. Someone with Communist ideals may once have favored Communism, based on the simple-minded principle that "If I want X, let's have a society that mandates X," which of course ignores behavioral responses to the X regime which might make the society both unstable as a practical matter and carrying a huge extra human cost as a moral matter. (The former is relevant or all Communists, the latter is relevant for those Communists who also value certain personal freedoms, a la George Orwell.)

Now, the fall of Communism unveils both the instability of the system and (for those who didn't see it before) the huge human cost. Why not say, "Now I realize that the optimal implementation of Communist principles, under real-life conditions!, is really only an extremely watered-down version of Communism, i.e., Sweden." In other words, keep your principles, but realistically revise their implementation (being appropriately embarrassed about ever defending the Soviet Union in the first place).

There may be circumstances where it's appropriate to change your core moral principles, e.g., change from being a communist to being a libertarian. I don't think we have a good idea what motivates those changes. Some people could look at slavery, introspect deeply on the nature of slavery, and conclude that slavery is bad because it violates self-ownership, and based on self-ownership, also come to oppose modern Western regulatory and redistributive states. Others could look at slavery, also introspect deeply, and conclude that slavery is bad because it prevents people from flourishing to their fullest potential, and come to favor a redistributionist system that makes sure everyone is wealthy enough to take advantage of opportunities for flourishing. I tend toward the first, but have never been able to justify my choice by anything deeper than deep moral intuitions.

So, to repeat, there may be circumstances where it's appropriate to change your core moral principles, e.g., change from being a communist to being a libertarian. I'm not sure that the fall of the Soviet Union is one of them.

 
[Randy Barnett, 1/24/2004 07:11:21 AM]
More Reader Response to Liberals on Communism: My posts on liberal sympathies for communist regimes seems to have struck a nerve. While a few still deny it or continue to offer apologies, most write to tell their own similar experiences--including some very recent. Here are some excerpts. (BTW, I never post the names of correspondents unless given permission to do so.)

I find it hard to imagine that your assertions are even controversial. Very much the same sort of thing is going on today among some liberals. Many of them have learned not to pop off too loudly in the post-9/11 world, but there's still a not-insignificant undercurrent of opinion that says we should be struggling to understand "root causes" of radical Islam--with the clear implication being that American-style classical liberalism (as amended!), and all its evil effects on the world, are the "root causes." There's still a subset of liberals that's just incapable of making sound moral judgments. (Not that there isn't a similar subset of conservatives.)

.............................................

I'd like to add another voice of agreement with you on this one. I had similar conversations with liberals pre-1989. One I particularly remember is my high school AP comparative government teacher in the fall of 1989; he argued at length that we shouldn't judge; that the people of not only the Soviet Union but of Eastern Europe had chosen a system of greater stability and safety than ours; and that Tiananmen Square may have been necessary from a Chinese perspective. In college in the early 90's, I continued to hear people claim that it wasn't communism that had failed, but Stalinism, and that Gorbachev was in the process of building the real, true, successful communism which would be better than either Stalinism or capitalism.

I would add, though, that I don't think this phenomenon is confined to liberals. I've heard pro-business conserv tives argue that the reformed Chinese communist party, Pinochet, Suharto, and Lee Kwan Hew's governments were leading their countries to bright futures and were better than democracy would be for them.

.............................................

. . . . I think many liberals saw socialism in theory as a noble ideal. (This view ranged from seeing it as a purely theoretical ideal that couldn't work in practice to something that might work in part (a la early labor England or Sweden) to something that might be made to work in the right circumstances.) From this perspective, the Soviet Union betrayed the ideal into something really evil under Stalin, got less bad under Kruschev, but still had not affirmative contribution to make to the noble ideal. By contrast, China and Cuba, despite flaws, still seemed to have a chance of developing (at least some of) the noble ideal aspects of socialism.

....................................

I was very much struck, when reading Joseph Heller's Good as Gold by his "proposal", put I think into Henry Kissinger's mouth, that as the USA is a good place to be rich and the USSR was a good place to be poor, we ought to exchange our poor for their rich. This is meant to be farce, of course. I do think, however, that as with Swift's Modest Suggestion, Heller thought his satire started with universally accepted truths. I think that the statement, if you are poor, you're better off in the USSR would have been accepted by many '70s and '80s liberals.
....................................

I just graduated from a rather liberal law school (I know that doesn't narrow it down a lot) in 2002. I was sitting in a class wholly unrelated to contemporary politics (it was actually about medieval Icelandic sagas) when I hear a classmate say "Communism was a good idea. It just wasn't put into practice right." I paraphrase the wording, but not the meaning. I think it's hearing stuff like that from otherwise well-meaning liberals today - he girl was about 22 at the time - that makes your posts about liberals defending the USSR so believable to me.

Yes, we all know that conservatives and libertarians can sometimes say objectionable things too, with which not all conservatives or libertarians agree. But (a) they should be and often are criticized for it (sometimes by other conservatives or libertarians), and (b) I am speaking about a pretty widespread phenomenon, not an isolated remark by a crazy person--though I took pains to attribute it only to some liberals.

Because the political principle "from each according to his abilities to each according to his need" appeals to many modern liberals--which accounts for many of their policy preferences--it is natural they would sympathize with a a regime that, in their mind at least, is founded on a more radical implementation of this principle, though they may regret what they think are the "unintended consequences" of these regimes, or they may conclude that it is impractical to take the principle that far--which is why they are themselves liberals and not communists.

This is no different than, because many libertarians are attracted to the "nonaggression principle" that more than a few libertarians are individualist anarchists--a phenomenon that no knowledgeable libertarian would deny whether or not he or she was himself or herself an anarchist--though, of course, anyone claiming that all libertarians were anarchists would obviously be mistaken.

Friday, January 23, 2004

 
[Eugene Volokh, 1/23/2004 09:40:36 PM]
Judiciary committee computer files scandal -- or is it? Jack Shafer at Slate takes a meta-look.

 
[Jacob Levy, 1/23/2004 08:30:05 PM]
Huh? David Edelstein, in his review of Win a Date With Tad Hamilton:

The gimmick of Win a Date With Tad Hamilton!, directed by Robert Luketic from a script by Victor Levin, is that the movie star's bacchanalian lifestyle is on the verge of derailing his career, so his agent (Nathan Lane) and manager (Sean Hayes)—both named Richard Levy, a joke that will certainly give a chuckle to Spike Lee, Franco Zefferelli, Mel Gibson, and a few others...

Can someone help me out here? Is there a producer, or someone, named Richard Levy? Just curious, as it happens to be my grandfather's name. What's so funny about it to Hollywood insiders?

UPDATE: Asked and answered; thanks to everyone who e-mailed. What those three have in common is outstanding charges of anti-Semitism against them, so the idea that Hollywood is run by interchangeable Jews, etc etc. Nothing to do with that particular Jewish name.

 
[Eugene Volokh, 1/23/2004 01:12:20 PM]
More from the Omaha principal: From the Omaha World-Herald:

Two Westside High School students say they were using satire to make a point: The school shouldn't have a special award to recognize the achievement of black students.

Trevor Richards, the Rambo twins' choice for Westside High's "Distinguished African American Student" award, moved from South Africa to Omaha six years ago.

That's why Paul and Scott Rambo, 16-year-old juniors, blanketed Westside on Monday with posters touting a white youth from South Africa for the "Distinguished African American Student" award.

"The posters were intended to be satire on the term African-American," Scott Rambo said.

The resulting flap left all three boys suspended from Wednesday's classes and drew national attention to the mostly white school. The Rambo twins stand by their actions, keeping them at odds with Westside officials.

"It's disruptive," Westside Principal John Crook said. "It was offensive to the individual being honored, to people who work here and to some students."

Crook defends the idea of giving a special honor to a top black student. Those who feel otherwise should have talked to him, he said, rather than upsetting the tone of Martin Luther King Jr. Day with posters that some viewed as mocking. . . .

Paul and Scott Rambo . . . spent weeks discussing the unfairness of an award solely for blacks. Blacks are eligible for every other award at Westside, they figured, so what was the point of a special honor? . . .

"They were pointing out an absurdity with an absurdity," said Michael Duffy, a junior who said he was reprimanded for collecting more than 160 signatures in support of the three boys. "That is the basic rule of satire."

But Principal Crook said the timing and the nature of the posters was insensiti e, preventing a healthy dialogue.

"My role is to make sure we have a safe environment, physically and psychologically," he said. "We can't allow that kind of thing to be hung up on our walls." . . .

Duffy said the incident is forcing Westside to face racial issues that sometimes are ignored.

Crook agreed. "Obviously, it's a teachable moment. We all need to be more sensitive."

(Thanks to reader Patrick Charles for the pointer.)

     Well, it is a teachable moment: A good moment for teaching that school officials are bound by Tinker v. Des Moines (1969), the Court's leading First Amendment case on speech in public schools.

     Tinker, which upheld students' rights to wear black armbands as an anti-Vietnam-War protest -- a highly contentious position, which many other students doubtless disagreed with -- wasn't limited to "sensitive" speech, or to speech that maintains a "psychologically" "safe environment," or to speech that fosters what principals view as "healthy dialogue," or even speech that avoids "mocking" or "upsetting the tone" of a holiday. (See here for a few more legal details.) Tinker did allow for the restriction of genuinely disruptive political speech, but only if there was evidence of real disruption to school activity, and not just some people being offended by the viewpoint that the speech expresses.

     There are actually reasonable arguments for why K-12 schools should have complete authority over in-school speech. Justice Black's dissent made those arguments. But it was a dissent; the majority squarely disagreed with Justice Black -- and, I think, with the position that Principal Crook espouses.

 
[David Bernstein, 1/23/2004 01:10:34 PM]
Bay Area Hotel Recommendation: Continuing today's consumerist theme, I had a great experience last weekend at the Holiday Inn Express in Mountain View, Ca. Having stayed on Holiday Inn Expresses before, I wasn't expecting much, and only stayed there because the rest of my extended family was staying there for a bat mitzvah celebration. It turned out to be one of the nicest places I've ever stayed. Great room, with free high speed internet access (they would even lend you a laptop!), VCR, DVD, CD, nice toiletries, sink, stove, and refrigerator; nicer than a typical Westin, except no bathrobes. The Continental breakfast was far above the norm for such things, the lobby had two computers available with high-speed internet access 24 hours, a coffee machine with various high-end drinks available free 24 hours, an extremely helpful staff; I could go on and on. I moved on to the AAA 4-Diamond Sheraton Fisherman's Wharf in San Francisco, which wasn't half as nice. (Edit: And the HI Express was only $85 a night!)

 
[Sasha Volokh, 1/23/2004 11:20:45 AM]
Moving your stuff? Hanah and I also didn't have a great experience with Giant Van Lines, which picked up Hanah's stuff from Arlington, Va., on December 30, and didn't deliver it until over 2 weeks later, when they had predicted 3-5 days. Also, they damaged a bookshelf and a dresser, and didn't put the bed together properly.

 
[Eugene Volokh, 1/23/2004 11:14:52 AM]
Moving your car? Avoid A AAAdvantage Auto Transport, and National Auto Transport, which is the broker that set us up with A AAAdvantage.

     Our car was picked up from Boston on Dec. 29, and didn't arrive in L.A. until three weeks later, Jan. 20. My wife was told that it didn't even leave Boston until Jan. 9. The contract said the expected delivery time was 8 to 10 business days, though it acknowledged that it might take more; so they weren't in violation of the contract. But it still seems to me that three weeks to move a car cross-country (at least 4 business days than they said was likely) is way too long.

     A AAAdvantage also didn't communicate well with us -- on Jan. 12, for instance, they told us that the car would be arriving at the L.A. terminal on Jan. 15, and the L.A. terminal would then call us to schedule a delivery, perhaps for Jan. 16, if we were lucky. But no-one called on the 15th. No-one called on the 16th. Finally someone called on Sunday, Jan. 18, when we were out of town, to say that the car had arrived. So not only was there an extra 3-day delay, but they didn't even call us on the 15th (the date they gave us) to warn us that there would be a delay.

     On top of that, A AAAdvantage tended to blame miscommunications on National, which is the company with which we had our contract, and which routed the job to A AAAdvantage. In my book, that's pretty unprofessional, and reflects badly on both companies. I think that's probably a sign that it's better to deal directly with the mover, rather than with brokers like National, which is what we'll do in the future. But in any case a mover that really cared about customer service would realize that customers rightly expect the contractor and the subcontractor to be properly communicating, rather than pointing the finger at the other one.

     In an case, just a warning to readers. We certainly won't be dealing with either of these companies again in the future, and you might want to avoid them as well.

 
[Sasha Volokh, 1/23/2004 11:10:30 AM]
Hanah discusses e-mail forwarded rants and anti-spam laws.

 
[Eugene Volokh, 1/23/2004 10:38:23 AM]
Retiarius: My friend Jack Schaedel passes along this word of the day, from the people who came up with one word for "to kill every tenth person as a means of collective punishment."

UPDATE: Sasha tells me that, etymologically speaking, "retiarius" more or less corresponds to "netster." So maybe in a sense we are all retiarii.

 
[David Bernstein, 1/23/2004 10:03:57 AM]
You Can Say That! Overlawyered reports that two Southwest Airlines customers lost their "hostile racial environment" lawsuit based on offense taken when they heard a flight attendant say "einee meinee mienee moe," a portion of a rhyme that has long since lost any trace of its racist origins ("catch a tiger by the toe," the only version I've ever heard, was once "catch a nigger by the toe"; neither line was used by the flight attendants, who said "catch a seat, we gotta go"). While it's nice to see a sensible outcome from the trial, let's give blame where it's due, too--the judge should have tossed this case out on summary judgment, and spared Southwest the expense of the trial. Instead, Judge Kathryn Vratil ruled, "The court agrees with plaintiffs that because of its history, the phrase 'eenie, meenie, minie, moe' could reasonably be viewed as objectively racist and offensive." Come on! There was no evidence of intent to discriminate, the phrase einie meenie etc. certainly isn't objectively racist, and how can "offensiveness" be objective? Besides, merely being offended by a stray comment does not mean someone has suffered discrimination under the law. I think I will be sending Judge Vratil a free copy of You Can't Say That!

 
[Eugene Volokh, 1/23/2004 09:34:09 AM]
e a bit too far.

     And while in other areas, such as interpretation and application of law, appellate judges theoretically review the trial judge's ruling from scratch, the trial judge's ruling is still tremendously important, and as a practical matter involves a great deal of discretion. There's thus vast room "for subtle life-experience biases" in decisions by judges. I have no strong opinions about peremptory challenges generally, as to judges or jurors; but I think this basis for distinguishing judges and jurors doesn't uite work.

UPDATE: Reader Vince Lombardi (the coach's grandson) writes:

Just to follow-up on your post of the California practice of being able to get rid of one judge per case. We have the same approach up here in Washington state -- we call it an "affidavit of prejudice." Each side gets one affidavit per case.

Despite the name, you really don't have to explain why you think the judge is potentially biased against you. You can only affidavit the judge at the beginning of the case -- after the judge makes a discretionary ruling of any type, the right to strike the judge is no longer available. The reason for this restriction is doubtless obvious -- we don't want litigants dumping a judge just because they don't like the most recent ruling.

I think it's a good practice. First, it is used very rarely. We all worry that a judge is going to take offense at being "affidavited" and tend to avoid doing it unless it's absolutely necessary to protect a client. Indeed, many larger firms require individual lawyers to get prior approval from management or a committee before striking a judge.

Second, it's a good way to track what lawyers think about a particular judge. In many of our Counties, statistics are kept regarding how many times a judge is affidavited. When a particular judge is struck more often than the mean over a period of time, it's a pretty good indication of what the bar thinks about the judge's abilities and fairness.

Finally, I think it curbs -- a bit -- the tendency to black-robe syndrome.

Just one practicing lawyer's two cents. Love the site, keep up the great work.

I'd never heard the phrase "black-robe syndrome" before, but I think I can guess what it means.

FURTHER UPDATE: Patterico likewise argues that judges have tremendous discretionary authority, especially given the limitations that California law i poses on pretrial appeals.

     Eric Muller also asked whether race-based peremptories of judges could be challenged much like race-based peremptories of jurors; he suggests that even if there is a constitutional ban on such peremptories, in practice it couldn't be enforced, since each side gets only one challenge, so one can't really show a pattern of race-based strikes. Patterico responds.

     Here's my thought: Lawyers might want to challenge jurors partly based on the juror's race or sex (set aside whether it's right or constitutional, and just focus on whether they'd want to) because often that's one of the few things they know about a juror, and because they may have only a few moments in which to decide whether to accept a juror or not. They generally know much more about the judge, or can at least find it out within the time allotted to decide whether to challenge him. Considering the judge's race and sex is thus going to be much less useful than considering a juror's race or sex.

 
[Eugene Volokh, 1/23/2004 09:05:37 AM]
What, no bracha? "Israel Rabbi Offers Prayer for Web Porn Browsers":

"Please God, help me cleanse the computer of viruses and evil photographs which disturb and ruin my work . . ., so that I shall be able to cleanse myself (of sin)," reads the benediction by Shlomo Eliahu, chief rabbi in the northern town of Safed.

(Thanks to GeekPress for the pointer.)

UPDATE: Reader Michael Zorn suggests that "perhaps there's a tallit that can be placed around the computer."

 
[David Bernstein, 1/23/2004 08:29:19 AM]
More on Matrilineal Descent in Judaism: Orthodox Jewish readers have written in to defend the proposition that since Sinai, descent in Judaism has always been matrilineal. For the Orthodox take on the issue, as well as a good example of how traditional rabbinic scholars analyze an issue (essentially reasoning backwards to find plausible language in the Torah supporting the idea that a custom or law has always existed in Judaism, but ignoring contrary historical evidence), see here. I don't have any links handy (UPDATE: Here is a Conservative rabbi's take, including his acknowledgement of the historical changeover, based on the research of Prof. Shaye Cohen), but my understanding of the actual history of the issue is that, as another correspondent put it, matrilineal descent came in Roman times (or approximately 1,000 years after Sinai), and was consistent with, and perhaps influenced by, Roman practice.
UPDATE: Eric Rasmusen raises an issue that I thought of, but was too lazy to write up: if one chooses to solely rely on biblical sources, and descent was matrilineal in prophetic times, why were Ruth the Moabite's descendants considered to be Jews? I'm sure the rabbis would say that Ruth "converted," but that's pretty clearly a post-hoc rationalization.
Eric also points out that Barry Goldwater's father was Jewish, and therefore "a Jew" patrilineally, but Goldwater was raised Christian, and never identified himself as a Jew, so I know of no modern Jewish movement that would consider Goldwater to be a Jew.

 
[Eugene Volokh, 1/23/2004 07:55:01 AM]
Religious beards may now be banned in French schools, says Education Minister Luc Ferry (thanks to Hit & Run for the pointer):

Discussing the plan to remove Islamic headscarves from state schools, he told a communist deputy who asked about a pupil with a beard, "As soon as it becomes a religious sign and the code is apparent, it would fall under this law." . . .

Sikhs -- of whom there are over 5,000 in the Paris area -- also wear beards because they do not cut their hair. Ferry said they might still be able to wear discreet turbans to school but did not mention their facial hair.

Seems like a textbook case of religious persecution.

 
[Eugene Volokh, 1/23/2004 07:45:38 AM]
American Family Association changes its mind: Late last month, I blogged (emphasis added):

Julian Sanchez at Reason's Hit & Run reports:

The American Family Association is running a meaningless online poll on attitudes about gay marriage which, they say, they'll be sending to Congress. Presumably, they thought selection bias (who goes to the AFA website, after all?) would yield a huge margin against gay marriage. Except, so far, it's not quite working out. I'm dying to see them forced to send a "petition" to Congress showing upwards of 60 percent support for gay marriage, with another 8 to 10 favoring at least civil unions. That, or watching them try to weasel out of doing so. Have fun. (Hat tip: Amy Phillips.)

Makes sense to me -- people who run meaningless online polls (and who, I suspect, were intending to promote the poll as if it were meaningful) deserve to have them equally meaninglessly backfire.

UPDATE: As I expected, there was an obviously non-AFA e-mail circulating urging supporters of gay marriage to vote at the AFA site; a reader was kind enough to forward it to me. (The e-mail also said that it was urging people to vote whatever their views, since "The point here is to have a LEGITIMATE cross section of people voting in this poll"; but even if this claim was sincere, it was unsound, since no matter who got the e-mail and acted on it, the result would almost certainly not be a "legitimate cross section" in the sense of a representative cross section.)

     So the AFA wanted a poll that was unrepresentative because it mostly reflected the views of the unrepresentative chunk of the population that visits the AFA site. Instead, it got a poll that was unrepresentative because it largely reflected the views of the unrepresentative chunk of the population that got the e-mail. Bunk either way, but at least the way it turned out it's bunk that hoisted the original would-be bunk perpetrators with their own petard.

Survey says . . . weaseling out. Wired News reports (thanks again to Sanchez at Hit & Run for the pointer) that

[AFA representative Buddy Smith said:] "It just so happens that homosexual activist groups around the country got a hold of the poll -- it was forwarded to them -- and they decided to have a little fun, and turn their organizations around the country (onto) the poll to try to cause it to represent something other than what we wanted it to. And so far, they succeeded with that."

Of course, no such poll can be said to represent an accurate picture of popular opinion. But, clearly, the AFA had hoped Congress would take the numbers it planned to produce as exactly that kind of evidence.

Now, Smith says, his organization has had to abandon its goal of taking the poll to Capitol Hill.

"We made the decision early on not to do that," Smith admitted, "because of how, as I say, the homosexual activists around the country have done their number on it."

Oh, how horrible! Those "homosexual activists" have "done their number" on the poll, so it represents what "the homosexual activists" believe, as opposed to what the anti-homosexual activists believe. At least I like the candor: The gay activists have tried "to cause [the poll] to represent something other than what we [the AFA] wanted to." Not other than an accurate estimate of public views, which the AFA poll would never have yielded -- just other than what the AFA wanted.

     Now naturally the AFA is perfectly entitled not to report these results to Congress. And we're perfectly entitled to be amused by how perfectly their plan backf red. 'Tis the sport, indeed.

 
[Eugene Volokh, 1/23/2004 06:36:38 AM]
States' rights approach to proposed Federal Marriage Amendment may be working: An ABC News/Washington Post poll reports, to my pleasant surprise (see here for my fears to the contrary), that the question "Would you support amending the U.S. Constitution to make it illegal for homosexual couples to get married anywhere in the U.S., or should each state make its own laws on homosexual marriage?" yields 38% in favor of amending the Constitution, and 58% against.

     This is so even though the question "Do you think it should be legal or illegal for homosexual couples to get married?" yields 55% "illegal" and 41% "legal," and a December 2003 CBSNews/New York Times poll question "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage ONLY between a man and a woman?" yielded 55% "favor" and 40% "oppose." Nice to see that throwing in a focus on state-by-state decisionmaking seems to make a difference (I don't think that the passage of time from December to January was the cause of the shift).

     Incidentally, several law professors and I sent a letter to a Senate subcommittee last September, opposing the FMA on these very federalism grounds; the text of the letter is here.

 
[Randy Barnett, 1/23/2004 06:00:58 AM]
was himself a liberal democrat--rarely experienced the sort of arguments that conservatives heard from some liberals. Perhaps he did not even know any conservatives, so he did not experience the sorts of debates that provoked this response. Perhaps these arguments did not impress him as they did me given his solidarity with his liberal friends. Who knows?

Be that as it may, Bruce Ramsey of the Seattle Time, remembers defenses of communist regimes -including China and Cuba--exactly as I do, almost word for word. We are either both deluded in our recollections, this is an amazing coincidence, or the phenomenon was quite real and pervasive--again among some liberals:

Your memory of liberals is right. I am 52, old enough to remember liberals being that way. They were not Marxists, nor professional liberal spokesmen like Harry Truman, but ordinary emotional Americans who, on this subject, would go all nonjudgmental. Who were we to judge a China that kept everybody fed, or a Cuba that taught everybody to read? How can we say it's better to live in a society with eight different brands of toothpaste? We can afford to live in a society that spends $XX billion a year on dog food and women's cosmetics and chewing gum. The Chinese need to make sure everybody eats--and communism does that. Under Chiang they starved, under Mao they eat. Communism wouldn't work here, but it's the right system for them. A bit harsh maybe, but it's better than starving. Besides, we had exterminated the Indians, enslaved the blacks, imprisoned the Japanese Americans. Who were we to get all high and mighty? What arrogance.

The general line was that any American who argued against communism in Russia, China, Cuba, etc., was failing to see it from their point of view. After all, they had chosen communism, had they not? And they must have had a reason for it. Let us respect their choice, because in their circumstances we would have chosen it, too.

I remember all that. It does not surprise me that people have forgotten it.

After 1989, everyone except a communist had been an anticommunist before. Just ask my liberal correspondents.

PS: In case anyone is wondering, I consider "liberal" to be an honorable word, and in The Structure of Liberty: Justice and the Rule of Law, I call the approach I favor the "lib ral conception of justice." For many years I called myself a "classical liberal"--which indeed I am--until I decided it was confusing some people and others thought I was obfuscating. Indeed, one of my complaints about modern liberals these days is that you cannot count on them to be as genuinely liberal as they used to be when you need them to be. But that is another topic.

 
[Juan Non-Volokh, 1/23/2004 05:17:26 AM]
Big spenders (continued): In reference to Wednesday's post, "We're All Big Spenders Now," some readers believe the comparison between Bush's spending increases and Democratic proposals are unfair, because neither is necessarily a reliable indicator of future spending patterns. Under one theory, a Democratic president facing a Republican Congress will be forced to exercise spending restraint, resulting in lower overall spending growth than when a Republican President and Republican Congress join together for a spending splurge (as has happend over the last three years). Perhaps. It is certainly the case that after the Republican take over of Congress, spending was held in check -- but this only lasted through 1998. During the last two years of Clinton's presidency, the Congressional appropriators regained control of the ship and began spending like drunken sailors. So, in my view, divided government is no guarantee of fiscal restraint.

For more on the comparison of Bush and the Democratic contenders on spending, see the ruckus started by Big Dog over at Tacitus' blog.

Thursday, January 22, 2004

 
[Sasha Volokh, 1/22/2004 06:37:12 PM]
Another note on defending the USSR: Let me put in a note about another aspect of the fall of Communism. Many people on "my side" have suggested that the fall of Communism tells us something meaningful about the feasibility of American-style leftism or Western European-style social democracy -- either that it should make liberals revise their predictions of the economic impact of their proposals, or that it should make liberals think twice about the ethics of their philosophy. I think that the fall of Communism tells us very little directly on either of these points.

 
[Sasha Volokh, 1/22/2004 06:31:55 PM]
On defending the Soviet Union: Randy's correspondent wanted some smoking-gun quotes by mainstream liberals. I don't have such a source handy (though I, too, have encountered mainstream people taking that line). But I did come across this article which collects sources by very well-respected mainstream liberal economists (Samuelson, who defined the profession for a time, and Thurow and Galbraith of the MIT and Harvard economics departments, quite liberal but not fringe).

Whatever you think of Dinesh D'Souza, who wrote the article, and his assessment of Reagan, the quotes are real:

John Kenneth Galbraith, the distinguished Harvard economist, wrote in 1984: "That the Soviet system has made great material progress in recent years is evident both from the statistics and from the general urban scene. . . . One sees it in the appearance of solid well-being of the people on the streets . . . and the general aspect of restaurants, theaters, and shops. . . . Partly, the Russian system succeeds because, in contrast with the Western industrial economies, it makes full use of its manpower."

. . . Paul Samuelson of the Massachusetts Institute of Technology, a Nobel laureate in economics, writing in the 1985 edition of his widely used textbook: "What counts is results, and there can be no doubt that the Soviet planning system has been a powerful engine for economic growth. . . . The Soviet model has surely demonstrated that a command economy is capable of mobilizing resources for rapid growth."

. . . Lester Thurow, another MIT economist and well-known author . . . , as late as 1989, wrote, "Can economic command significantly . . . accelerate the growth process? The remarkable performance of the Soviet Union suggests that it can. . . . Today the Soviet Union is a country whose economic achievements bear comparison with those of the United States." br />

This doesn't fully respond to the request for more general ethical defenses of the Soviet Union, but it's not too far off, since this is the sort of thing that economists care about.

 
[Randy Barnett, 1/22/2004 05:48:28 PM]
More on Defending the USSR: In response to my earlier post, Volokh on USSR, in which I related my experience as a student with some of my liberal classmates defending the USSR, a reader offers a predictable response:

Now, I can remember, from my college days, a number of campus radicals of various stripes (Spartacists, RCP's, even, ridiculously enough, self-proclaimed anarchists) who spewed this sort of drivel from time to time, but I do not recall any "liberals" making such statements; indeed, I recall that the prevailing view was that Soviet Communism, as a system, primarily focused on who would be putting the boot in whose neck at any given time, and had simply failed as a viable economic system. Indeed, if one were to publicly hold oneself forth as a liberal (by, for example, working for a Democratic candidate) in the presence of the aforementioned radicals, one could count on a deluge of invective describing oneself as a traitor, fascist, lapdog and worse. . . .

As a matter of further confusion, I fail to understand, as a logical proposition, how one could on the one had identify oneself as a liberal (meaning a capitalist who believes in a significant degree of governmental regulation of industry and the provision of social programs by the government) while simultaneously endorsing communism; a communist is, by definition, not a liberal. As Mr. Barnett insists this is nonetheless the case, can he point us to written examples of liberals (not Marxists, Maoists, etc.) expressing in writing a preference for the Soviet system?

There are a number of responses. The most obvious is that this was personal narrative of my experience growing up. Perhaps the reader did not experience this reaction because he did not challenge the USSR, proclaim his support of capitalism, or defend the US, in the presence of some of his liberal fri nds. If they were not provoked, they might not have revealed these sentiments to him. Who knows why he did not experience what I did from some of his liberal friends?

But we don't have to travel down memory lane. My son's college-age friend who expressed regret that communism in Cuba would end with Castro's passing is not a 'Spartacist, RCP or self-proclaimed anarchist.' He is just an intelligent but deluded liberal like those of some of my classmates from grade school through law school. That these expressions of sympathy were not put into writing does not make them any less real.

I should also add that I was deliberately careful in my original post to attribute this to some of my liberal friends, though I can assure the reader that it was enough that I came to expect these responses and needed to develop counter arguments to meet them. There is no question that many hard core liberals, especially liberal politicians such as Truman, Kennedy and Humphrey to name just three, were also anticommunists--indeed leading anticommunists who did indeed take grief from radical leftists. These politicians needed not only to be elected by a generally anticommunist public but also to govern in the midst of the cold war and there is no doubt they were truly anticommunist. But I was speaking of ordinary liberals without such responsibilities, not sparticists, who while supporting these politicians nevertheless in private conversation and debate would articulate exactly the sentiments I related earlier: Although perhaps a bit behind in material things at present, the USSR was a more fair and just society reflecting a value judgment by its people that placed equality above consumerism and the accumulation of needless riches. Who was to say that its people were not happier than ours (implying without actually asserting that they were)? And they either doubted the abuses of power known to exist there, or excused it as necessary temporary expedients on the path to a pot ntially better society--just the way so many liberals today cut Castro the slack they would never cut a noncommunist tyrant.

 
[Eugene Volokh, 1/22/2004 04:14:22 PM]
Presidential candidate embraces author of book called "Stupid Black Men": Oh, sorry -- my mistake; it's actually called Stupid White Men. Funny how an author who wrote a book Stupid Black Men (not as an ironic title) would be rightly reviled, while when he writes Stupid White Men, we hear barely a peep? In any case, the author's documentary also apparently includes fiction mixed in with the fact. (Warning: I have not personally checked the assertions on that page, but I've found David Hardy, and others who have made similar claims, to be quite trustworthy; here's a similar page on Stupid White Men.) And the author has also apparently slammed the very military campaign that is one of the key items on the presidential candidate's resume. Slate reports on this third item:

[Wesley] Clark embraced [Michael] Moore's support, calling the best-selling author a "fantastic leader." In the press release, Clark's campaign lauded -- in the first line no less -- the "Academy Award winning director," whom the general himself described as an "enormous talent." For his part, Moore promised to do everything he could to help get Clark elected.

Moore hasn't always been so taken with Clark, at least if his Oscar-winning film Bowling for Columbine is to be taken at face value. Indeed, the documentary repeatedly slams the shining moment in Clark's career: stopping Serb aggression in Kosovo, the highlight of his tenure as NATO supreme allied commander. In fact, Moore suggests that the bombing tactics employed by NATO—and thus Clark—were in part to blame for the massacre at Columbine.

An intriguing theory, to say the least. Moore starts the case against Clark in the opening monologue of the film. "It was the morning of April 20th, 1999," our narrator i ce, more carnage: "On the hit list were [a] local hospital and primary school."

Another subtitle reads: "One hour later."

Back to Clinton: "We all know there's been a terrible shooting at a high school in Littleton, Colorado. ..."

The connection is clear—the Columbine shooting coincided with the Kosovo bombing, violent acts that happened on the same date. One was committed at the hands of two disturbed teenagers, the other on the orders of Wesley Clark. . . .

Moore anticipated criticism of his pick. In his endorsement letter, he headed off attacks from readers who might be inclined to e-mail comments like "Mike! He voted for Reagan! He bom ed Kosovo." Moore assures them that Clark is now staunchly "anti-war." (Forget the 30-year Army veteran's authorship of Winning Modern War and Waging Modern War.)

Read the Slate piece for more on Bowling for Columbine -- though the article is limited to the view-about-Kosovo question, and doesn't address the factual criticisms of Bowling, or the little Stupid White Men matter.

 
[Eugene Volokh, 1/22/2004 03:43:50 PM]
Law clinic for legal assistance to servicemembers: Michael Krauss, a law professor at George Mason University, reports:

I am proud and pleased to announce that the Clinic for Legal Assistance to Servicemembers (CLAS) has now been organized and is operating. The executive director, Joseph Zengerle, is a West Point grad and Viet Nam vet, as well as being a tremendous guy (and, yes, a lawyer).

I encourage you to spread the news of the creation of this clinic to all those you think might be interested. An account has been set up for CLAS at the GMU Foundation. If anyone wishes to contribute, checks should be made payable to the George Mason University Foundation, with the cover letter specifying that the donation is earmarked for CLAS.

You can reach Joe [at George Mason University School of Law, 3301 North Fairfax Drive, #404, Arlington, VA 22201] . . ., or by email at jzengerl [at] gmu.edu.

Joe Zengerle further reports (as you might gather, they don't yet have a Web site, or I'd be linking to it):

George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with t e clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.

I had the pleasure of visiting at George Mason in Fall 2001; it's an excellent law school, and seems like a great home for this sort of project.

 
[Eugene Volokh, 1/22/2004 03:35:05 PM]
Centrally control, regulate, and clean up the Internet: Here's part of the Royal Society for the Prevention of Cruelty to Animals reaction to the notorious bonsaikitten.com hoax site:

Unfortunately, the worldwide web is not controlled or regulated centrally. There is not, therefore, any central authority to which we can complain about this, and other such sites. The RSPCA has written to the Internet Service Providers (ISP) who are hosting this particular site to express our concerns and to ask them to close the account with immediate effect.

One of the key problems is the international nature of the internet as well as the fact that it is increasingly easy for individuals to set up websites quickly and cheaply. National authorities are looking at ways of controlling material on the internet and there are many moves under way to try to create legal and practical ways of regulating the web and cleaning it up.

 
[Eugene Volokh, 1/22/2004 03:34:30 PM]
Be good to insects: The Royal Society for the Prevention of Cruelty to Animals is apparently complaining about cruelty to insects ("maggots, cockroaches, . . . and ants") on a TV show, the Times (London) reports, as well as cruelty to rats. The Daily Ablution has more on this. The RSPCA is a private charity, but as best I can tell it seems to play a significant role in law enforcement as well; I do not know what English and Australian laws regarding proper behavior towards insects are.

 
[Eugene Volokh, 1/22/2004 03:05:01 PM]
Samuel Beckett? Slate's Chatterbox reprints a transcript of a conversation between reporters and President Bush at a ribs diner in Roswell, N.M.. Chatterbox's reaction: "Today's lunchtime press 'pool' transcript from the Nothin' Fancy Caf? in Roswell, N.M., was scripted by Samuel Beckett." My reaction: This is a savvy politician (1) having some fun with the journalists (and I don't mean angry scream fun, but friendly sparring partner fun), and (2) nimbly dodging questions that he quite understandably doesn't want to answer in this environment (why on Earth would he want to respond to "What do you think of the Democratic field, sir?"?), a skill that politicians must have to survive. (Note that I'm not trying to overpraise the President here -- you can say what you will about the quality of his policies; I'm saying only that the interchange is evidence of his political savvy rather than of his postmodernism.) You decide for yourself (and feel free to say that it's a floor wax and a dessert topping); here's the transcript:

Remarks by the President to the Press Pool
Nothin' Fancy Cafe
Roswell, New Mexico

11:25 A.M. MST

THE PRESIDENT: I need some ribs.

Q Mr. President, how are you?

THE PRESIDENT: I'm hungry and I'm going to order some ribs.

Q What would you like?

THE PRESIDENT: Whatever you think I'd like.

Q Sir, on homeland security, critics would say you simply haven't spent enough to keep the country secure.

THE PRESIDENT: My job is to secure the homeland and that's exactly what we're going to do. But I'm here to take somebody's order. That would be you, Stretch -- what would you like? Put some of your high-priced money right here to try to help the local economy. You get paid a lot of money, you ought o be buying some food here. It's part of how the economy grows. You've got plenty of money in your pocket, and when you spend it, it drives the economy forward. So what would you like to eat?

Q Right behind you, whatever you order.

THE PRESIDENT: I'm ordering ribs. David, do you need a rib?

Q But Mr. President --

THE PRESIDENT: Stretch, thank you, this is not a press conference. This is my chance to help this lady put some money in her pocket. Let me explain how the economy works. When you spend money to buy food it helps this lady's business. It makes it more likely somebody is going to find work. So instead of asking questions, answer mine: are you going to buy some food?

Q Yes.

THE PRESIDENT: Okay, good. What would you like?

Q Ribs.

THE PRESIDENT: Ribs? Good. Let's order up some ribs.

Q What do you think of the democratic field, sir?

THE PRESIDENT: See, his job is to ask questions, he thinks my job is to answer every question he asks. I'm here to help this restaurant by buying some food. Terry, would you like something?

Q An answer.

Q Can we buy some questions?

THE PRESIDENT: Obviously these people -- they make a lot of money and they're not going to spend much. I'm not saying they're overpaid, they're just not spending any money.

Q Do you think it's all going to come down to national security, sir, this election?

THE PRESIDENT: One of the things David does, he asks a lot of questions, and they're good, generally.

 
[Jacob Levy, 1/22/2004 03:04:58 PM]
The New Hampshire primary in action: According to CNN,

Clark, meanwhile, took a few minutes to bag groceries at a Goffstown supermarket Thursday. Cashier Carolyn Creeden said the former NATO supreme commander was "pretty good at it," despite dropping a woman's bag of cookies during a discussion of the new Joint Strike Fighter.

UPDATE: David Plotz's piece is also dead-on.

Every New Hampshirite is liable to stumble across a candidate now and then—"Can you spot me on the bench press, General?"—but most don't seek out candidates. It's a small posse who drive the process. There are 1.3 million people in New Hampshire, but only 10 percent of them will vote in the Democratic primary, and only a tiny fraction of them are actively participating. The same people attend event after event. I have started to recognize them, or at least the types: the Medicare crank, the corn subsidies bore, the property taxes man ...

 
[David Bernstein, 1/22/2004 02:42:56 PM]
Separated at Birth? Andrew Jackson and John Kerry.

 
[Eugene Volokh, 1/22/2004 01:56:49 PM]
Blogger and lawyer Pejman Yousefzadeh should be on the radio in Southern California this afternoon (AM 600, around 4 pm), talking about the Do Not Call list.

 
[Eugene Volokh, 1/22/2004 01:55:27 PM]
Congress enacts school choice program for D.C.: The Institute for Justice, a leading defender of school choice programs reports that "[t]oday, the U.S. Congress passed an omnibus spending bill including authorization for a school choice program for low-income students in the District of Columbia." According to the details that the IJ put up,

The "D.C. School Choice Incentive Act of 2003" creates a five-year
scholarship program in the nation's capital for low-income, K-12 students, beginning in the 2004-05 school year. Congress allocated $13 million for the first year of the program and $1 million for related administrative and research expenses -- along with $13 million each for D.C. charter schools and D.C. Public Schools to implement Mayor Anthony Williams' three-sector education improvement initiative. . . .

Student Eligibility: D.C. residents who qualify for the federal free and reduced-cost lunch program (185 percent of poverty, or about $34,000 for a family of four in 2003). About 37,000 children will be eligible. Family income may rise to 200 percent of poverty before the scholarship is revoked. Priority is given to students in public schools “in need of improvement” under No Child Left Behind. The bill also encourages preferences for the lowest income families.

Selection Criteria: Students are accepted on a random basis.

Scholarship Value: Up to $7,500 or cost of tuition and fees, whichever is less. Participating schools may not charge scholarship students more than non-scholarship students.

D.C.P.S. Average Per Pupil Cost: $11,649 in 2000-01[.]

No. of Participants: Approximately 2,000. . . .

Evaluation and Accountability: The Secretary will also commission a five-year longitudinal study to evaluate the academic achievement of scholarship recipients, parent satisfaction, and other issu s.

Regulations for Private School Participation: Participating schools may not discriminate against scholarship applicants on the basis of race, religion, or ethnicity. Single-sex schools are allowed. . . .

 
[Eugene Volokh, 1/22/2004 12:25:36 PM]
percase">Letter from man who defended himself and his family: Dan Gifford points to this Chicago Sun-Times item:

[In late December,] someone broke into the DeMar family home in Wilmette through a dog door, stealing a television, an SUV and the keys to the home.

The next night, Hale DeMar was prepared for a return visit. With his children upstairs, DeMar, 54, shot burglar Morio Billings, 31, in the shoulder and calf, police said.

Billings was caught at a nearby hospital and charged with felony residential burglary and possession of a stolen car . . . .

DeMar was cited with breaking Wilmette's ban on handguns and with failing to update his firearm owner's identification card.

The misdemeanors are unlikely to bring jail time. Wilmette Police Chief George Carpenter did not criticize DeMar for protecting his family but said homes are safer without handguns.

DeMar, in a letter sent to the Chicago Sun-Times, is now speaking out:

Village Trustees ... Stick to Parade Schedules & Planting our Parks

Many of us have experienced a sense of violation upon returning to our homes, only to find that someone else has been there. Someone else has trespassed in our bedrooms, looting and stealing that which is readily replaced. Many of us, still haunted by that violation, will never again have a sense of security in our own homes. Few, however, have awakened to realize that they had been violated as they slept in their beds, doors locked, as family dogs patrolled their homes. For me, the seconds until I found my children still safely tucked in their beds were horrifying. The thought that a young child may have been hurt or abducted was incomprehensible.

The police were called and in routine fashion they came, took the report and with little concern left, promising to increase surveillance. Little comfort, since t e invader now had keys to our home and our automobiles. The police informed me that this was not an uncommon event in east Wilmette and offered their condolences.

What is one to do when a criminal proceeds, undeterred by a 90-pound German shepherd, an alarm system and a property ... lit up like an outdoor stadium? And now, he had my house keys and an inventory of things he'd like to call his own. Would the police patrol my dead-end street as effectively the second time as they had the first? Would my small children be unharmed the next time? Would the career criminal be satisfied with another automobile, another television or would he feel the need, once again, to climb the staircase up to the bedrooms, perhaps for a watch or a ring or a wallet, again risking little?

Would my children wake to find a masked figure, clad in black, in their bedroom doorway, a vision that might haunt them for years? Would the police come again and fill out yet another report, and at what point should I feel comfortable that the 'bad guy' got everything he wanted and wouldn't return again, a third time?

I went to the safe where my licensed and registered gun was kept, loaded it for the very first time and tucked it under the mattress of my bed. I assured my frightened children ''that daddy would deal with the bad guy ... if he ever returned.'' Little did I imagine that this brazen animal was waiting in the backyard bushes as I tucked my children into bed.

Fifteen minutes after bedtime, the alarm went off. Three minutes after the alarm was triggered, the alarm company alerted the police to the situation and 10 minutes later the first police car pulled up to my home, but only after another call was made to 911, by a trembling, half-naked father. I suppose some would have grabbed their children and cowered in their bedroom for 13 minutes, praying that the police would get there in time to stop the criminal from climbing the stairs and confronting the family in their bedroom, dreading the soun of a bedroom door being kicked in. That's not the fear I wanted my children to experience, nor is it the cowardly act that I want my children to remember me by.

Until you are shocked by a piercing alarm in the middle of the night and met in your kitchen by a masked invader as your children shudder in their beds, until you confront that very real nightmare, please don't suggest that some village trustee knows better and he/she can effectively task the police to protect your family from the miscreants that this society has produced.

This career criminal had been arrested thirty times. He was wanted in Georgia and for parole violations in Minnesota. How many family homes had he violated, how many innocent lives were affected, how many police reports went into some back office file cabinet, only to become some abstract statistic? How is it that rabid animals like this are free to roam the streets, violating our homes and threatening the safety of our children?

If my actions have spared only one family from the distress and trauma that this habitual criminal has caused hundreds of others, then I have served my civic duty and taken one evil creature off of our streets, something that our impotent criminal justice system had failed to do, despite some thirty odd arrests, plea bargains and suspended sentences.

Hale DeMar, Wilmette

 
[Eugene Volokh, 1/22/2004 11:44:10 AM]
Slam Scalia: As I've mentioned before, Dahlia Lithwick's "Supreme Court Dispatches" are generally a delight to read, and are often quite insightful. She's a very good writer, and a colorful one; and I realize that part of that color is the injection of her own viewpoints. Her piece yesterday on the latest Supreme Court advising-defendants-of-the-right-to-counsel case was particularly fun and informative.

     But then along comes this:

Scalia asks if it really serves the greater good to warn criminals that "if you got an attorney, he'd find some gimmick. . . . You have a right to know that you have the right to get off, even if you're guilty," adding, "We want people to admit they're guilty."

But Justice Scalia may want even the innocent to do that.

Huh? Why would Scalia possibly want the innocent to admit they're guilty?

     I assume the author must be joking, though that's largely because the line can't possibly be serious, not because it's particularly funny. Presumably the joke is of the "He's so pro-prosecution, damn-the-rules-just-lock-them-up that he'd even like the innocent to plead guilty" variety.

     Except the trouble is that such a joke can only be funny if it's in some sense apt -- if you're saying it about someone who really is in the pro-prosecution, damn-the-rules-just-lock-them-up camp, or close to it. But Scalia is most certainly not in that camp. Time and again, Scalia has actually shown himself to be a stickler for the rules, even when they help the defendant. See, e.g., Carella v. California (1990) (Scalia flanking Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Maryland v. Craig (1990) (Scalia flanking Blackmun on the left, as to the Confrontation Clause rights of accused child molesters, partly because of a concern about wrongful convictions of the innocent); County of Riverside v. McLaughlin (1991) (Scalia flanking Souter on the left, as to the Fourth Amendment rights to prompt probable cause hearing, partly because of a concern about wrongful detention of the innocent); Almendarez-Torres v. United States (1996) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury); Neder v. United States (1999) (Scalia flanking Breyer and in some measure Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Apprendi v. New Jersey (2000) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury). All but Apprendi were actually separate opinions (dissents or concurrences in the judgment) written by Scalia.

     Now of course Scalia also often votes against criminal defendants, and one can fault some or all of those votes. One can also argue that Scalia is sometimes too focused on the formal rules, and too tolerant of procedures that may comply with the formal rules and yet lead innocent people to be convicted. But it seems quite clear that Scalia is a big believer in following the rules, even when criminal defendants are benefited by this; and a pretty big believer in preventing i nocents from being wrongly treated as guilty, at least when the rules are on the innocents' side.

     So I don't see anything particular apt about the "But Justice Scalia may want even the innocent to do that" line. Even if it's intended to be a joke, it doesn't seem to be a particularly fair one. And it doesn't seem to be particularly funny, unless one thinks that any slam of Scalia is per se funny.

 
[David Bernstein, 1/22/2004 11:06:38 AM]
Times Have Changed: Justice Thurgood Marshall, dissenting in United States v. Roth (1972): "In my view, every citizen who applied for a government job is entitled to it unless the government can establish some reason for deny in the employment." It's hard to imagine a Justice writing this today. Reading USSC opinions from the early 1970s (the Court's liberal heyday) is always interesting, because the underlying assumptions, methodologies, etc., have changed so much.

 
[Jacob Levy, 1/22/2004 10:53:47 AM]
Chicago in midwinter: Michael Green gives a pretty good sense of what it's like.

If you're nearby and able to venture out of doors, however, you might want to come by this conference on constitutionalism in Israel and Palestine. Speakers range from distinguished North American academics such as Gordon Wood and Charles Taylor to supreme/ constitutional court justices from Australia and South Africa to legal academics, civil liberties activists, and former cabinet ministers from Israel and the PA.

 
[Eugene Volokh, 1/22/2004 10:22:30 AM]
Carol Moseley Braun supports right to bear arms: Edward Boyd reports, quoting OpinionJournal's Political Dairy (it's subscription only, so I haven't checked it myself):

. . . Before she withdrew from the presidential race, Carol Moseley Braun shocked a D.C. debate audience when she said she would sign a bill to repeal the District's gun ban. "I think under the Constitution people have the right to and should be able to have guns," she said. . . .

UPDATE: Matt Rustler confirms this from a Washington Times article, and comments further.

 
[Eugene Volokh, 1/22/2004 10:06:25 AM]
"Black" and "white": An amusing and insightful story from InstaPundit:

My brother -- who doesn't look any blacker than I do -- is sometimes asked by Nigerians (in Nigeria) whether he is black. At first he thought this was odd, but one explained "We have Americans coming here all the time who say they are black, but they look white to us."

 
[David Bernstein, 1/22/2004 09:59:32 AM]
Unplaced Bet: I wish I had gotten around to placing a bet against Howard Dean (and Clark) last week, when I was convinced that the likelihood of his winning the Democratic nomination was way overblown. I noticed that Iowa was still competitive, and considered that Iowa often offers a surprise, that Dean seemed to be faltering in a variety of ways, that sober Democrats would notice that Dean's chancing of beating Bush are slim, and that, if my hunches re Iowa were correct, once the aura of inevitably wore off Dean after a relatively poor showing in Iowa, the race would be wide-open. And I saw no great attributes to Clark, other than him not being Dean. Can't say I had any idea it would be Kerry that would emerge so strongly, though. (edited for poor grammar!)

 
[Randy Barnett, 1/22/2004 09:53:56 AM]
THE BUSH CONSPIRACY GENERATOR: From Buttafly.com:

Want to come up with your own conspiracy theory about Bush? Don't let Al Franken, Michael Moore, and MoveOn.org have all the fun! Use this handy George W. Bush Conspiracy Theory Generator to come up with your own conspiracy theory!*

* This tool may not be used to create Democratic presidential candidate speeches or generate content for MoveOn.org without the express permission of Buttafly.com.

 
[Tyler Cowen, 1/22/2004 07:44:11 AM]
Should you buy freedom for slaves? Readers of The New York Times Op-Ed page will know that Nicholas Kristof has recently purchased the freedom of two young girls in a brothel. It appears that the young girls were held there against their will and tricked or coerced into joining in the first place.

As an economist of course I wondered whether buying slaves will lower net enslavement. I can think of at least two general mechanisms suggesting that Kristof's purchase will increase the number of slaves in the longer run, or at least not lower the number of slaves:

1. Slaveholders and brothel owners presumably hold profit-maximizing inventories. Depletion of inventory will lead to replacement under a variety of assumptions.

2. I suspect that Kristof, a Westerner, overpaid for the two slaves. Slave owners expect such higher prices in the future, which may lead to more slaveholding. Furthermore the cash flow may stimulate investment in more slaves. Even for firms in advanced economies, current cash flow predicts investment better than does real interest rates.

Overall we can think of the slaveholder as more able and more eager to get more slaves. That being said, the marginal slaves will be harder to trick or capture than the previous slaves. So we cannot be sure whether net slavery will go up or down. Kristof's efforts also have a publicity effect, which may either help or hurt the slave trade. On one hand the Cambodian government may be embarrassed and crack down. On the other hand, the slaveowner has received amazing free publicity. On net, Kristof's actions may be less heroic than they would appear at first glance.

Michael Kremer of Harvard has done some interesting work on how to best stop elephant hunting. Sometimes the best solution is for a entral authority to buy up many elephant tusks and later dump them on the market, ruining the price and discouraging further tusk collection. I would not advocate that Kristof resell his two women back into slavery, just to lower future prices. Nonetheless such economic considerations once again illustrate the gap between doing something to feel good about oneself, and actually achieving useful results.

 
[Jacob Levy, 1/22/2004 07:24:49 AM]
Academia/ political theory news: Princeton's Provost, and my graduate school advisor, the political theorist Amy Gutmann, has been selected the next President of Penn.

 
[Randy Barnett, 1/22/2004 07:01:23 AM]
Volokh on USSR: Catching up after returning to town, I want to commend Eugene for his moving post yesterday on American supporters of the Soviet Union: A little bit of embarrassment seems to be in order. I would add that this support was widely advocated by some American liberals throughout my childhood and continuing up through college and law school in the 1970's. I was regularly told by classmates that the Soviet Union was a morally better place than the US. Although perhaps a bit behind in material things at present, it was a more fair and just society reflecting a value judgment by its people that placed equality above consumerism and the accumulation of needless riches. Who was to say th