Saturday, February 07, 2004

 
[David Bernstein, 2/7/2004 12:13:04 PM]
Sensitivity and "Offensive" Language: Below is a part of comment from the Comments section of Calpundit, arising from Kevin's link to my posting of the email by the woman who lost her job over the eenie, meenie, minie, moe, caption:

First is the reaction to Steve Kerr's recent comment on national television. During a broadcast on TNT, commenting on Yao Ming during a NBA game, Kerr referred to Ming as a "Chinaman." But it was clear from the context that the comment that he meant it in the same way as "Englishman" and "Frenchman" and seemed unaware of its racist implications. So what happened? 80-20, an Asian American PAC, was contacted by some Asian viewers of the remark. They sent word to Kerr privately to ask him to explain himself. Upon learning the connotations behind his remark, Kerr immediately apologized. Kerr has now committed to 80-20 that he will use whatever opportunities to speak out and educate people on racist speech, against Asians and otherwise. Indeed, immediately after the incident, Kerr wrote his weekly column on Yao Ming, giving a critical assessment and praise on his play and future.

Now, I've been in the very politically correct world of academia for sixteen of the last nineteen years, and I've written a book called "You Can't Say That!" which required me to read dozens of articles about speech and political correctness, yet I had no idea that the term Chinaman was considered offensive. Not that I ever use it, or have ever heard anyone use it (except, maybe once, hearing someone say "a Chinaman's chance"). To me, until now, I would have simply thought it archaic, like calling a Jew a "Hebrew" or an "Israelite" as was fashionable in the 19th century. (I've done some research on the Chinese in 19th century America, and "Chinaman" was simply what an individual Chinese was called, like "Englishman;") But there it is, in the American Heritage Dictionary, "Chinaman: Offensive: A Chinese Man." On the one hand, this shows that we should be sensitive to the language we use. On the other hand, it shows we shouldn't be oversensitive to the language we hear, as we can often misconstrue an innocent remark as a slur. As for Kerr, it was nice, and appropriate, of him to apologize, and even nicer to volunteer to become a spokesperson against "racist speech", but he certainly wasn't obligated to do the latter (beyond the normal moral duties one has on such things), and I hope "80-20" and its supporters don't think his innocent mistake argues otherwise.

 
[David Bernstein, 2/7/2004 11:21:10 AM]
Going to the Federalist Society Student Conference in Nashville? Word is that Priceline is accepting bids for rooms at the Nashville Sheraton Downtown for $39 per night, 2/20/-22. It's a mile and half away, so you'll need sturdy legs, a rental car, or money for a cab, but it's a AAA diamond hotel, and substantially cheaper than the hotel deals lined up by the Feds.
UPDATE: Gary Leff, author of the excellent Webflyer.com blog, writes elaborates:

The Sheraton Nashville Downtown is a 3* property in the Downtown - Vanderbilt University zone. If you bid 3* in that zone you might get the Sheraton. You might also get:

Wyndham Union Station
Doubletree Hotel Nashville
Holiday Inn Select Vanderbilt
Embassy Suites
Nashville Marriott at Vanderbilt University

(Not commenting on the likelihood of getting any of those on the particular dates of the Federalist Society conference -- that's a function of the availability at various price points each enters into their reservation system. Just noting that the Sheraton isn't the only possible hotel you might get off a Priceline 3* bid in that zone, as Priceline works with those (5) other properties there with the same criteria. In fact the Wyndham and the Doubletree both turn up successful bids at the low $40s.) Also worth noting that if your first 3* bid for a downtown property is
unsuccessful, there's no reason to wait 72 hours or change quality level or zone. You can actually bid again right away, just raising the price. Why? Because Nashville has several zones which don't offer 3* properties. Just add the North Nashville zone and bid again. Since North Nashville has no 3*, you're still really just bidding downtown. Unsuccessful again? Add South Nashville. Guess what? One more change -- add Antioch.

With 3 free rebids at the 3* level, you could easily bid $39 and then $44
and then $49 and then $54...

For a decent discussion of free rebids on Priceline, see:
http://hotels.about.com/cs/travelerstools/a/pricelinebid.htm

Also, if you're not familiar with it, you should check out
http://www.biddingfortravel.com where folks post their winning and losing
bids (more or less plotting the supply curve) and build a backend hotel
list.

 
[Eugene Volokh, 2/7/2004 11:00:20 AM]
Evolution of alphabets: Pretty cool. Thanks to GeekPress.

 
[Randy Barnett, 2/7/2004 06:47:50 AM]
How Will History Judge the Iraq War? Victor Davis Hanson has an excellent column in NRO, Weapons of Mass Hysteria. In it he offers a multi-part defense of the prudence and morality of the Iraq war. It won't convince the critics, of course, since no argument will at this point convince them. NB: Even had WMD been found, many would still have severely criticized the administration for the way they found and removed them. I view the screaming about WMD to be almost entirely political in the sense that, for a great many, it is motivated by a desire to discredit an administration to which those doing the screaming are deeply and very emotionally opposed. But I hasten to emphasize that this characterization does not apply to all such critics.

Hanson's essay raises the issue of how the Rule of Law or "legality" differs from Justice (a principal theme of my last book, The Structure of Liberty: Justice and the Rule of Law). There is good reason to adopt and obey rules of law. And reason to condemn and even punish their breach. But ultimately such rules are in service of justice and Hanson's interesting point is history judges such acts more by their justice than by their legality.

At any rate here is a rather lengthy excerpt from a pretty long essay that well bears reading in its entirety:

. . . 4. The wages of bluffing. If present stockpiles of WMDs are discovered not to have been present in Iraq in spring 2003 or to have been transported to Syria, it is probably because of deception inside Iraq itself. Either Iraqi weapons procurers and scientists may have misled an unhinged Saddam Hussein or Saddam knew he had no arsenal and yet deliberately misled the U.N. In other words, if the world decides that such a monster cannot have such weapons (as the U.N., in fact, did in several resolutions), and such a monster chooses for whatever bizarre reasons to avoid disclosing information about them, then either one acts on logical inferences or does not — and thus accepts the wages of such defiance.

I am sorry that the United States has established a hair-trigger reputation in matters of deadly agents of mass destruction — but apparently other rogue nations now believe that the burden of proof is no longer on us to establish that they have them, but rather on them to ensure the world that they do not. And that is not necessarily a bad thing if we ponder that the lives of thousands may hang in the balance.

5. WMD deterrence. So it turns out that the emphasis on weapons of mass destruction in Iraq, and the subsequent effort to take out Saddam Hussein have had a powerful effect on such arsenals far beyond Baghdad. Without the removal of the Baathists, Libya would never have confessed to its nuclear roguery. Without the recent war, Iran would never have professed a desire to follow international protocols. Without the recent conflict, Pakistan would never have investigated its own outlaw scientists.

Whether we like it or not, the precedent that the United Sates might act decisively against regimes that were both suspected of pursuing WMD acquisition and doing nothing to allay those fears, has had a powerful prophylactic effect in the neighborhood. Only in this Orwellian election year, would candidates for the presidency decry that the war had nothing to do with the dilemma of WMDs — even as Libya, Iran, and Pakistan by their very actions apparently disagreed.

[snip]

8. History's verdict. The morality of a war, perhaps tragically so, is usually judged by the way it was waged and its aftermath. Thus while historians quibble about whether Roosevelt "knew" about December 7, most care little because they accept Japanese aggression and the ultimate success and morality of our efforts to defeat it. Conservatives harp that President Clinton neither went to the U.N. nor the U.S. Senate to bomb Serbia; but their objections to his preemption rightly fell on deaf ears because the real moral question was rather to stop genocide and end the reign of a mass murderer. Most of us did not care a whit about Monica, but appreciated deeply the Clinton effort (way too late) to stop the slaughter in the Balkans and finally to show some displeasure with Saddam Hussein.

This is not an argument to ignore concerns over dissimulation, but rather to appreciate that when confronted with an ogre the moral issue sometimes is ending his reign and leaving millions safe and free in his wake, rather than quibbling over the legal basis to do so.

In contrast, we talk still about an exaggerated Gulf of Tonkin resolution precisely because the ensuing war became morally questionable, was often waged nonsensically, and was ultimately lost — resulting in millions of dead in vain, refugees, and internees. Had we acted wisely in Vietnam, created a South Korea-like state within three years, and today be witnessing a Saigon similar to Seoul, the Gulf of Tonkin legislation would be seen instead as an irrelevant if improper effort to prompt needed action to save millions from Communism rather than the disingenuous catalyst that led to quagmire.

Again, this is not to suggest the ends justify the means, but rather to acknowledge that there are always deeper reasons to go to war than what lawyers, diplomats, and politicians profess. Those underlying factors are ultimately judged as moral or immoral by history's unforgiving logic of how, and for what reason, the war was waged — and what were its ultimate results. We live in a sick, sick West if we investigate Mr. Bush's and Mr. Blair's courageous efforts to end Iraqi fascism, while ignoring the thousands of Europeans and multinational corporations who profited from his reign of terror.

Postmortem. If the United States went to war with Iraq only because of the threat of WMDs; if the mass murdering of Saddam Hussein was found on examination to be highly exaggerated; if we had some secret plan for stealing the oil of Iraq, if Saddam Hussein posed no future threat to the United States or its allies; if the war resulted in a worse future for Iraq, the United States, and the surrounding Middle East; and if the administration deliberately constructed false intelligence evidence to advance such an unnecessary war that resulted in misery rather than hope, then an apology is needed now. But so far, that has simply not been the case.

Friday, February 06, 2004

 
[Sasha Volokh, 2/6/2004 07:36:34 PM]
Speaking of Yiddish: That reminds me, here's a Yiddish song which I think is both one of the best Yiddish songs generally and one of the best songs to come out of the Holocaust. It's called Unter Dayne Vayse Shtern (Under Your White Stars). The version I link to has mistakes in the Yiddish, but it's good enough, and has an O.K. English translation. There's nothing like listening to the music, though. It's on Mandy Patinkin's CD Mamaloshen (sound clip here), and I also once heard it on Ruth Seymour's KCRW Hannukah show, Philosophers, Fiddlers, and Fools.

UPDATE: I'm glad to bring people and Yiddish songs together! Reader Ronald Gans dimly phonetically remembered a Yiddish song from childhood, and I was able to identify it as another one of the great Yiddish songs, Oyf'n Pripetshok, which appeared in Schindler's List, on the Patinkin album Mamaloshen, on the KCRW Hannukah show, and other places.

 
[Sasha Volokh, 2/6/2004 07:20:41 PM]
Thought for a cool song: To the tune of "Desperado": "Desperanto."

The general title idea has already been done. Also, famously, Isaac Bashevis Singer favored Yiddish over Hebrew for the official language of Israel, because Yiddish had a culture and literature and humor, while Hebrew was a "soulless Desperanto." Maybe not that famously: I can't find it on the Internet.

UPDATE: Thanks to reader Adam Roesch: Isaac Bashevis Singer actually said that Hebrew was soulless Esperanto. One article I read years ago reported this, and also commented that Yiddish was an appropriate language for irony and other minor keys of life -- a Desperanto, if you will. I just combined the two stories in my head.

 
[Sasha Volokh, 2/6/2004 07:06:59 PM]
Mirror of Justices: Alas, Eugene narrowly beat me to the Mirror of Justices post. I mention the Mirror in my article n guilty men, 146 U. Pa. L. Rev. 173 (1997), at footnote 51. In Anglo-Norman, the part I quote goes:

[Alfred] pendi Freberne pur ceo qil jugea Harpin a la mort ou les jurours furent en dote de lur verdit. Car en doutes deit len einz ces sauver qe dampner.

Speaking of "narrowly beat me," case reports were written in Law French back in English Historical Times, and as these guys lost connection with their French Homeland (England lost France in the 13th century, and permanently lost it in the 15th century), they stopped being able to speak French at all, so their Law French became more like French prepositions with English words thrown in, like in the following case:

Probably the most notorious example of what brought on [Pollock and Maitland's] dismissive tone [toward Law French] is the 1621 report of the prisoner "condemne pur felony que puis son condemnation ject un brickbat a le dit justice que narrowly mist, et pur ceo immediately fuit Indictment drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court."

[That is, he was "condemned for a felony and upon his condemnation threw a brickbat at the said justice, which narrowly missed, and for this Noy immediately drew up an indictment against the prisoner, and his right hand was chopped off and fixed to the gibbet where he himself was immediately hanged in the presence of the court."]

"Que narrowly mist." Aww, yeah.

 
[Eugene Volokh, 2/6/2004 06:23:58 PM]
Just to avoid confusion, I thought I'd mention that Mirror of Justice, the blog coauthored by several Catholic law professors, is not the same as The Mirror of Justices, a late Middle Ages English legal work.

     According to one source, The Mirror of Justices was once believed to be a Saxon-era work, but was in fact created between the 12th and the 14th century. The Mirror, alongside some other works, is said to have been "as influential as the Bible and Magna Carta in shaping political thought in the [17th century],'" a quality that Mirror would doubtless be pleased to have (changing the century number, of course); and given the era, The Mirror was doubtless written by a Catholic, and was about law, but there the similarity ends (I think). Just thought I'd clarify the matter, since doubtless many readers have been wondering about it.

     Next week: CokeUponLittleton.blogspot.com, plus Fleta: The Treatise, The Prison, The Blog.

 
[Eugene Volokh, 2/6/2004 05:50:38 PM]
Mirror of Justice: Just saw this new group blog -- "dedicated to the development of Catholic legal theory" -- and was very impressed by its authors (all law professors): My friend and colleague Stephen Bainbridge (author of his own blog), my friend and former clerk for the Chief Justice, Rick Garnett, Mike Scaperlanda and Greg Sisk, whom I know from various discussion lists, and several others. Here's part of their opening post:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory -- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. . . .

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4. We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course). . . .

Should be much worth reading, especially for people who are familiar with the Catholic intellectual tradition.

 
[Sasha Volokh, 2/6/2004 05:23:10 PM]
Eenie meenie and other things: My "Eenie meenie" experience is similar to that of David below. Depending how far you wanted to go and who you didn't want to get "out," you could do as many steps of the following as you liked past the third line:

Eenie meenie minie moe,
Catch a tiger by the toe,
If he hollers let him go,
My, mom, told, me, to pick, the, very, best, one, and, you, are, not, it...
For, the, rest, of, the, day...
And, the, night...
Time.

Of course you have to plan this all out a second ahead of time so it looks natural.

Also, query whether a calypso orgy in Michigan would be a Day-O Sex Mackinac.

 
[Jacob Levy, 2/6/2004 01:51:56 PM]
Chicago event: Oxbloggers, Crescatters, and others under the common rubric of the Nathan Hale Society will be meeting Sunday at 7 pm, at Cosi (116 S. Michigan), for a discussion of the Department of Homeland Security.

I've been away at a family funeral, and the backlog of student e-mails has priority over the backlog of blog e-mails. Sorry if you've written in and don't hear back from me.

 
[Eugene Volokh, 2/6/2004 12:42:47 PM]
Indecency: If you're interested in just what may or may not be broadcast (apropos the Janet Jackson incident, for instance), here's the FCC's Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. � 1464 and Enforcement Policies Regarding Broadcast Indecency. Little by way of a clear rule, but lots of examples.

 
[Eugene Volokh, 2/6/2004 12:40:12 PM]
One more item about the Paul Craig Roberts column: The Fifty Minute Hour has another criticism:

Paul Craig Roberts believes that the Heritage Institute's Index of Economic Freedom rates the United States too highly because they fail to give sufficient weight to the immorality of taxation. . . . I have to contest the premise of the entire piece: that the level and scope of taxation in the United States abridges our freedom significantly enough to warrant a lowering of our rating as compared to other nations. That is simply false.

The Index of Economic Freedom, like most statistical analyses of its kind, is a comparative ranking. For pessimists like Roberts, that may amount to something like, "in the land of the blind, the one eyed man is king," but in any case, on a numerical ranking scale, someone has to be at the top. So even if you buy Roberts' arguments that taxation is slavery, it's appalling that Roberts would consider a 35 percent income tax to be worse than the crippling economic repression taking place all over the world. . . .

 
[Eugene Volokh, 2/6/2004 11:00:03 AM]
"TiVo watchers uneasy after post-Super Bowl reports":

On Monday, TiVo said the exposure of Jackson's breast during her halftime performance was the most-watched moment to date on its device, which, when combined with the TiVo subscription service, lets viewers pause and "rewind" live television broadcasts, among other features.

TiVo said users had watched the skin-baring incident nearly three times more than any other moment during the Super Bowl broadcast, sparking headlines that dramatically publicized the power of the company's longstanding data-gathering practices. . . .

A TiVo spokesman said the company operates well within established privacy standards. For years, TiVo has disclosed its data-gathering practices in user agreements, saying it strips out any information that could be traced back to an individual viewer. . . .

 
[Eugene Volokh, 2/6/2004 10:45:24 AM]
Chevy Nova myth? My brief mention of the Chevy Nova in the Trojan Doctrine article reminded me of the old claim that the Nova failed in Spanish-speaking countries because "No va" means "doesn't go" in Spanish. It turns out that, according to the indispensable Snopes, it isn't so; and the Snopes analysis strikes me as quite persuasive:

First of all, the phrase "no va" (literally "doesn't go") and the word "nova" are distinct entities with different pronunciations in Spanish: the former is two words and is pronounced with the accent on the second word; the latter is one word with the accent on the first syllable. Assuming that Spanish speakers would naturally see the word "nova" as equivalent to the phrase "no va" and think "Hey, this car doesn't go!" is akin to assuming that English speakers woud spurn a dinette set sold under the name Notable because nobody wants a dinette set that doesn't include a table.

Although "no va" can be literally translated as "no go," it would be a curious locution for a speaker of Spanish to use in reference to a car. Just as an English speaker would describe a broken-down car by saying that it "doesn't run" rather than it "doesn't go," so a Spanish speaker would refer to a malfunctioning automobile by saying "no marcha" or "no funciona" or "no camina" rather than "no va."

Pemex (the Mexican government-owned oil monopoly) sold (and still sells) gasoline in Mexico under the name "Nova." If Mexicans were going to associate anything with the Chevrolet Nova based on its name, it would probably be this gasoline. In any case, if Mexicans had no compunctions about filling the tanks of their cars with a type of gasoline whose name advertised that it "didn't go," why would they reject a similarly-named automobile? . . .

GM was aware of the translation and opted to retain the model name "Nova" in Spanish-speaking markets anyway, because they (correctly) felt the matter to be unimportant.

The truth is that the Chevrolet Nova's name didn't significantly affect its sales: it sold well in both its primary Spanish-language markets, Mexico and Venezuela. . . .

The Chevy Nova legend lives on in countless marketing textbooks, is repeated in numerous business seminars, and is a staple of newspaper and magazine columnists who need a pithy example of human folly. Perhaps someday this apocryphal tale will become what it should be: an illustration of how easily even "experts" can sometimes fall victim to the very same dangers they warn us about.

 
[Eugene Volokh, 2/6/2004 10:16:12 AM]
Some more measurements, from my former student Kevan Choset:
1 quadrillion picketers = 1 PETA protester.
43,560 dark square feet = 1 Blackacre.
4 educated inches = 1 Learned Hand.

 
[Juan Non-Volokh, 2/6/2004 08:49:52 AM]
Judicial Salaries: I would echo Jeremy Blachman's comments on en banc that, even though the judicial salaries provide for a substantial lifetime income (as judges with sufficient service can take senior status or retire at full pay). I would also stress the point that judicial salaries should, in part, reflect the relative demand for the talents of those individuals who we would like to see on the federal bench. In other words, judicial salaries should be reasonably responsive to market conditions.

If we believe that federal judges should generally be among the most talented legal minds on the bench, then we are seeking as judges those individuals who can command some of the highest legal salaries -- salaries well in excess of the full value of legal salaries. This does not mean the real value of the salary has to match private legal salaries dollar-for-dollar, as there are non-pecuniary benefits to being a judge (hours, jub security, etc.), but it does mean that insofar as a federal judge's income is substantially below that of a senior partner at a major law firm, the pool of potential judges will shrink, and many of the potential judges we lose will be individuals we might have wanted on the bench (assuming, again, that we want our judges to be among the best and brightest in the profession).

Following this approach would likely mean that federal judges would continue to get paid substantially more than teachers or firemen and other "public-spirited" professions -- and, in all likelihood, this differential would grow. But this is the inevitable consequence of wanting people as judges who have high opportunity costs. Note that the same phenomenon occurs in academic salaries. At most universities, law school and business school professors are paid significantly more than, say, literature professors, due to the higher opportunity costs of those qualified to be law professors than those qualified to be literature professors. This does not mean that law professors are more important to universities than literature professors. Rather, it means that the cost of obtaining law professors of a given quality is, in most instances, significantly greater than the cost of obtaining similarly qualified literature professors.

One final note: I do not think this argument for increasing judicial salaries supports raising the salaries of politicians and political officials generally. This is because, as a general rule, the longer an individual works as a politician or high-powered political official, the higher his or her residual value in the marketplace for subsequent employment. That is to say, the typical Senator -- unlike the typical federal judge -- has the ability to "cash in" on his or her public service and recoup the income sacrificed while working as a politician. Thus, the opportunity cost of their employment as a politician or senior official is comparatively less.

 
[Randy Barnett, 2/6/2004 08:49:00 AM]
"Divided America": A superb column by Jonah Goldberg in Thursday's NRO called Division Diversions: Enough with this two-Americas, wedge-issues, unity nonsense. You really need to click on the link and read it for yourself, but here is how it begins and ends:

. . . It is true that George W. Bush divides America. But so did Bill Clinton. So would have a President Gore if his voters only understood that pesky butterfly ballot. And, so will any of the Democrats running, if they manage to win the election. . . . [snipping rest of column]

Which brings us back to this Democratic mantra of "bringing America together." Americans are divided because they disagree with each other. That is the American constant, and it doesn't bother me in the least. Yes, I'd prefer that we were divided about different things, but that's because I'd prefer to win the current arguments separating the two sides of the culture war. However, if you think unity is the highest political value, you need to ask yourself: Would you rather have national agreement on positions you fundamentally oppose, or would you rather have divisiveness with a chance for victory another day? If you answered honestly, stop complaining about America being divided.

 
[Eugene Volokh, 2/6/2004 08:48:49 AM]
The Trojan Doctrine: My latest article, in the Texas Review of Law & Politics. Special bonus: It's only two pages long!

 
[David Bernstein, 2/6/2004 08:43:54 AM]
Scalia and Cheney: Scalia's hunting trip with Cheney was unseemly. Forgetting the particular issue of whether Scalia should recuse himself from the pending case involing Cheney, Supreme Court Justices should make it a rule not to become the friends and cronies of high-level executive branch officials. One of FDR's great sins was to appoint cronies to the Supreme Court, then lobby them in phone and in person on pending cases involving the executive branch. In turn, they should have (but as far as I know, didn't) told him to f*** off. Frankfurter, in particular, never broke his political ties with Roosevelt. The Supreme Court has aggregated a lot of power to itself, including the power to determine disputed elections; the public tolerates this because the Court is supposed to be independent and at least much less political than the other branches. The least the Justices could do is maintain a personal distance from executive branch officials to avoid the appearance (and temptation) of cronyism, given how many pieces of legislation dear to the heart of any particular administration they are likely to rule upon. There are thousands of people in DC for Scalia to make friends with. The Vice-President doesn't have to be one of them.

 
[David Bernstein, 2/6/2004 08:04:02 AM]
Random Fact on "Eenie Meenie": In Queens, NY, where I grew up, it was used as an elimination game, with each word (at the end, letter) pointing to a different kid: "Eenie meenie, minee moe, catch a tiger by the toe, if he hollers let him go! My mo-ther says to pick this one and out goes Y-O-U!"
If this landed on a kid you liked, who you didn't want to eliminate, and you could get away with it, you would add "P-U", so the eliminatee would be two spaces down.

 
[Randy Barnett, 2/6/2004 01:29:59 AM]
A True Fact: I just heard that John Kerry was a Vietnam Vet: Did you know that John Kerry was a soldier in the Vietnam war? Well, he was. I just stumbled across this closely held secret somewhere on the blogsphere. Not that you would know it from listening to Senator Kerry himself who mentions it only under duress, since even the appearance of exploiting his military service for political advantage makes him uncomfortable. Perhaps this is because, as I recall from that era, he ended up becoming a very visible leader of the anti-Vietnam left, at that time using his honorable service to advance the cause of a movement that demonized, sometimes viciously ("baby killers!), the American military, though I am quite sure this was never his intent.

On the subject of using one's military service as a campaign issue, some might be interested in this column by Collin Levey in the Seattle Times (link courtesy of Southern Appeal):

Why do we care about military service in our leaders?

It's not solely about service and duty, though those are important things.

It's also about understanding the gravity of conflict and credibility in handling it. The military service of Kerry's hero, John F. Kennedy, was important because it bolstered his profile as a strong-defense Democrat at a moment of high tension in the Cold War.

Nobody has yet detected a similar forcefulness against foreign enemies from Kerry, only against domestic pharmaceutical companies, HMOs and "Big Oil." That didn't stop Clyburn from saying two nights ago that, even if Kerry's Vietnam patrol boat didn't have a name, "we're going to give it a name" like PT109.

Clyburn is undoubtedly sincere. If Kerry listens to very much such advice, however, he'll be walking close to the edge of turning his Vietnam experience into a campy political cliché, or worse.

Wherever Kerry is to be found these days, you don't have to look far to find his friend and supporter, former Georgia Sen. Max Cleland, a triple amputee and fellow Vietnam vet. Cleland, who lost his seat to a Republican challenger in 2002, has been put forward at every stop as a martyr to alleged GOP slurs on his patriotism. In fact, as his hometown Atlanta Journal Constitution has reported in detail, Cleland's own campaign originated the strategy of meeting every criticism of his record on homeland security (he had voted 11 times for a Democratic Party-line effort to open up the new department to organized labor) by ginning up "feigned outrage" and accusing opponents of challenging his "patriotism."

Cleland made these alleged slurs a central theme in his Georgia re-election campaign. Kerry would be wise to take note of what happened next: Georgia voters listened carefully to both sides and then tossed Cleland out.

Voters honor the service and patriotism of military veterans. Indeed, so much so that they can be quickly turned off by use of such symbols cynically to evade scrutiny and accountability.

That's why Kerry's best move now might be to shut up about Vietnam. He's about two applause lines away from convincing voters that he's trying to cash in on a war that cost thousands of his fellow volunteers and draftees their lives.

 
[Randy Barnett, 2/6/2004 01:03:31 AM]
I (Don't) Read, Therefore I (Don't) Blog: I am already starting to become uncomfortable about my ratio of substantive blogging to mentions of my ongoing book tour. It seems that part of what it takes to be a blogger is the time (and internet connection) to read other blogs or online sources that then stimulate a new blog. Traveling this much, it seems, has simply cut down on the inputs that contribute the output. Be this as it may, those who want to watch my talk at the Cato Institute (and comments by Walter Dellinger and Judge David Sentelle) can do so using RealVideo or RealAudio by using the links found here. Here is a blog by someone who attended (but has not yet read the book).

And those who want to listen to me on WGN-AM radio tonight (9-11PM CT) discussing Restoring the Lost Constitution on Extension 720 with Milt Rosenberg can do so on the internet by clicking here. (Afterwards the show should be available on his archives.) Joining me will be law professor emeritus Victor Rosenblum of Northwestern, a truly wonderful guy.

BTW, as testimony to the power and influence of blogging, Milt Rosenberg, a University of Chicago professor with a nightly 2 hour talk show (one of the most intellectually interesting talk shows on radio) on a 50,000 watt clear channel radio station feels the impulse also to blog. Here is the link to his Milt's File blog.

 
[Randy Barnett, 2/6/2004 01:02:48 AM]
What does WGN stand for? Being on WGN tonight reminded me that call letters for radio and TV stations often used to be chosen as acronyms for something else. Here is a short list from memory of some Chicago call letters (I used to know more):

WGN = World's Greatest Newspaper (The Chicago Tribune)
WLS = Word's Largest Store (Sears)
WTTW = Window To The World (it used to be housed at the Museum of Science & Industry and I believe this was a motto of the museum, but it might just have been the motto of this early public TV broadcaster)
WCFL (call letters have been changed) = W Chicago Federation of Labor
WIND = W INDiana (where it was founded, as I recall in Gary)

Thursday, February 05, 2004

 
[Eugene Volokh, 2/5/2004 06:18:20 PM]
Little-known facts: (For more, see here.)
16.5 feet of silver in the Twilight Zone = 1 Rod Sterling.
101.94 g of falling figs = 1 Fig Newton (at standard Earth gravitational acceleration, 9.81 meters per second squared).
1 trillion pins = 1 terrapin.
10^21 piccolos = 1 gigolo.
3 1/3 tridents = 1 decadent.
1/1000 of a female sheep = 1 milieu.
1 millihelen = the amount of beauty required to launch 1 ship.
1 billionth of a billionth of a boy = 1 attaboy.
And, my sole original contribution: 1.5 dollops = 1 trollop.

(Thanks to Doug Sundseth for the correction on the Fig Newton.)

 
[Sasha Volokh, 2/5/2004 06:13:38 PM]
Yet another (long) post about the Holocaust: Thanks everyone for the thoughtful (both agreeing and disagreeing) messages and response posts. Thanks even for the not very thoughtful ones. Two of the better posts are at Jumping to Conclusions and at Kesher Talk. One of the not-so-good posts says that "Holocaust denial also includes the minimization of the Holocaust, or denying its uniqueness." Like, I can say that the Holocaust is one of the most evil events in all of human history because so many people were murdered (and I've never disputed anyone's numbers), and I'm a Holocaust denier? For reference, my past posts are #1, #2, and #3.

Here are some additional assorted thoughts; I can't respond to everyone's notes, but here's a narrative that ties some of the strands together, just so you know where I'm coming from. (This may also give you ideas of what arguments to make that I would find convincing.)

My perspective begins and ends with individual rights (in the libertarian framework), one of which of course is the right to life. If no violation of rights, then nothing immoral or evil.

(Of course, one can always argue with the libertarian framework, and many of my disagreements with others can be traced back right there. But lest this spiral out of all control, I'm taking that perspective as given, for now. But clearly I still disagree with other libertarians (e.g., here), so this isn't meant to be a debate-stopper... so here's my take from within libertarianism.)

Suppose you have two different violations of rights, and you're trying to rank them, as in, "Which one is more evil?" Some folks don't believe in these rankings: evil is evil, and all evils are as bad as all others... I don't go for that; clearly there's a difference between living under Hitler and living under [fill in the blank for your most despised U.S. President]. So, the first step is to identify the rights violation; this includes both which right was violated, and the extent of the violation. (For instance, restrictions on political speech can be broad or narrow; both modern Germany and Nazi Germany restrict political speech, but clearly Nazi Germany is the worse actor; I'm not calling these the same right violation.)

Here's the really controversial point: violations of the same right are equally bad.

What this does mean: suppose you murder a very productive and creative person with lots of family and friends who love him very much. Clearly that guy's death is really harmful to the world, and makes more people more sad than if you murder an unloved homeless guy. But you're violating the same right, so these acts are equally bad.

This is relevant to a common argument among my correspondents: wiping out an entire people kills the entire Jewish civilization, and that's a particular harm which wipes out the entire achievement of a culture, akin to the extinction of the dodo bird. I agree with everyone who's written or posted on how cultures are valuable, how getting rid of a culture removes something irreplaceable from the world, etc.

My only difference with these guys is that I don't think the contribution of a person, or culture, to the world, affects the moral calculus: to me, it sounds just like the productive and beloved guy vs. the unloved homeless guy. Emotionally worse, culturally worse, makes more people sadder, but doesn't make it more evil. (Hat tip: reader "Could Be Raining," Teleologic Blog, reader Damon Katz, Kesher Talk, my friend David Bitkower, reader Shelby Clark, Strange Women Lying in Ponds, and The Truth Laid Bear. Incidentally, Damon Katz thinks my perspective "devalues the notion of civilization itself.")

(A brief note: Also, obviously, because of the individualist focus, the Jewishness of the victims doesn't do anything for us here. Contra, reader Justin Sobaje points to Deut. 7:6-8, Exod. 19:5-6, Isa. 49:22-23, Zech. 8:23, for those of you who may be swayed by that evidence.)

Now, what this doesn't mean. Saying "violations of the same right are equally bad" doesn't mean I consider accidental deaths to be the same as murder (because each leads to a death). I think you need intent to transform a killing into a Violation of the Right to Life, so pure accidents don't violate the right, intentional murders do, and intermediate degrees of intent (negligence, recklessness, e.g. drunk driving) are tougher cases. (Hat tip: reader Moshe Krakowski.)

Nor does it mean I consider intentional killings in self-defense (including defensive warfare) to be the same as murder; to qualify for the "violations of the same right are equally bad" rule, the violation has to in addition be unjustified. The moral calculus, in this consequentialist framework, allows you to violate certain rights in order to protect others, so some rights violations are justified, therefore not bad at all.

So: once you have an intentional, unjustified killing, additional elements of motivation (or lack of motivation, see Jumping to Conclusions and David below) don't do anything extra for you directly in terms of immorality. (Tim Burke says the moral continuum should involve motives, means, and consequences. By its very name, my consequential perspective only looks at consequences; and because it's rights-based, the consequences I look at are consequences with respect to individual rights.)

This doesn't mean that these additional motivations aren't important. As I mentioned before, they may make a big difference emotionally, culturally, and so on.

Moreover, you measure the morality of acts not just by their direct effect (i.e., killing a number of people) but also by all their foreseeable indirect effects. I stressed that this is a consequentialist rights-based philosophy, so all consequences count.

So, totally random killings may have relatively few indirect effects. Killing soldiers or civilians in "regular" warfare has been around for a long time; but killing people in a new and unheard-of way might give more people ideas for the future. Race-motivated killings may encourage (i.e., raise the probability of) future killings, which means the total effect of a genocide is greater than the people directly killed in the event. Politically motivated killings squelch political debate, furthers other aspects of the killers' illiberal agenda, and makes society less free in many other ways, which also increases the immorality of the event. Systematic killings may inspire more fear (hat tip: reader Anand Manikutty of The OracleBlogs). Reader Mark Wells points out that the Holocaust "required the corruption of an entire society" and that the Nazis "made millions of their own people into murderers," which are also moral minuses.

But I take all the above to say: Look at all the indirect effects on individual rights, tally up the bottom-line rights violation; then, violations of the same rights are equally bad. All these factors, which have no independent effect under my theory, still come in with their indirect effects, since they affect what rights get violated in the end. Then, as I argued above, once you consider all the indirect effects on individual rights, there's no room in this moral framework for non-consequentialist considerations like whether you were planning on killing more people than you did, whether you planned on wiping out an entire race, or whether you intentionally killed because of sex or money or racial hatred or for no reason at all. (And that, I think, is at the core of the uniqueness/non-uniqueness debate.)

Here comes another really controversial point. Clearly, if you're saying that the Holocaust is "like" Stalin, or that Jewish Holocaust victims are "like" the politically persecuted, or that Holocaust victims are "like" the Allied war dead, there's the counter-argument that it's worse to be killed when you couldn't avoid it (like being ethnically Jewish) than when you could (take off your glasses in Cambodia, don't talk politics in the USSR, don't enlist in the army). (Hat tip: reader Brian Harmon, my friend Eric Soskin, reader Michael Crane.)

I agree that there's something different between saying "You're dead because you are X" and "You're dead because you're doing X" (when you can choose to stop doing X). (Of course, provided you have the right to do X -- say, political speech -- it's evil either way, but we're talking about degrees here.) Here's how I'd conceptualize it: The first case is a violation of the right to life; the second case is a violation of the liberty right to do X (even if you get killed in the end because you do X). Which of these rights is more important? A priori, I don't like to say. I definitely don't believe that life trumps everything else; many people would gladly die rather than do certain things.

So (here's the controversial part): let's let the victims speak for themselves. If you're willing to die rather than shut up, then clearly you value your liberty right to criticize the regime at least as much as your life. (Those who aren't killed, on the other hand, valued their life more, again by revealed preference.) So I'm inclined to give political victims -- those who were actually killed -- the same status as racial victims.

[UPDATE: A better way of putting this is that unconditional murders violate your right to life, while, say, political persecution gives you a choice between the right to life and the liberty right to speak out. They end up violating your right to life, because (by revealed preference) you consider your liberty right to speak out to be more valuable than your life right. (A less subjectivist view would say something like: you had a choice, and the liberty right violation is lesser, so we should judge the persecution on those grounds. That's the perspective I'm rejecting.) Hat tip to Matt Rustler of Stop the Bleating! and reader Eric Rosenberg for pushing me to rephrase this paragraph.]

Of course, the Nazis are indeed a special case for moral philosophy because they're so easy: everything they stood for was wrong, and so pretty much everything they did in pursuit of their goals was also wrong. Once you have good guys (i.e., the Allies), then it gets more complicated: they have the right to fight back against the Nazis, and of course you can't run a war, even a just one, without killing some innocents. The moral requirement is to maximize "net morality": take the moral benefit from defeating the Nazis, subtract the moral cost of killing innocents along the way, choose your war plans to maximize that difference. So some victims of the Allies were "justified"; others weren't (for instance, if their deaths were avoidable and didn't further war aims -- some people may put Dresden or Nagasaki into this category, but I won't get into an argument over that). So clearly I'm not saying that every dead German soldier or civilian is a moral tragedy on an equal basis with the Holocaust.

This is too long already, so I'll leave all remaining posts for later, perhaps. I'll conclude by recapping a bit from the top: The Holocaust is one of the most evil events in all of human history because huge numbers of people were murdered. It even merits a lot of special study and remembrance for all the reasons everyone has said. And, under the broad reading of "Holocaust denial" that includes "Holocaust minimization," I'm a Holocaust denier because I don't think plans for racial extermination change the already damning moral calculus? Puh-leeze.

P.S. Check out a post by a certain "Mike" in the comments section of both Solomonia and Strange Women Lying in Ponds (same comment) for someone who really doesn't like me.

On an unrelated note, my friend David Bitkower notes that, while I wrote in a previous post that American criminal law only makes motive count in limited ways, international criminal law does treat genocide specially (ICC, ICTR, ICTY), at least on paper. Of course, neither American criminal law nor international criminal law is particularly authoritative as to the moral question of what should be; I just noted American criminal law because so many people wrote me asking, "Then why do we have different degrees of murder?" (these degrees are mostly based on degree of intent) and "Why does motive count for sentencing?" (lots of stuff counts for sentencing that's separate from the moral status of the crime).

 
[David Bernstein, 2/5/2004 04:35:41 PM]
Uniqueness of the Holocaust: This post pretty much sums up why I disagree with Sasha:

[Money quote, but read the whole thing]: The Nazi goal wasn't to take territory from Jews. It wasn't to take resources from Jews. It wasn't to destroy armed opposition to the German government. There was no underlying reason for it; the goal was to wipe out Jews. Worse, it was such an important goal for the Nazis that even while fighting a continental war for their regime's survival, resources were diverted away from the war effort to continue the Holocaust. Is that different than merely killing people you come across? I think it is. I think killing for the pure pleasure of killing can be distinguished -- and can be reasonably said to be morally worse -- than killing to accomplish an end, no matter how evil the latter is.

At least, unique. Now, I suppose some Nazis thought that by attacking the Jews they were launching a war on Bolshevism, but (1) my sense is that most just plain hated Jews, or were "just following orders"; and (2) this in itself is so twisted--the idea that there was some genetic link between Jewish heritage and Bolshevik tendencies, so that even a Christian with a Jewish grandfather who was a member of conservative political party was a Bolshevik threat--that it deserves a special place in the annals of human depravity.
UPDATE: Reader Nick Little asks a question beyond my competence to answer:

The uniqueness of the Holocaust is something I have struggled over for a long time. One element of your post, the war on Bolshevism, raises a question I think may be central to this. Did the Nazis hate Jews because they were the agents of Bolshevism, or did they hate the Bolsheviks because they saw them as the tools of international Judaism? My reading tends to point me towards the latter. The anti-Semitism seems so much deeper than the anti-communism.

One reason for this you mention - that a politically conservative 1/4 Jew was still subject to extermination. Also, I don't see even a short term
tactical agreement with Judaism along the lines of the Nazi-Soviet pact as being within the Nazi mindset. And the end of the war gives perhaps the best evidence - the focus on the Final Solution even at the expense of
armaments production and the logisitcal needs of the forces attempting to prevent the onslaught of the Red Army seems to point toward anti-semitism as beign the key motivator.

 
[Tyler Cowen, 2/5/2004 04:12:45 PM]
Who should we take in? I have already argued that we should substitute legal for illegal immigration. But what standards should be applied to the legal entrants?

I hear two major complaints about the current groups of immigrants, legal and illegal combined:

1. Too many are unskilled.
2. Too many don't speak English.

Whether or not we agree with these complaints, a politically feasible proposal must in some way address them. I propose a three-tier system, with the following criteria:

1. One group of immigrants would buy their way in. A certain number of slots would be auctioned off.

Note that this group of emigrants is likely already skilled and wealthy to some degree. While they may not speak English, linguistic assimilation would not appear to be a problem. Furthermore the funds received could go to bear the general costs of immigration. The money could be awarded to state or city governments in proportion to the number of migrants who live there.

2. One group of immigrants would be chosen on the basis of work skills.

We already give favorable treatment to nurses, and Canada uses skills as a criterion for immigrants, with success. Note that this class of immigrants is unlikely to create major problems.

Before proceeding, I would like to challenge the view that all emigrants should be highly skilled. In part we gain by trading with people who are not like us. We wish to have maids, gardeners, and manual laborers. Furthermore America has a special interest in the well-being of its neighbor Mexico. The problems of Mexico will be our problems, increasingly. So for the third category I propose the following:

3. Test the unskilled for IQ and perseverance. Allocate a larger number of legal spots to Mexico and other poorer nations, with the goal of taking in unskilled laborers. Give special priority to Mexico. That being said, we should allocate these spots rigorously based on the following criteria:

a. Some measure approximating IQ
b. English language proficiency

In other words, give them all something like an SAT test, in English, and take in the winners. This will select for intelligence, drive to succeed, ability to persevere in study, and willingness to learn English. It should improve dramatically the quality of our unskilled immigrants. It should make the immigration of unskilled labor much more politically acceptable. It will give Mexicans an incentive to learn English.

Of course we can argue about the relative magnitudes of the three categories. For humanitarian reasons, I would prefer that the third category be especially large. But practical politics may not leave us many degrees of freedom. If we need to jiggle the weight of the categories to increase the total number of immigrants, so be it. Here is a general recipe for more legal immigration, more gains from trade, and more human freedom, while simultaneously making immigration more politically acceptable to the American public. I'm not holding my breath, but I prefer this solution to the other proposals I have seen.

 
[David Bernstein, 2/5/2004 03:38:07 PM]
Republicans and Sharpton: I've been critical of Republicans and Democrats for not criticizing Sharpton. Several readers, and Mark Kleiman, point to this piece noting Sharpton's close ties with Republican Stone. The problem with this piece is that it provides not a shred of evidence tying Stone's contacts with Sharpton not only to Bush, but to anyone else in the Republican establishment. And it hardly comes as a surprise that Sharpton, the consummate opportunist, would accept aid from Republicans. Note to Kleiman: It hardly counts as a Sister Souljah moment for the Democrats to disavow Sharpton only after they have figured out that he is a Trojan Horse for certain Republican operatives.

 
[Eugene Volokh, 2/5/2004 02:56:59 PM]
Sonoma State University speech code: Just ran across this -- it prohibits, among other things, "disparaging comments about women as a group," "the use of sexist humor or demeaning sexual allusions," "making statements which communicate to students . . . limiting preconceptions about appropriate and expected behaviors, abilities, career directions, and personal goals which are based on sex rather than individual interest or ability." And, yes, this explicitly applies to students as well as employees. A pretty clear First Amendment violation; sexist viewpoints are as constitutionally protected as egalitarian ones. But that doesn't seem to worry Sonoma State much.

 
[David Bernstein, 2/5/2004 02:39:47 PM]
More on Eenie Meenie: Remember the recent decision exonerating Southwest Airlines from liability because one of its employees said "Eenie Meenie Minie Moe"? This related tale arrived in today's email, and the basic facts check out against what I can glean from newspaper accounts:

Dear Professor Bernstein,

The editor of the Catholic Missourian passed on to me your editorial, "Keeping Racism Alive," regarding the Southwest Airlines "Eeny Meeny Miny Moe" case, and I read it with great personal interest.

One year ago today, I lost my job over Eeny Meeny Miny Moe. Although my case didn't
receive much national press that I know of, it was widely discussed in the St. Louis media in November 2002. What didn't make it to the news was the final denouement: that I ended up having to leave my job with a settlement that didn't come close to covering the undeserved damage to my professional and personal reputation. I hope Jennifer Cundiff is counting her blessings that her employer stood behind her. Mine didn't. You may be interested in adding this example to your next book or treatise (or just shaking your head in disbelief).

Here's the story (short version): I was the Public Relations Director for a St. Louis-area racially-mixed municipality. Part of my job was to assemble an annual event calendar that is mailed to residents and businesses. The city's Arts & Letters Commission sponsors an annual photo show, and from those entries, the commission chooses 13 photos to be printed in the next year's calendar. The process is very thoughtful and democratic. As a council-appointed commission, Arts & Letters is charged with making decisions on matters of art, and their decisions are final. For the 2003 Calendar, they chose a cover photo showing the feet of several children in a circle with their toes touching. The title of the photo was "Eeny Meeny Miny Moe."

The photos were chosen in April and the calendar production process did not begin until fall, at which time the photos were sent to the printer for scanning. Meanwhile, I designed the publication with a desktop publishing program, leaving blank boxes for the photos. The titles and photographers' names were placed below the boxes. The original photos and titles were rarely seen together until final insertion of the scanned images by the printer. As I entered, checked and rechecked the titles and names, my main concern was spelling and correct typeface and color. "Eeny Meeny Miney Moe" was simply a one-line title like the 12 others.

More than a week after the printed calendars were sent to the mailing company and distributed to employees, I got an anonymous call from a woman who professed to be a resident. She said she had received her calendar and was offended by the cover photo and title. It wasn't until she asked me how the rhyme ended that I made any connection to the racist version of this centuries-old celtic nursery rhyme. Her claim that she was a resident was my confirmation that the calendars were already being delivered to residents' homes and that nothing could be done to change it. When a publication is "on the streets" and there's a mistake, the only thing a PR
person (or newspaper or magazine editor) can do is explain how the mistake happened and apologize, which I did.

A couple days later a few employees complained and refused to accept my explanation and apology, accusing me of doing it deliberately. Upon checking, we determined that the mailing actually had just been processed by the Post Office and we were able to stop it before any calendars reached residents. Yes, the anonymous caller was an employee recruited by some other employees to stir up trouble. Although the mailing had already been stopped, by that weekend, my name was being slandered by a "civil rights activist" on two gospel radio stations. He urged his followers (and they obliged) to picket City Hall and jam the phone lines for three days until I was fired. He even urged them to picket my house, which thankfully, they did not. The story appeared on the front page of the St. Louis Post-Dispatch and the St. Louis American (the black weekly), ran on all the local TV stations and was discussed on the mainstream talk radio stations. The city manager, who was out of town on vacation, issued a weak statement taking full responsibility for the error. After assuring me no one would be fired and that I had broken no city work rules, he ordered a bogus "investigation," then he proceeded to "take full responsibility" by giving me an extremely severe punishment unlike any the recently retired personnel director had seen in 37 years on the job. That punishment was relayed to the activist before I had been told of it myself and it was posted on the city's website!

Needless to say, I was not going to take a pay cut, a demotion, a five-day unpaid suspension, an editorial board appointed over all my publications and a sensitivity training class nor write an apology to the four employees who complained (one of whom was on the 3-member "investigation" board....) I immediately got a lawyer, who appealed the punishment to the city's Civil Service Board and showed the city manager the error of his ways (thanks in part to a tape of the radio broadcastswhich showed the activist referring to me repeatedly as a "so-called Jew" and making derogatory statements about Jews and their feelings about the Holocaust). Over the next 2 1/2 months, we negotiated a settlement, which unfortunately I am not at liberty to describe in detail. Suffice it to say, I could have gotten much more, judging by the public reaction to the case and just a few weeks later, to the Southwest case, had I taken it to the Civil Service hearing and on to a trial. However, I did not want to spend one more minute working in such an atmosphere. So I offered to leave in exchange for compensation for the fact that my professional reputation had been so damaged that I would be unable to find a job in public relations, not to mention the mental anguish and physical distress that led to a dangerous hike of my blood pressure.

By the way, the photographer, who also titled the photo, is a 42-year-old black woman who is an investigator with the St. Louis Public Defender's office. She shot the photo of her own kids playing tag with two other children in a park. I was in touch with her during the whole controversy. She voluntarily came forward and appeared on television and spoke to print reporters to say she had no racist intent whatsoever. She was outraged that her innocent art was being twisted into something ugly, and she said so. But the protestors still found a way to turn it on me and the heat intensified, with some accusing me of "shifting the blame to that black woman." The president of Arts & Letters also came forward to describe the process (which was a blind judging procedure with the titles and photographer's names on the backs of photos to avoid bias in judging) and assured the public that there was no racist intent by anyone.

I think you'll agree that this is another extreme case of "You Can't Say That." The offensive word wasn't substituted or implied, let alone used, and certainly not by me. The irony is, there are plenty of red-necked racists in that City Hall, but I am not one of them. It's a shame that some of these activists do not spend their energy fighting real racism in housing, employment, education and health care, rather than attacking a fellow equal-rights believer over a slur thatdidn't even happen.

Like Jennifer Cundiff and Joseph Groh I was too busy doing my impossible job of trying to please everybody while meeting relentless deadlines to think about perpetrating some racist act.

Thanks for speaking out on this subject and for your continued study of it.

Eileen Duggan, Scapegoat
St. Louis, Missouri

 
[Eugene Volokh, 2/5/2004 10:54:40 AM]
Freedom to leave: As you may recall, the Paul Craig Roberts column that I criticized argued:

Compare an American taxpayer's situation today with that of a 19th century American slave. Not all slaves worked on cotton plantations. Some with marketable skills were leased to businesses or released to labor markets, where they worked for money wages. Just like the wages of today's taxpayer, a portion of the slave's money wages was withheld. In those days the private owner, not the government, received the withheld portion of the slave's wages.

Slaves in that situation were as free as today's American taxpayer to choose their housing from the available stock, purchase their food and clothing, and entertain themselves.

In fact, they were freer than today's American taxpayer. By hard work and thrift, they could save enough to purchase their freedom.

No American today can purchase his freedom from the IRS.

Slaves could also run away. Today, Americans who run away are pursued to the far ends of the earth. Indeed, the IRS can assert its ownership rights for years after an American gives up his citizenship and becomes a citizen of a different country. The IRS need only claim that the former American gave up his citizenship for tax reasons.

     I condemned this comparison on various grounds, but I didn't focus on the "No American today can purchase his freedom from the IRS" argument, because I know little about tax law. However, thanks to some help from a colleague, and a bit of research, I think I have something of an explanation.

     As best I can tell (and I should stress that I'm not as positive about this as I am about my other criticisms, because I do know little about tax law), the IRS does continue to assert some claims over people who give up citizenship for tax reasons. But these claims are quite limited, generally to already owed taxes and income that is earned within the U.S. There was apparently a proposal to also require tax-motivated expatriates to pay capital gains on property that was bought in the U.S., but that seems to have been defeated. (If you bought stock in the U.S. for $1 million, and it appreciated to $5 million, you generally don't have to pay taxes on it until you sell it; the proposal would have treated your departure as a sales-like event, at which you would have to pay the taxes.) As best I can tell, you may have to pay capital gains on such U.S. property when you sell it, even if you're no longer a U.S. citizen or resident when you sell it, but not at the time you leave. (This seems to be a fair summary of the law; key point: "[A]ny income earned outside the U.S. after expatriating and any income from investments held outside of the U.S. after expatriating would be free of U.S. taxes. In addition, any assets that were outside the U.S. would be free of any U.S. estate taxes.")

     Now as I said, I am quite prepared to hear many criticisms of what the IRS does; and it may well be that these particular tax rules are wrong. But they are limited to income you earned or earn in the U.S., and to property you own in the U.S. If you do want to "purchase [your] freedom from the IRS," you may just sever all ties to the U.S. -- (1) leave the U.S., (2) give up U.S. citizenship, (3) stop making money in the U.S., and (4) make sure that you pay any back taxes you owe, or taxes on property that you own in the U.S. This should be generally quite doable for most people, except those who have indeed gotten into huge tax debt. If France will take you, move to France and become a Frenchman, and stop earning money in the U.S. or owning U.S. property. The U.S. will leave you quite free to do so.

     So let's summarize the comparison (again, assuming that the data that I have about 26 U.S.C. 877 is basically correct):

Slaves, as Roberts describes them	Slaves, in reality	U.S. taxpayers, as Roberts describes them	U.S. taxpayers, in reality
Some slaves "with marketable skills . . . worked for money wages," with "a portion . . . withheld" to pay "the private owner." "[T]hey were freer than today's American taxpayer. By hard work and thrift, they could save enough to purchase their freedom."	They could buy their freedom only to the extent that state law allowed manumission, and only if the owner decided to make good on his promise -- he could just, if he wanted to, seize the money the slave had earned, not free them, and sell them off to make still more money.	"No American today can purchase his freedom from the IRS."	Americans can pay off their tax obligations (which I suspect are generally far less, compared to their yearly income, than the cost of a slave's freeing himself would be compared to his yearly income), sever all ties to the U.S., and that's the end of the IRS's control over them.
"Slaves could also run away."	And get beaten, maimed, or killed if they're caught.	"Today, Americans who run away are pursued to the far ends of the earth."	Again, if they pay any back taxes and sever all ties to the U.S., there'll be no pursuit.

So I ask again: What do we make of Roberts' claim about how slaves are "freer" than the American taxpayer, even if freedom is limited solely to the ability to leave?

 
[David Bernstein, 2/5/2004 10:13:42 AM]
Red and Blue Books: Fascinating post at the Marginal Revolution about "Red" and "Blue" books. Basically, with few exceptions the left and the right don't read the same political books. No wonder each side thinks the other is from outer space!

I have some personal experience with this phenomenon, as You Can't Say That! has definitely turned out to be a "red book." I had hoped my book would have some crossover appeal. It can be construed as an "anti-PC" book on the one hand, but also as an appeal for true diversity and pluralism, and for ACLU free speech liberals to retake the high ground from the censorious elements on the left. Well, Amazon has a list of nineteen books bought by folks who bought my book, and every single one of them is a libertarian or conservative book. As Mike Rappaport notes, contra Cass Sunstein, it's on the internet, and not in the traditional media world, where people tend to get exposed to viewpoints that challenge their own.

 
[Tyler Cowen, 2/5/2004 08:17:57 AM]
Immigration: what might work? Let�s go back to the original list of policy alternatives:

1. Let everyone in.
2. Let everyone in but terrorists and the infectious.
3. Let many people in but try to control their behavior ex post.
4. Try to keep as many people out as possible.
5. Try to influence who gets in.
6. Create new and differential legal categories, as the Bush plan would do, or as the Germans have done.

I am skeptical about 1-3 and 6, for reasons already outlined. #4 would be an economic catastrophe, whereas #5, taken alone, does not apply to illegal immigrants, the biggest potential problem. What then to do?

I suggest the following:

a. Significantly increase legal immigration
b. Apply significantly harsher penalties to the hiring of illegal immigrants
c. Change who gets in legally

In short, substitute legal for illegal immigration. Let us put the pieces together as follows. A legal immigrant is better for the country than is an illegal immigrant. It also is better for the immigrants. So by substituting legal for illegal immigration, we can keep or extend the benefits of immigration, while preventing economic catastrophe for American businesses. At the same time we can keep the humanitarian benefits of immigration.

Can we reduce illegal immigration? Yes. There is considerable scope for tougher enforcement of current immigration laws concerning employers. After all, if a non-English-speaking Mexican immigrant can find an employer, the INS can too. We can lower the demand for illegal labor quite easily, if we so wish. Lowering the demand for such illegal labor will lower the supply. We do, however, need to resolve to follow through on such penalties. If we can promise American business that total immigration will go up, this might prove politically acceptable.

The problem, of course, is one of political trust. I do not want to cut illegal immigration without also raising legal immigration. Others may not wish to increase legal immigration without first cutting back on the illegals. In politics it is often difficult to achieve two ends at the same time. Immigration quotas would be changed by law, but the strength of enforcement is a more bureaucratic decision. Perhaps the two cannot be bundled together so easily.

A second problem is what to do with current illegals. Amnesty might be ideal but it is politically infeasible and creates credibility problems the application of future penalties. Alternatively, we could wait for many to leave the country, following the application of tougher employer penalties.

Some people think that immigration law should put American interests first. Others think we should be more cosmopolitan and humanitarian. I like to think that my proposal makes sense under either view. Furthermore the anti-immigration crowd might be willing to accept more immigrants if there is greater control over who comes in, and if the entire process is brought under the law to a greater extent.

I haven�t finishing outlining the proposal for reform. Tomorrow I will consider how we might change the standards for who gets in. In the meantime, thank you all for writing with your ideas and suggestions.

 
[Sasha Volokh, 2/5/2004 08:14:03 AM]
Another note on Marxism: Over at Southern Appeal, guest blogger Owen Courr�ges finds my note below (the part about the "Marxism had little to do with actual socialism" argument) misguided and writes:

Sure, there are people who assume the label of 'communist' who claim to be anarchistic, and these people are different from the Stalins and Castros of the world. However, it is a mistake to take such people seriously on matters of political organization, since their view of a perfect society happens to be an impossible utopia, based upon premises far outside of actual experience.

The truth is that communism cannot exist without force because it depends so heavily upon squelching individual human ambition and making it subservient to the community. The momement an individual in a communist society attempts to take property for himself, or trade with others for his own profit, there must be a collective force available to stop his activities. That neccessity leads to a strong government, which eliminates any potential for an anarchistic communism. Even softer forms of communism must eventually evolve into their totalitarian bretheren. Accordingly, I'd prefer to see the whole lot discredited, regardless of what luminaries might be contained within their numbers.

I agree with all of the preceding, except with any part of Owen's post that suggests that he and I disagree. My view is adequately expressed in Update 3 of my post below, where I said:

But if you're trying to justify a different hypothetical implementation, it's not enough to just produce the history of 20th-century totalitarianism. Of course, we do start out with that as step 1. Step 2 is where the proponent says, "Yes, I agree you that Soviet-style socialism was awful, I'm against it, that's not true Marxism (or something similar), and my philosophy avoids that." Step 3 is where you say, "But wait a minute, here's my political-science theory where I argue that any socialism degenerates into something as bad as Soviet-style socialism, because it requires so much control over people's behavior that you need a powerful police state, the worst get to the top, etc., etc." Step 4 is where the proponent has to show how his proposed implementation avoids that problem.

My only problem is with the argument that stops at step 1. Step 1, "How can you believe that after all those millions killed under Stalin, etc.!", is adequate against an actual apologist for the Soviet Union. Anti-totalitarian communists, however, deserve the dignity of at least getting to present their case in step 4.

I agree with Owen: I very strongly suspect that all such "alternative communisms" will fail at step 4, for all the reasons he gave. But how often have I (or other libertarians) run across the dismissive line, "Why, free-market capitalism was tried in the 19th century and failed!" Then we say, "Well, that wasn't really free-market capitalism," and it's the neo-Marxists all over again. The logic of certain arguments requires that we entertain them up to a certain point. Neo-Marxists at least claim to have an argument that's still valid after the fall of the Soviet Union, and we shouldn't dismiss them unless (and, I would say, until) they fall down at step 4.

 
[Tyler Cowen, 2/5/2004 05:28:10 AM]
Changing editors at The New York Times Book Review: Michael, at www.2blowhards.com offers his usual astute commentary on the possibilities for the new editorship at NYTBR. Here is some of his advice:

"# I'd de-emphasize new books somewhat, especially new literary books. Have you ever looked at a copy of a year-old Book Review Section? Nearly all of the lit-fiction that was reviewed so earnestly at the time -- as though the books, and the evaluation of them, were really important matters -- is impossible to recall.
# I'd spend more time covering the activities of bookmaking and of interacting with books. The making, reading and enjoyment of books is a fascinating cultural adventure that deserves much notice, IMHO.
# I'd pay much more attention to the fiction people really read.
# I'd open the geographical focus up. I'd make regular efforts to connect with other parts of the country, and even (though not so often) other countries.
# I'd provide coverage of many more kinds of books -- kids' books, "graphic novels," art books, reference books, inspired trash books ...
# I'd talk to bookpeople: designers, printers, bookstore owners, jobbers and warehousers, managers of print-on-demand shops, the person who buys books for Costco, people who write porn online, publishers, the queen of knitting books, copyright lawyers, the editor of the "For Dummies" series, people who take part in slash-fiction sites ...
# I'd run provocative and controversial thought pieces."

I especially like his discussion of how covering books should be more like covering cooking. But his first and best point is: "I don't care." I don't care either, but for different reasons. I look forward to the Review every Sunday morning, but I hardly read the reviews themselves. Instead I use it for the advertisements alone. I care much more about who runs the ads than who is editor. The bottom line: most intellectuals don't spend much time with NYTBR, and those that do usually have their own standards for deciding what they want to read.

Wednesday, February 04, 2004

 
[David Bernstein, 2/4/2004 08:21:27 PM]
Employers and "Reasonable Accommodations" for Religious Employees: In reaction to Eugene's post about a pharmacist who refused to prescribe the morning-after pill, and laws that prohibit "discrimination" against such employees, such laws are foolish, and pervert the concept of discrimination. Employers should be permitted to fire any employee who refuses to do his job, because of his religious convictions, or for any other reason. Firing someone for not doing his job based on religious conviction is not discrimination, it's treating the employee exactly the same as the employer treats everyone else--you refuse to do your job, you're fired!

While it's nice if employers choose to accommodate (i.e., give special treatment to) religious employees, they should be under no legal obligation to do so. Interestingly, the same conservatives who complain about "special treatment" when it's provided to racial minorities tend to strongly favor it with regard to religious individuals, and indeed argue that it should be compelled. Case in point: the religious woman who, represented by the American Family Association, won a large settlement from Dairy Mart, her former employer, after she refused to sell its "pornographic" magazines and Dairy Mart fired her.

 
[Eugene Volokh, 2/4/2004 06:12:28 PM]
Clayton Cramer on Paul Craig Roberts: Clayton Cramer, who knows a lot about antebellum history (he is the author of Black Demographic Data, 1790-1860: A Sourcebook (Greenwood Press, 1997)), has a detailed response to various statements Roberts has made about slavery. Readers of this blog know that I have many differences with Clayton Cramer; but I have always found him to be quite reliable and temperate in his historical claims about gun control (the field in which he has done the most writing), and I am quite disposed to trust him on the slavery points. A few key items that undermine Roberts' claims, though read the entire Cramer post for more:

1. In colonial and antebellum America, slaves could buy their freedom, but only with the acquiescence of their masters. All property held by a slave was legally owned by the master. At any time, a master could confiscate any money that a slave had saved up, and the slave had no legal recourse. No agreement that a master made with a slave was legally binding . . . .

2. Especially after 1822, most slave states prohibited masters from freeing their slaves without approval of the state legislature. . . .

3. After 1740, many colonies prohibited teaching slaves to write; the slave states continued these laws, adding prohibitions on teaching slaves to read after Turner's Rebellion in 1831. These laws were clearly not always followed, but they are another reminder that the slave states did not believe in private property rights--they did not allow masters to educate their property.

5. . . . Southerners certainly did enslave blacks--those children born to slave women . . . .

Oh yes, let me mention, only one slave state made it a crime for a master to rape his slaves, and that was Mississippi. If the slave was under 12. And even that law didn't get passed until 1859. . . .

Given all this, is it really the case that, as Paul Craig Roberts writes, "It would require an empirical study to determine whether more people have suffered at the hands of the IRS or at the hands of 19th century slave owners"?

 
[David Bernstein, 2/4/2004 05:22:25 PM]
Jewish sovereignty: True or false? Israel is the first sovereign Jewish entity since the failure of the Bar-Kochba revolt again Roman rule of Judea in 135.
False.
I know of several others: (1) A Jewish commonwealth briefly existed (for thirty years, as I recall) in Persia in the fifth century, following a revolt against Zoroastrian persecutions. I read about this years ago, and can't find any linkable information about it on the web [update: a reader provides this link, which references a Jewish kindgom in Babylon (Persia) in the 6th century that lasted for seven years]; (2) Until Islamic times, there were many Jewish Arabian tribes, not all of which followed the rabbinic customs developed by communities influenced by the Mishnaic/Talmudic traditions. These tribes were wiped out by Muhammed's expansionist warfare, and some scholars think Islam was highly influenced by their beliefs; (3) a "Jewish" (scholars still dispute the origins of the community) Beta Israel kingdom flourished from approximately the 11th to the 14th century in Ethiopia; and (4) Until they were overrun by the Mongols, the Khazars, a Turkic people in Central Asia ran a "Jewish" kingdom for a few centuries; the royal family, many nobles, and some commoners converted in the 9th century, and their descendants kept the faith; some Ashkenazic Jews, including, according to recent genetic studies, a high proportion of Levites (I am one, and perhaps my slightly Asiatic eyes are evidence) have Khazar ancestry.

If anyone knows of other examples, let me know.

 
[Eugene Volokh, 2/4/2004 05:16:45 PM]
Paul Craig Roberts responds: Paul Craig Roberts understandably takes exception to my criticism of his work. He writes:

I believe your comments on my article criticizing the Heritage Foundation's economic freedom index misrepresents my message.

Historically, self-ownership is defined as ownership of the products of one's labor. "Free labor" is labor that owns itself. This is the only comparison I made between a US taxpayer, a medieval serf and a 19th century slave. My statement that a slave could purchase his freedom is accurate, as is my statement that an American cannot purchase his freedom from the IRS. Unlike a 19th century slave, an American taxpayer has no chance whatsoever of owning the products of his own labor. This point is independent of the percentage of slaves who managed to purchase their freedom.

In my column, I was criticizing an "economic freedom index" that completely ignored this important similarity of the lack of self-ownership. I made no statement about the slave's emotional state, nor that of the US taxpayer.

The IRS treats people very badly also, imprisoning them for "cheating" that is, for trying to keep a little more of the products of their labor.

Economically, mistreatment of slaves makes no sense. Capitalists normally do not destroy their own investments or poison their workforce against them. It would require an empirical study to determine whether more people have suffered at the hands of the IRS or at the hands of 19th century slave owners.

My critique of the freedom index did not attempt any such comparison. I merely noted that in terms of self-ownership, equality before the law, and the Blackstonian legal principles that protect the innocent, a true freedom index would give the US a very low score.

I stand by this point.

Southerners did not enslave blacks. The institution pre-existed and came from Africa itself. Slaves were brought to the US South because there was fertile land and no labor force. Southerners were born into the institution just as were slaves. Slavery was an economic institution independent of racism. Its days were numbered, because it is not as efficient as free contracted labor and population growth was creating a labor market. I make no apology for slavery, not even for the kind the US has today.

A few thoughts:

1. "Free labor" might be defined as labor that owns itself, in the sense of being able to keep the fruits of the labor. But freedom is generally defined to mean a lot more than that. When Dr. Roberts wrote that, among other things, certain slaves who were "leased to businesses or released to labor markets, where they worked for money wages" (part of which was given to the slaveowner) "were as free as today's American taxpayer to choose their housing from the available stock, purchase their food and clothing, and entertain themselves," and "In fact, . . . were freer than today's American taxpayer," because "they could save enough to purchase their freedom." I thought it most odd that this comparison about who is "freer" omitted some pretty important aspects of freedom:

   Conspicuously omitted from the comparison: Pre-Civil-War slaves could be sold by their masters. The masters could sell one's spouse, or one's children, and you might never see them again. The masters could sell one's daughters into prostitution. In some states, it was illegal for slaves to be educated. Slaves naturally didn't have constitutional rights, such as freedom of speech. Masters could, to the best of my knowledge, engage in a broad range of corporal punishment (all of course without any requirement of due process). The masters surely could try to stop slaves from running away, and to my knowledge many slaves were murdered while trying away. Need I go on?

   Perhaps most slaveowners didn't abuse their slaves. But freedom that depends entirely on the grace of one person isn't usually thought of as freedom. And of course restrictions on education, free speech, the right to move to other places, and so on were often imposed by state law. I continue to think that a comparison of "freedom" as narrow as Dr. Roberts' is a remarkably blindered comparison. (I also of course stand by the many other criticisms of Dr. Roberts' work that I made in my original post.)



2. I would say the same about Dr. Roberts' suggestion that "It would require an empirical study to determine whether more people have suffered at the hands of the IRS or at the hands of 19th century slave owners." I'm glad to endorse lots of criticisms of the IRS. But I'm pretty certain that we need no empirical study to conclude that chattel slavery -- people owning other people, people having pretty broad powers to beat and rape other people, people being killed for trying to flee, people being denied the right to be educated, or to speak out, and much more -- is much worse than even the Internal Revenue Service.



3. Also, while I'm pleased that Dr. Roberts "make[s] no apology for slavery," I don't quite understand his point that "Slavery was an economic institution independent of racism." Blacks, not whites, were enslaved. The law had long recognized the fundamental dignity and basic human rights of white citizens -- that's what the federal and state Bills of Rights were all about (as to rights against government), and what the common law and state statutes secured (as to rights against others). It had no respect for the fundamental dignity and basic human rights of black slaves. Of course slavery was an economic institution. But it was an economic institution that was heavily dependent on racism, since it existed only to the extent that people were willing to deny to blacks the same rights to which whites were indubitably entitled. What name is there for that but racism?
   
        (UPDATE: A reader suggests that Dr. Roberts' point was that slavery throughout the world was independent of racism. Actually, as best I can tell most slavery, in the post-classical period, did depend at least on some degree of racial or ethnic prejudice, since generally -- though by no means always -- the people enslaved were members of other ethnic groups than the enslavers. But in any event, slavery in America was intimately tied with racism. That slavery wasn't related to anti-black racism in other places, or might not even have been related to racism at all in a few places, strikes me as beside the point. Genocide isn't inherently anti-Semitic, but the Holocaust was anti-Semitic; slavery isn't inherently racist against blacks, but American slavery was racist against blacks.)

 
[Eugene Volokh, 2/4/2004 04:11:27 PM]
Pharmacist refuses to fill prescription for morning-after pill: An AP story reports:

About 40 people gathered outside an Eckerd store Monday, protesting what they said was a decision to deny a rape victim a prescription for the morning-after pill.

A spokesman for the Largo, Fla.-based company confirmed that Eckerd has taken disciplinary action in response to an incident at the pharmacy. . . . .

"A prescription is filled regardless of one's religious, moral or ethical belief. Failure to comply would result in disciplinary action, and that has occurred," [an Eckerd spokeswoman said]. . . .

Morning-after pills are higher doses of the hormones in regular birth control pills and have been sold under the brand names Plan B and Preven since 1998.

Taken within 72 hours of unprotected sexual intercourse, the pills are at least 75 percent effective at preventing pregnancy. They work by preventing ovulation or fertilization of an egg. If fertilization has occurred, they prevent the egg from implanting into the uterus -- the medical definition of pregnancy.

A few observations:

1. The federal Civil Rights Act requires employers to provide "reasonable accommodations" for employees who have religious objections to certain job rules; many similar state laws impose similar obligations. At least two courts have held that employers therefore may not punish empoyees for refusing to assist with abortions. See Tramm v. Porter Mem'l Hosp., No. H 87-355, 1989 U.S. Dist. LEXIS 16391, at *33 (N.D. Ind. Dec. 22, 1989) (concluding that a hospital had to reasonably accommodate a nurse who objected to cleaning instruments that had been and would be used in abortions, applying Title VII and the Free Exercise Clause); Kenny v. Ambulatory Centre of Miami, 400 So. 2d 1262 (Fla. App. 1981) (concluding that a hospital had to reasonably accommodate a nurse who had objected to assisting with abortions, applying state law but borrowing by analogy from the Title VII undue hardship cases). And the same would apply, I think, to employees who refuse to assist by providing morning-after pills. It doesn't matter for these purposes whether morning-after pills really are like abortions or not. Rather, what matters is whether the employee sincerely believes (not reasonably believes, but sincerely believes) that his religion (or his conscience, since Title VII has generally been interpreted as applying a similar rule for deeply held secular moral beliefs) prohibits him from providing these morning-after pills.
   
        Note, however, that this requires only reasonable accommodation, defined as accommodation that doesn't impose undue hardship on the employer (or, presumably, on its customers). So if the pharmacist is the only pharmacist on duty -- which may well have been the case here -- then an employer probably would be able to insist that the pharmacist fill the orders, since otherwise the employer would lose the customer. But if there are several pharmacists in the store, and at least one of them doesn't have any moral objection, then Title VII would probably give the objecting pharmacists a right to refuse to provide the morning-after pills, and to instead refer the matter to the nonobjecting pharmacist. (I realize that some objectors might object even to referring the matter to the other pharmacist; but I don't think that Title VII would require employers to accommodate that sort of belief, since such an accommodation may pose an undue hardship on the employer and the customers.)



2. But wait, there's more! Many states have laws that provide much greater protections specifically to people who object to helping in abortions. Consider Texas Occupations Code ? 103.001:

   A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to directly or indirectly performing or participating in an abortion procedure may not be required to directly or indirectly perform or participate in the procedure.

   This law gives absolute protection to the employee, with no regard for how much of a hardship this might oppose on the employer or the employer's clients. But it also applies only to (A) employees of health care facilities and (B) abortion procedures. Texas Labor Code ? 401.011 (admittedly a different statute, which might not be seen as applying to the Occupations Code) actually defines "health care facility" in a way that would cover pharmacies; "health care facility" is defined to mean "a hospital, emergency clinic, outpatient clinic, or other facility providing health care," and "health care" is defined to mean "includes all reasonable and necessary medical aid, . . . medical treatments, . . . and medical services," including "a prescription drug, medicine, or other remedy." Texas Health & Safety Code ? 245.002 defines "abortion" to mean "an act or procedure performed after pregnancy has been medically verified and with the intent to cause the termination of a pregnancy other than for the purpose of either the birth of a live fetus or removing a dead fetus. The term does not include birth control devices or oral contraceptives." Under this rule, use of a morning-after pill wouldn't be an abortion because it isn't done after the pregnancy has been medically verified. But again, the Health & Safety Code provision is a different statute, aimed at regulation of surgical abortions; the definitions in it might not apply to the Occupations Code.
   
        This makes me think that the Occupations Code provision probably wouldn't apply here -- but that many opponents of morning after pills might be interested in broadening the Occupations Code rule, and similar rules in other states, to cover morning-after pills. It will be interesting to see whether this incident, or other similar incidents, will build support for such statutory changes.



3. Finally, laws that prevent clinics or pharmacies from insisting that their employees help in abortions might at some point be seen as imposing an "undue burden" on women's right to an abortion (just as a state law that prevents the Boy Scouts from insisting that their scoutmasters not be gay imposes an unconstitutional burden on the Scouts' First Amendment right to express those messages that they want to express). But the law in this area is unclear, and I suspect that it would require some evidence that the law is really making it very hard for the clinics and pharmacies to provide abortion services.

(Thanks to reader Dylan Alexander for the pointer to the news story.)

 
[Sasha Volokh, 2/4/2004 02:16:14 PM]
Back to the Holocaust: For my previous comments on the Holocaust (prompted by David Bernstein's post on Mel Gibson), see post #1 and post #2.

Lynn B. at InContext was "simmering" after my first post; but in her update (after my second post) she says that she still disagrees but now understands where I'm coming from, and promises a possible future post where she goes into greater detail. She also points to a post by Meryl Yourish, so let's go there. Meryl says (formatting retained but links omitted):

Its uniqueness was due to the fact that a nation set out to exterminate all the people in a certain ethnic group, all over the world. Hitler started with the Jews of Europe, and did an astonishingly thorough job. His goal was to continue until the entire planet was judenrein. He didn't "just" kill a lot of Jews. He created an efficient, organized death machine whose purpose was to eliminate Jews from the planet. It wasn't just mass murder. Its purpose was the extinction of the Jews. Exctinction. Let me say that one more time: The extinction of the Jews. Had he succeeded in Russia, Sasha, neither you nor your brother would be alive to blog today. Had he defeated the United States, then I wouldn't be alive to write this today.

Another aspect of the uniqueness of the Holocaust is that many of the nations which Hitler conquered were willingly complicit, helping to round up Jews and ship them off to the camps. They, too, wanted to see a world without Jews. No such thing happened in any of the other atrocities you mention. Pol Pot wasn't aided by Korea and Thailand. Stalin didn't have help from China. Hitler had his adherents in eastern Europe, even in Poland. Read the stories of Holocaust survivors. Polish Jews were massacred by the Poles while under German rule. Half the world was complicit in this, Clayton. That's why it remains emphasized. Not because Jews control the U.S. media. Because the world let it happen.

As Lynn pointed out, this isn't a question of which killing is greater than which. It's the concept of the elimination of an entire people from the face of the earth. In his attempt to eliminate world Jewry, Hitler destroyed two-thirds of the Jewish population of Europe. The amorality of it isn't in the killings, Sasha. The amorality of it is in the attempt to eliminate an entire people from the face of the earth. That is the Holocaust's moral uniqueness, and that is what you should "believe" in. Yes, Stalin killed more Russians. But Stalin wasn't trying to eliminate all Russians from existence. There was no "Final Solution" for him, or for Pol Pot, or for some grisly serial killer.

So it's the purpose that makes the Holocaust specially evil, according to Meryl: setting out to kill every single Jew, and succeeding in killing six million, is morally worse than setting out to kill an equivalent number of random people, and succeeding in killing six million.

Alas, I still don't buy the moral uniqueness. To repeat my point from below: the Holocaust is evil because killing six million Jews is six million murders, and committing six million murders is highly, highly evil. Really evil. But not more evil than killing six million other innocents. (As I've mentioned below, the Holocaust also has lots of characteristics that make it especially grisly, especially memorable, especially important as a cautionary tale, especially relevant in a world of ethnic warfare, etc.; but you can be all those things without having extra evil.)

Take any six million people murdered. You can draw a circle around them and say, "These six million people define a particular group X," and the killing of these people is especially evil because it's the systematic extermination of everyone in group X. Of course, in the general case, there's nothing "special" about group X. It's just a somewhat random assortment of people: {Fred, Dave, Sasha, ...}. Why should the set Y = {Jews} be "special"? Only because there's something special about having Jews in the world. But "an entire people" has no moral value, except insofar as that "people" contains people. I don't care whether Jews as a group exist; but I do care about every individual Jew, as much as I care about every individual whatever-else. Corollary: Every group X containing six million people is equally valuable, and any murder of any group X is equally immoral.

Tangential note: I've gotten some e-mails saying that the Holocaust is 11 million dead people, of whom 6 million were Jews. I don't know what the canonical definition of "Holocaust" is; Merriam-Webster says it's the slaughter of "European civilians, especially Jews"; whatever it is, I'm just sticking with the Jews because it's the Jewish part of it that people tend to claim is morally unique.

Second note, on complicity: In Meryl's post, I'm not sure what work the complicity of other nations is doing for you. That just makes it a mass murder with lots of responsible parties. More people to punish, perhaps, but having lots of participants doesn't make an act more evil.

Third note, on intent and criminal law: Several correspondents have noted that not all killings are created equal: after all, in criminal law, we do distinguish between different kinds of killings, based on intent. True enough, but if we're going to rely on intuitions culled from criminal law, those intuitions actually favor my view. "Intent" is a very particular animal: in the words of Glanville Williams, "A consequence is intended when it is desired to follow as the result of the actor's conduct." I've got a gun, I knowingly point it at you and pull the trigger, knowing that you'll probably die as a result and desiring that you die -- that's murder. Did I do it for money? For sex? To eat you? Because I hate Jews? Those sorts of motivations are irrelevant to whether it was murder.

Now, motive isn't always irrelevant in criminal law: see, e.g., crimes defined in terms of doing an act with some further intention; defenses based on the rationale of justification (like self-defense); whether disconnecting someone from a life-support system is considered a mere (non-criminal) omission or culpable homicide; and "hate crimes" (where such a statute exists). And motive is usually considered relevant to sentence. See generally Kadish & Schulhofer, Criminal Law and Its Processes 214-15 (6th ed. 1995) (citing useful sources). But many of the above are properly viewed as exceptions, not the general rule; "hate crimes" and the like are highly controversial (and I'm not a fan of such laws); you can justify self-defense without having recourse to motive; and sentencing is based on a lot more than just how evil the act is, so differences in sentencing doesn't necessarily imply a different intuition about the evil of the act.

In short -- while it's not clear that the actual practice of criminal law should have any moral weight -- if you're going to use the criminal law in this debate, most of it doesn't support the idea that racially motivated mass murder is worse than any other mass murder.

 
[Eugene Volokh, 2/4/2004 12:47:11 PM]
Is the University of Michigan planning to violate the First Amendment? John Rosenberg points to a Detroit Free Press article by a columnist who says that

Establishment opposition has also hampered the initiative's efforts to find legal counsel. Most of the lawyers who specialize in state constitutional law work for firms affiliated with one of the two parties, and law firms who work for the University of Michigan have been put on notice that assisting Connerly's campaign could jeopardize their firm's business relationships with U-M.

     If this allegation is correct, then it seems likely (not certain but likely) that U of M would be violating the First Amendment. Under Board of Commissioners v. Umbehr (1996), the government may no more discriminate against contractors based on their political advocacy than it may fire employees based on the employees' political speech. The government does have some power to fire employees or retaliate against contractors if the employees' or contractors' speech interferes with the efficiency of the government operation (for instance, if it causes a substantial amount of dissension within the workplace, or jeopardizes confidential relationships). But it may not retaliate simply because it disapproves of the political position that the employee or contractor has taken, or the laws that the employee or contractor is trying to promote. Moreover, while Umbehr said it was limited to decisions about whether to terminate or to fail to automatically renew a contract, the analogy to government employees suggests that the same rule should apply to decisions about not entering into a contract in the first place, or refusing to renew a contract where the renewal wouldn't have otherwise been automatic.

     So, as I said, it's not clear that there's a First Amendment violation here: The government, whether as employer or as contractor, has considerable latitude in terminating employees or contractors whose speech jeopardizes the government's efficiency. But when the speech is advocacy of a ballot measure (or, I would say, legal support for groups that advocate a ballot measure), then the government would have to show some really serious disruption that the speech causes. Absent some such evidence, which I doubt would be present here, the U of M's action would be unconstitutional.

UPDATE: The original version of the post erroneously asserted that U of M's president is Lee Bollinger, is a noted First Amendment scholar -- reader Aaron Hill, however, pointed out that I was behind the times: Bollinger is apparently now president of Columbia.

 
[David Bernstein, 2/4/2004 08:59:15 AM]
My New Evidence Treatise: You can now purchase my new, coauthored treatise on expert evidence, The New Wigmore: Expert Evidence, from Amazon. The publisher's website (which is only selling the book as part of a series, though I've been promised the site will be updated and clarified) describes the book as follows:

Expert Evidence, by David H. Kaye, David E. Bernstein and Jennifer L. Mnookin, describes and analyzes all major facets of the law of evidence pertaining to expert evidence including:
* new Federal Rule 702 on expert testimony implementing the Supreme Court's opinions in Daubert, Joiner, and Kumho Tire
* cases questioning the admissibility of previously established techniques in forensic science such as fingerprints and handwriting analysis
* the use of learned treatises in lieu of or in addition to experts
* methods for evaluating statistical evidence and enhancing statistical testimony at trial
* neutral experts appointed by the court and other forms
In addition, it describes the historical origins of demonstrative evidence and incorporates recent social science research on visual processing into its analysis.

To me, what's unique about Expert Evidence, not just among treatises on expert evidence, but among evidence treatises generally, is that is that it takes state law as seriously as federal law (so, for example, we devote much attention to the Frye general acceptance test, still buoyant, e.g., in New York, Caliornia, Florida, and Illinois). Also, it's the only evidence treatise out there with in-depth treatment of issues such as the admissibility of learned treatises (we argue that they must pass a reliability test because they are expert testimony as well as hearsay), expert witness qualifications (a medical expert should be deemed qualified only if he passes a "reasonable patient test), and more.

Have a serious interest in reviewing the book for a legal periodical? And some reason to believe that a legal periodical will publish your review (best to ask in advance!)? For a review copy, contact Annie Cavlov, Product Manager, at (212) 597-0382.

Meanwhile, if you're a litigator, you will certainly want a desk copy, or at least one for your firm library!

 
[Tyler Cowen, 2/4/2004 07:17:37 AM]
A further comment on immigration: Several of you have written me and claimed that we already let in everyone who wants to come. I've seen similar arguments circulating around the blogosphere.

This is simply untrue. Some illegals overstay their visas, but of course visas are hard to get in the first place, especially if you are from a poor country. Most illegals cross the Mexican border, whether or not they are Mexican. Crossing the border currently costs about $1500, plus it involves a dangerous four-day trek. The migrant has to carry his own food and water, plus there is a significant risk of banditry. You never know whether or not your "coyote" has set you up for robbery.

I have done fieldwork in rural Mexico and I know quite a few Mexicans who would like to come. They don't come for two reasons. First, they don't have the $1500 or even close to it. Second, they are terrified to cross. Women especially are afraid of the hardships and are afraid of rape. Crossing through Mexico is all the harder if you don't speak Spanish or know Mexico well, which is the case for the non-Latin migrants who try to cross.

In sum, the current policy is not close to letting everyone come in. If we opened the border more formally, many more people would come.

 
[Tyler Cowen, 2/4/2004 07:09:57 AM]
Immigration, part II: Yesterday I considered how we might think about immigration reform. One key problem was our limited ability and willingness to treat immigrants on a harsh and differential basis. This problem resurfaces in a number of guises.

Let us now consider option number 3 (see the link for the full list), namely taking in many immigrants and then trying to regulate their behavior. We could try something like the following:

a. Give them all electronic bracelets and track them
b. Build American life around hard-to-forge identity cards
c. Make many of them live in Nebraska, thus limiting crowding and assimilation problems

Of course you might need some combination of a. and b. to enforce c. But if you could implement the right combination of these ideas, many of the afore-mentioned costs of freer immigration would go away.

Western Europe has implemented some version of b, but keep in mind that the idea might work less well in America, even putting aside civil liberties concerns. We have more immigrants, more territory, and a less regulated economy. If cards were required, many immigrants would end up living "off the grid," so to speak. Attempts at regulation could increase rather than decrease control problems. You can stipulate the cards by law, but employers will simply hire uncarded employees. Cards don't matter much if people are willing to break the law in the first place. After all, isn't a valid visa or green card already a carded "solution"?

When it comes to the other options, we are unwilling to create two classes of people within U.S. borders: the controlled and the uncontrolled. It is unappetizing, to say the least, to stop a Mexican from moving out of Nebraska. A Mexican might prefer a controlled existence in the U.S. to life at home, we are the ones who object. If we are to opt for control, we need a method of control that is politically acceptable and compatible with basic liberties at home. Furthermore the enforcement problems are daunting. If we can't keep Mexicans from moving illegally from Tijuana to Texas, we can't keep them from moving illegally from Omaha to Texas.

So I will rule out option number 3, namely taking in immigrants but making greater efforts to control their behavior ex post. Soon I will turn to some options that might work.

 
[Randy Barnett, 2/4/2004 06:46:43 AM]
Cato Book Forum Today on RealAudio/Video: If you cannot attend today's book forum on Restoring the Lost Constitution at the Cato Institute--featuring comments by Walter Dellinger and Judge David Sentelle--you can watch or listen to it using RealVideo or RealAudio. It starts at 4:00pm ET. Click here for more information.

 
[Eugene Volokh, 2/4/2004 06:02:54 AM]
Cybercafes required to videotape "all entrances and exit points and all interior spaces, excepting bathroom and private office areas," so that they can "delineat[e] on playback . . . the activity and physical features of persons or areas within the premises": That's what a Garden Grove, California city ordinance requires -- because apparently three of the 22 cybercafes in the city have had serious gang problems, and two others have had some other crime problems -- and the California Court of Appeal has just upheld this. The two-judge majority and the one-judge dissent are here; they're actually pretty easy to read. There's also a short article about the case here.

     I think this is not a doctrinally easy case. But though I think some of the dissent's rhetoric is a bit overheated, and the law is far from clear here, I share some of the dissent's misgivings. Legally mandated videotaping of places where people congregate to read and write is not something to be done lightly, or accepted lightly. Even if such a requirement is constitutional, it's troubling that Garden Grove has imposed such a requirement specifically on speech-related activities, and imposed it on all cybercafes, including the great majority that have no crime problem. (I realize that if the law targeted only those cybercafes that have had some gang activity, this might just push gangs to those cybercafes, since apparently Garden Grove gangs seem to prefer cybercafes. But I suspect that the level of likely gang activity is also related to the cafe's location and to other factors, so there may well be many cybercafes that will be required to videotape even though there would never be any substantial gang activity there.)

     People worried about slippery slopes, by the way, might be interested in this sentence from the majority:

With the near ubiquitous use of video surveillance in retail establishments, at automated bank teller machines, and at road intersections, it is difficult to imagine, certainly at the preliminary injunction stage, that the customer's expectation of privacy is reasonable under the circumstances.

I'm not sure that there was ever a reasonable expectation of privacy related to one's presence in a public place; but the court's argument suggests that even if such a privacy might have once existed, the increase in the number of videocameras in public places has over time eliminated it. Aha, an anti-surveillance advocate would say: That's why you need to stop public surveillance at the very beginning, before one form of surveillance is used to justify another, and ultimately any right to be free from public surveillance is lost.

     Incidentally, this is the second WESTLAW-accessible court opinion that uses the term "blogger" (the first is Batzel v. Smith from the Ninth Circuit, handed down two months ago), and the first that uses the word "blogging." No specific blogs cited, I'm afraid. Other interesting items in the opinions: The sentences "Wow!" in the majority, and "Sigh" and "Guess what?" in the dissent.

 
[David Post, 2/4/2004 04:19:27 AM]
To The Archeologists of the Future: Should you have unearthed, during your digging around the detritus of our long-vanished civilization, the Op-Ed article in yesterday's New York Times by Erin Sullivan ("The Stars Have Voted"), do not be misled. You wouldn't know it from reading the article, but we actually did not believe that the configuration of the stars at the moment of one's birth held the key to one's destiny. What possessed the editors of the NY Times -- the "newspaper of record"! -- to publish an apparently serious discussion of the Democratic hopefuls' horoscopes is beyond my comprehension. Slow news day, I guess.

Tuesday, February 03, 2004

 
[Sasha Volokh, 2/3/2004 08:15:36 PM]
New proposed slogan: Kerry is so very, for those of you who remember the ad slogan for Keri lotion. (I watched a lot of TV commercials during the '80s.) Of course, when you run anything by Google, you find that others have been there first. See here, here, here, etc.

UPDATE: Thanks to reader Reid Palmeira for finding the Keri website.

 
[Sasha Volokh, 2/3/2004 07:39:16 PM]
SOLOMONIA finds it disconcerting that I don't believe in the moral uniqueness of the Holocaust. He leaves it to others to refute me, but he has a go at it anyway, pointing to anti-Semitic statements by the Palestinian Authority as evidence that the Holocaust is part of a history of anti-Semitism that isn't over yet. (He also takes issue with Clayton Cramer's claim linking the prominence of the Holocaust to the media influence of Jews -- though I don't think Clayton's saying what you think he's saying there.)

Now, the Holocaust is special in various ways. Unlike most other atrocities, it has a specific and important anti-Jewish element, which makes it relevant to modern anti-Semitism. Obviously, it had a racial element (like some other atrocities, but not all), so it's relevant to race relations generally, and people being singled out because of an accident of birth has its own emotional impact, as does people being singled out because of the cultural or religious community they belong to. It was more systematic than some other atrocities, which gives it special importance as an illustration of what an evil government can do if it puts its mind to it (so it may have more relevance as a cautionary tale for, say, the design of political systems). It had its particularly horrific elements -- camps, ovens, and the like -- which makes it particularly spine-chilling. And it took place in a highly developed, industrialized country that didn't have much previous history along those lines, so it's a good illustration of how quickly things can go sour and therefore how important it is to guard against this sort of thing even where you don't think such vigilance is necessary.

But none of that is moral uniqueness. A serial killer may kill more grislily than someone who's in it for the money; a lynching may be more shocking, or may tell us more about deep political issues, or may be more socially harmful in some sense, than a random drive-by shooting; but all of the above are immoral because they snuff out an innocent life. The same right is violated in each case. Similarly, the reason it's immoral to kill 6 million Jews is because doing so involves 6 million acts of murder. Do I care any extra that they were killed because they were Jewish, or that their killing was systematic? Yes, in various senses, but not in the moral sense.

UPDATE: Thanks to readers Don Meaker and Reid Palmeira who agree with me. Don thinks the Holocaust is (wrongly) considered more important than, say, Stalin's killings because leftists believe (or, at least, historically have believed) that fascists are more evil than Communists. Reid thinks it's (perhaps understandably) considered more important because there was more contemporaneous reporting of it in the West. A third reader writes, in all capital letters, "I HAVE BEEN READING THE BLOG SINCE THE BEGINNING AND FOR THE FIRST TIME I DO NOT UNDERSTAND WHAT YOU ARE SAYING."

 
[Eugene Volokh, 2/3/2004 04:38:48 PM]
Interesting perspective on the Clark campaign: I can't speak to its accuracy, but it struck me as worth reading.

 
[Eugene Volokh, 2/3/2004 04:33:01 PM]
Ancient Rome: Just wanted to thank again everyone who responded to the ancient Rome question that I posed a few months ago -- I have all the responses (over 200 of them), and I will definitely go through them in several weeks, as soon as I get the Crime-Facilitating Speech piece (and a couple of the pieces that I might be splitting off from it) out the door. And when I do go through them, I'll definitely post something of a summary. Much appreciate the input.

 
[Eugene Volokh, 2/3/2004 04:11:38 PM]
Not the best headline: From the Chicago Sun-Times:

Orland Park Muslim activist appeals his exile to high court

(Thanks to Jim Maule for passing this along.)

 
[David Bernstein, 2/3/2004 04:10:12 PM]
Sharpton: The exit polls show Sharpton getting 10% of the vote in South Carolina, which various pundits had claimed he might win. Now that it's become clear that Sharpton wasn't even a serious contender for the black vote, should we allow the Democrats a moment to wallow in their shame for allowing this racist demagogue a forum all these months for fear of offending black voters? And a similar moment of shame for Republicans, who didn't raise the issue in the hope that Sharpton would become a serious candidate and thus an embarassment to the Democrats?

 
[Eugene Volokh, 2/3/2004 04:06:27 PM]
More speech suppression: From the Tampa Tribune:

After moving to Florida from Pennsylvania this summer, [Krista] Abram, 16, spent her first few days attending Tarpon Springs High School bewildered by her peers' and teachers' ambivalence to the daily sight of Confederate battle flag images at the school's north Pinellas County campus.

Abram saw dozens of students wearing shirts, hats, belt buckles and more adorned with the Confederate battle flag. Then there were stickers on book covers, car bumpers and lockers -- all with the flag, some with hurtful slogans.

One of the worst is: "If I had known this, I would have picked my own cotton,'' she said.

Her father is black, her mother white. . . .

[Abram] wrote a critical flier, made a sheaf of copies and began circulating them in school this month denouncing the use of the Confederate emblem.

On Tuesday, she passed around a petition urging that the rebel flag be banned from the campus, and garnered 94 signatures.

After school, she was suspended for 10 days -- for distributing unauthorized material on school grounds.

Student petitions and fliers require approval of the school's administration, which Abram did not obtain. Administrators declined to comment. . . .

Ron Stone, spokesman for Pinellas County schools, said the circulation of the flier led to the suspension. "The principal was not aware of the petition, only the flier, which was becoming disruptive,'' he said. . . .

     I'd like to know exactly how this was becoming "disruptive." Under the leading Supreme Court precedent in this area -- Tinker v. Des Moines Indep. School. Dist -- schools can restrict speech when it seems likely to be disruptive, but it really has to be disruptive, just not offensive to some people.

     But even if this caused some disruption, or, even in the absence of disruption, if the school has a genuinely content-neutral, even-handedly applied restriction on distributing unauthorized material (something it might be able to do in its capacity as property owner), is 10 days' suspension really a sensible punishment for the awful crime of distributing fliers and petitions without authorization?

     Thanks to reader Brett Verona for the pointer.

 
[Sasha Volokh, 2/3/2004 10:10:32 AM]
Yet again on Proculian Meditations: Proculian Meditations says, commenting on my earlier post:

Here's the sad part, the state of politics in the capitalist (so-called) democracies is now so degraded that anyone who points to the fundamental importance of class struggle can be dismissed as a joke or as the intellectual equivalent of a single-celled organism (aka "strident libertarian").

This is P.M.'s "point[ing] to the fundamental importance of class struggle":

As if elections make a difference! When all of the candidates reflect the interests of the ruling capitalist class, who cares which thief steals the election? . . .

So-called "libertarians" exist because it is in the interests of the ruling class to detach social issues like gay rights from the only issue that really counts, class struggle. . . .

Every drop of ink (or keystroke) wasted on this issue [creation science and evolution in public schools] functions to distract attention from the three issues that really count. What are those three issues? Class, class, and class.

This is in three consecutive posts; the omitted language in those three posts is barely longer than what I quoted. This is, indeed, "point[ing] to the fundamental importance of class struggle," pointing and nothing else. As Eugene notes: "Genuine bile, not just substantive disagreement but vituperation, aimed at others on the Left who aren't radical enough. Broader bile aimed at everyone else, thus guaranteeing that one's appeal will be limited to readers who really enjoy being angry, contemptuous, and strident." It's the rhetoric that's embarrassing to listen to, not the positions.

Now I know what you're thinking: O.K., Volokh, but why waste all this space on Proculian Meditations? Because I actually like to read intelligent, thoughtful people of this perspective. Class struggle really is interesting, even from an economist's perspective: lots of policies may be in the interest of a class but never get enacted; in the Marxist view, this is because the other class gets in the way, and in the economist's view, it can also be because collective action is difficult and individuals pursuing their own goals get in the way.

The modern-day non-Marxist economist differs from the Marxist (1) in stressing methodological individualism, i.e. classes don't act by themselves, so you have to explain behavior at the individual level; and (2) in suggesting that even once you establish that members of the "working class" (however defined) have a unitary goal and could achieve it with enough organization, maybe these goals aren't in the greater interest anyway, so thank goodness for the failures of collective action that lead to their failure. In any case, it's an interesting question for me, one that maybe deserves more discussion.

I also agree with P.M. that Marxism had little to do with socialism as actually implemented in socialist countries. This is an important view -- see the article "There Is No Communism in Russia" by Emma Goldman, the work of George Orwell (including Homage to Catalonia); both of these authors are sympathetic to the anarchist style of communism. Maybe it's unfortunate that the fall of the Soviet Union has discredited other possible varieties of socialism, not because I think any of these are good ideas but because these other views have subtly different counterarguments, and besides, some of the greatest anti-totalitarian writers of the 20th century were socialists/communists/anarchists of the anti-Stalinist persuasion.

And P.M. is also onto something important in his comment on Reinhardt; it's true that the legal process often serves the function of validating the system it's embedded in, in the sense that people can be mollified to support a fundamentally unjust system because they get the illusion that they'll get "justice" by recourse to a supposedly independent court system. P.M. and I may disagree on whether the current system is unjust and, if so, in what ways, but the basic point is important (and is also stressed by libertarians).

And, alas, I don't get to read as much stuff from a Marxist perspective as I'd like, so I'd like to get some in digestible blog form. So where are these intelligent Marxist blogs? 'Cause if this is a satire, it does an injustice to the complexity of real, subtle Marxist thought; and if it's serious, it does an injustice to the complexity of real, subtle Marxist thought.

UPDATE: Reader Gareth Morley says the following are intelligent Marxist blogs (comments are paraphrases of Gareth's words):

• Socialism in the Age of Waiting, which considers whether Marxists should support capitalism and "imperialism" against feudal reaction in the Middle East, admitting that socialism is not on the agenda.


• Normblog, the blog of Norman Geras, a biographer of Rosa Luxemburg who is also Hitchensite on the Iraq War.


• Critique, not a blog but a Journal of Socialist Theory; interesting thinkers but terrible writers.


• The Early Days of a Better Nation, the blog of sci-fi writer and intelligent anti-Hitchensite Ken McLeod.


• And this is the web site (not blog) of Erik Olin Wright, who's one of the school of Marxists known as "analytical Marxists," who more or less endorsed methodological individualism and rational choice.

I've checked out a couple of these myself and they look interesting. Thanks!

UPDATE 2: One reader suggests Legal Fiction as an example of a Marxist blog (he calls it a "dumbass marxist blog" and says, "this dumbass thinks republicans don't understand economics"). Well, it looks to me like it's just a left-of-center blog that offers cogent economics-based arguments against Republican policies. Real Marxists, please! Reader Jason Walta points us to John E. Roemer's web site -- he's apparently "one of the foremost economists working on analytic marxism and theories of distributive justice. His primer Free to Lose (a not so subtle jab at Uncle Milt) is a classic."

On the "satire or not satire?" issue (which, frankly, doesn't interest me that much), reader Mike Aracic suggests that the term "Proculian" may be intentionally obscure and inappropriate: we don't know much about the Proculian school of Roman law (see also here and here), but what little we know suggests that it has little or nothing to do with Marxism of any sort. Mike also suggests for another good Marxist site.

UPDATE 3: Reader William Modahl doesn't like my characterization of any Marxist thought as "real" or "subtle":

"Real, subtle Marxist thought"? After the horrific 20th Century, in which tens of millions of people were murdered by socialist governments, or died in wars brought about by them, I would think you would hesitate to use such a phrase. Would you say "real, subtle National Socialist thought"? (There were some serious intellectuals who wrote on it.) I don't think so. Did you know that Hitler (in his "Table Talk") said everything he believed came from Marx? Mussolini was a Marx disciple, and even wrote a book on Marx. "Class struggle?" A phrase stained with blood of countless victims. Russian, Chinese, and other socialist barbarisms "not really Marx?" We've heard that before - from apologists for tyranny. Perhaps a good starting point for you would be the short biography of Marx in Paul Johnson's "Intellectuals."

First, the number of people a philosophy has killed doesn't disqualify practitioners of the philosophy from being "subtle." A philosophy, like a philosopher, can be evil and yet subtle. I'm not very familiar with Nazi intellectuals [UPDATE: Martin Heidegger of course, hat tip to reader Robert Light], so I can't speak directly to that point, but of course I have no objection to characterizing some of it as subtle if that's what it was; just to repeat myself (I am large), subtlety is consistent with evil.

(What do I mean by being "subtle"? Not much -- just, at the very least, using reasoned argument and not ad hominem attacks, and actually looking like you've thought through a particular problem on its own terms and not reused trite catch phrases. None of that makes a wrong philosophy right, or an evil philosophy good, but it does make the difference between a tirade you can ignore and an argument you should answer.)

Second, what does the "blood of countless victims" and the history of "tyranny" and "murder[] by socialist governments" prove? A lot, if you're trying to justify actual Soviet-style (or other historical) socialism: then, just trot out the facts and let them speak for themselves. (Not that any facts, even these, can really speak for themselves; I just think these particular facts shift the burden onto the proponent to show what positive features can counterbalance these negatives.)

But if you're trying to justify a different hypothetical implementation, it's not enough to just produce the history of 20th-century totalitarianism. Of course, we do start out with that as step 1. Step 2 is where the proponent says, "Yes, I agree you that Soviet-style socialism was awful, I'm against it, that's not true Marxism (or something similar), and my philosophy avoids that." Step 3 is where you say, "But wait a minute, here's my political-science theory where I argue that any socialism degenerates into something as bad as Soviet-style socialism, because it requires so much control over people's behavior that you need a powerful police state, the worst get to the top, etc., etc." Step 4 is where the proponent has to show how his proposed implementation avoids that problem.

If you're talking to a Step 4 guy, then it's wrong to recite all the awful facts of Communism, and it's wrong to say something along the lines of "The fall of the Soviet Union discredits your theory." Maybe it does, in the end, but you have to evaluate his Step 4 argument on the merits and not dismiss him by a guilty-by-association-type argument.

UPDATE 4: P.M. bashes Henry Farrell at Crooked Timber (in ways that don't make me think more highly of P.M. himself -- "a soothing bed-time story for frightened children"?) and concludes:

On a more hopeful note, Volokh the Younger actually appears to be intellectually curious about real Marxism. Perhaps, he might consider the possibility that the blogosphere isn't the place to begin a Marxist reeducation. Sasha, how about Das Kapital?

Had I but world enough and time, William. We bloggers don't have time for this thing you call "reading." Seriously, though, I would prefer post-Soviet, or at least anti-Stalinist, Marxism. Not that Marx is pro-Stalinist or anything, but as I explained above, I'm interested in people who jump straight into step 4, that is, who recognize and respond to the political-incentives issues raised by actual socialist experience. Also, pace P.M., I insist on methodological individualism. You say, "If the methodological assumptions of neoclassical economics were valid, then class-based analysis would be beside the point." I say, Yup. But seriously, you can still talk about classes within methodological assumptions, you just need to give them microfoundations. If Keynesian macroeconomics can reinvent itself, post-Lucas, why not Marxism?

UPDATE 5: Reader Jason Walta says: "On reading Das Kapital: don't be cowed. Here's a tip that'll save you a little time. Skip Vol. 2 altogether, and most of Vol. 3. Pretty much all the really good stuff is right up front in Vol. 1."

 
[Tyler Cowen, 2/3/2004 08:16:06 AM]
Rethinking immigration: Let us think about immigration policy in general terms. Here are some basic options:

1. Let everyone in.
2. Let everyone in but terrorists and the infectious.
3. Let many people in but try to control their behavior ex post.
4. Try to keep as many people out as possible.
5. Try to influence who gets in.
6. Create new and differential legal categories, as the Bush plan would do, or as the Germans have done.

Start with #1 and #2, which to my mind won't work in today's world. I do favor increased levels of immigration, but not laissez-faire. What are the problems?

a. American cities and suburbs would become ringed with shantytowns
b. American hospitals and medical facilities would become overburdened
c. Some immigrants would pose threats to public order
d. Assimilation might become more difficult, as the numbers of immigrants from each region increase
e. The political backlash would be enormous

The net result would be bad for the immigrants as well as bad for the United States. Even if you count an immigrant's welfare as equal to the welfare of an American citizen, free immigration would not prove sustainable. Keep in mind that one percent of the Chinese population is about thirteen million people.

Note that none of these are economic problems in the narrow sense, although they have economic aspects. Most are cultural problems. If America becomes too much like the dark side of Brazil, our broader freedoms might erode. Healthy societies require a certain degree of consilience between cultural, economic, and political power.

Some of the problems could be avoided if we are sufficiently harsh. We could to some extent avoid hospital burdens by throwing people out into the street, rather than taking them into emergency rooms. We could limit shantytowns by aggressive zoning and bulldozing. We could limit a crime outbreak by sufficiently harsh enforcement and penalties. Welfare for immigrants would of course be out of the question.

We can now see the core problem. Solving the problems of immigration is not compatible with how we wish our government to behave more broadly. Nor do we trust our government to treat immigrants one way, but maintain a broader humanitarian face toward its citizens. Given this set-up, how should we think about immigration reform? To be continued...

 
[David Bernstein, 2/3/2004 08:11:18 AM]
Judicial Running Dogs of Capitalism: More Proculianisms:

There is not a single judge on the federal bench who isn't willing to be dishonest if that is necessary to serve the interests of the capitalist class. Some judges, like Reinhardt, are dishonest in the service of capitalism with a "gentle mask," and others, like Kozinski, are dishonest in the service of greed unbound. The whole point of the judiciary in a capitalist society is to mask relations of power in the thin veneer of the rule of law.

In fairness, this perspective used to be very common on the legal left, and has been overtaken by a focus on issues of race, sex, etc.
This blogger claims to be an untenured professor at a school that likes to think of itself as a top ten law school. That either means it's (1) a very clever satire; (2) he/she is lying; or (3) he/she doesn't care much about staying anonymous. There are only a handful of untenured profs at the fifteen or so "top ten" schools, and it's not like someone like this could resist using the phrase "class struggle" in public occasionally, is it?

 
[Juan Non-Volokh, 2/3/2004 07:29:25 AM]
Embedding Not a First Amendment Right: Today the U.S. Court of Appeals for the D.C. Circuit rejected a claim by Larry Flynt and Hustler magazine that journalists have a First Amendment right to be embedded with military units so as to facilitate war coverage. Specifically, Flynt claimed a right (in his attorney's words) to "go[] in [to battle] with the military." As the Court explained the claim

This right is different from merely a right to cover war. The Government has no rule�at least so far as Flynt has made known to us�that prohibits the media from generally covering war. Although it would be dangerous, a media outlet could presumably purchase a vehicle, equip it with the necessary technical equipment, take it to a region in conflict, and cover events there. . . .

With that distinction made, appellants� claim comes more sharply into focus. They claim that the Constitution guarantees to the media�specifically Hustler�s correspondent�the right to travel with military units into combat, with all of the accommodations and protections that entails�essentially what is currently known as ��embedding.�� Indeed, at oral argument appellants� counsel stated that the military is ��obligated to accommodate the press because the press is what informs the electorate as to what our government is doing in war.��

In rejecting Flynt's claims, the Court held that the FIrst Amendment right asserted simply does not exist. The full opinion in Flynt v. Rumsfeld is available here.

 
[David Bernstein, 2/3/2004 06:15:36 AM]
You Can't Say That! Website: The site, just launched, is meant to provide complementary and supplemental materials for readers of my You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, especially for students interested in pursuing related topics for research papers for First Amendment seminars or undergraduate courses in Civil Rights and Civil Liberties. Among other things, the site has links to as many of the footnoted sources as I (and my RA) could find online, as well as links to additional sources not cited in the book, to related op-eds, and to reviews. The site is something of an experiment and is very much a work in progress, so I would appreciate any feedback readers would care to give me. The idea is to harness the power of the web to make my scholarly work more useful and accessible. Let me know what you think.
UPDATE: BTW, An outfit on Amazon call A1techbooks claims to be selling new copies of You Can't Say That! for $5.99. Caveat emptor. The book isn't in remainder, and I don't know of any conceivable way this seller could have received a stockpile of books (normal Amazon price: $14) to sell at this price (and it's not just one book, I ordered one to see what would happen, and the listing remained on Amazon). The website listed for the seller, a1books.com (the seller's email adress), lists the selling price as $13.80. [The apparently mistaken listing is gone now.]

Monday, February 02, 2004

 
[David Bernstein, 2/2/2004 09:25:28 PM]
Bush's "Radical" Budget: Bush's latest budget apparently isn't as profligate as his first three, but the way the Times and Post are going on, you would think we were seeing the second coming of Grover Cleveland (whose portrait proudly hangs in my office). Here is the money quote from the Post: "In all, Bolten said, the budget would kill 65 federal programs and significantly trim 63 others. That would save $4.9 billion in the next fiscal year, which starts Oct. 1." Remember, that's $4.9 billion out of a $2.4 trillion budget; after a 20%+ real increase over three years; and after adding a new budget-busting Medicare entitlement. That Bush is really taking an axe to the budget!

 
[David Bernstein, 2/2/2004 08:07:49 PM]
Big News From Israel: Sharon has made plans to evacuate all Israeli settlers from Gaza, and most from Samaria. Some accuse him of trying to distract attention from his domestic political woes, notably a bribery scandal. But I also think that Sharon, while a Likudnik ideologue, is first and foremost a Zionist and a military man--seeing no hope for a reasonable settlement with the current Palestinian leadership, he wants to withdraw Israel to defensible boundaries, defensible not just militarily, but in the sense that they won't overtax Israel's civilian economy and civilian morale by requiring extended reserve duty tours by reservists (Israeli males serve in the reserves for many years after their required military duty).

 
[Tyler Cowen, 2/2/2004 06:05:21 PM]
Garcia Marquez: I very much enjoyed Garcia Marquez's new memoir, Living to Tell the Tale. I would go so far as to call it a modern classic. It is both poignant and slow, and quite out of temper with what passes for entertainment these days. Nonetheless I found it to be entrancing in a virtually Proustian manner. By no means do I admire everything by Garcia Marquez, nor do I like his pro-Castro politics. But here we have an autobiography that is also a novel, and a novel that is also poetry. Recommended.

 
[Eugene Volokh, 2/2/2004 02:08:09 PM]
The thought never even crossed my mind when naming Benjamin:

Tacking Jr. or II onto a boy's name is too common, a new father decided, so the self-described engineering geek took a software approach to naming his newborn son.

Jon Blake Cusack talked his wife, Jamie, into naming their son Jon Blake Cusack 2.0.

Version 2.0 was born Tuesday . . . .

Jamie Cusack said she didn't concede until the week before the birth. She said she had "picked out the theme of the baby's room and done other things. I decided to let Jon have this."

After 2.0's birth, the Cusacks sent out an electronic birth announcement.

"I wrote in the birth announcement e-mail stuff, like there's a lot of features from version 1.0 with additional features from Jamie," Jon Cusack said.

 
[David Bernstein, 2/2/2004 01:33:09 PM]
Think Fingerprint Evidence is 100% Certain? Think Again.

 
[David Bernstein, 2/2/2004 01:08:45 PM]
Being upfront about Affirmative Action: Stuart Taylor argues that universities should be required to reveal the scope and content of the racial preferences they use in admissions. I don't know that I'd require this of private universities, but I do know that while I have ambiguous views on the merits about preferences, I hate the hypocrisy, obfuscation, and outright lying that often accompanies them. Consider the response of a dean of a prominent state law school when she was asked on national television in April 1995 why there was "a widespread perception that the minorities who are admitted with those special considerations are the result of standards being lowered." She responded that law schools do not lower standards to admit minorities. Rather, when schools "'choose between two equally qualified persons,' . . . [they] pick the 'person of color' in order to 'do something about the really fundamental problem of racial prejudice in this society." Geez, well I guess the whole controversy over Prop 209 and later Bollinger was over nothing, then.

 
[Jacob Levy, 2/2/2004 01:00:31 PM]
What does John Kerry have in common with George McGovern? (SEE SECOND UPDATE BELOW.)

Howard Dean has, of course, been the candidate usually compared to McGovern. But something just dawned on me.

If Kerry is nominated, he'll join McGovern as being the only sitting Senator to run against an incumbent President in the modern electoral era-- since Bob Dole resigned from his seat before the general election. Indeed, as far as I can recall McGovern is the only sitting Washington official of any kind to remain in office throughout a race against an incumbent president running for re-election since the turn of the 20th century. (Charles Evans Hughes stepped down from the Supreme Court to run against Woodrow Wilson.) How far back before that we would need to go I don't know-- my meory for campaign trivia runs out eventually.

I wonder how that kind of thing affects the conduct of business in Washington? W isn't much in the habit of one-on-one negotiations with backbench members of the Senate minority; he and Kerry probably don't run into each other all that often. But there are protocol issues at stake, I would think. The President properly shouldn't attack members of one of the coordinate branches as a matter of course, and to a lesser degree the same holds in reverse.

Kerry's campaign will not have one feature that Dole's would have and that (I'm pretty sure) McGovern's did. He's a member of the minority. Therefore the race won't in any way be a proxy separation-of-powers struggle. Gingrich and (to some extent) Dole talked about tilting the institutional balance of power from the President to Congress. Had Dole remained in office while running, the campaign would have taken on features of an inter-branch struggle. I'm pretty sure the Democrats controlled the Senate in 1972, but I don't know whether there were any such overtones in that race. But Kerry is not part of the institutionally dominant part of the Senate. No one is going to think he speaks on the body's behalf.

I don't have a clear conclusion here-- just noting a potentially intersting factor. I'm going to think more about what it does both to campaigning and to governing when one has this constellation of offices and roles.

UPDATE:
Whoops. Sydney Henderson points out via e-mail that John Anderson was a sitting Representative when he ran against Carter (and lost to Reagan.) The list of candidates I ran through in my head had only included Ds & Rs. That case may not have created quite the same kind of tension, since Carter clearly welcomed Anderson's campaign (Anderson had been a Republican until losing the 1980 primaries to Reagan), but it does serve as a counterexample.

Henderson suggests that, before McGovern and Anderson, the most recent case was Henry Clay in 1832.

Benjamin Harrison, suggested by a couple of correspondents, doesn't qualify-- his one term in the Senate ended a year and a half before the Presidential election in which he unseated Grover Cleveland.

If we restrict the case to Senators, then Kerry and McGovern would be the only sitting Senators in 170 years to run in the general election against an incumbent President. I can imagine a (Dean-friendly) reason for this. Unseating an incumbent President effectively requires an anti-insider campaign, a "We're going to take back Washington" theme that's just not as credibly pursued by someone running from an important Washington office. Most of the nominees who ran against incumbent Presidents seem to have been sitting or former governors, not even former Washington officials.

It's well-known that Senators do a poor job in winning their parties' nominations in the first place. The pattern I've noticed here may be purely an artefact of that fact; that is, the fact that the race is against an incumbent President may not have independent explanatory power. But my eyeballing of the lists of candidates suggests to me that there is a difference-- Washington officials in general and sitting Senators in particular are at least a little more frequent nominees when the Presidency is open than when it's not.

SECOND UPDATE: I'm slipping, and so are Volokh readers. It took hours for someone to point out the following name to me:

Barry Goldwater.

I know exactly what the synapse misfire was in my case-- I set my mental search engine on "Presidents who were elected twice" and looked at their major-party opponents when they ran for re-election. LBJ, of course, assumed office on JFK's death about a year before the '64 election.

Now I'm willing to abandon the pattern I thought I saw. Of course, the names "Goldwater" and "McGovern" suggest another pattern-- blowout defeats.

 
[David Bernstein, 2/2/2004 12:48:02 PM]
Wacky Warning Labels: The Seventh Annual Wacky Warning Label Awards are out. Blogger and GMU economics professor Alex Tabarrok won second prize for "Beware: sled may develop high speed under certain snow conditions." I like the fifth place entry, a smoke detector that read, "Do not use the Silence Feature in emergency situations. It will not extinguish a fire."

 
[Eugene Volokh, 2/2/2004 12:18:52 PM]
"[T]he gas chamber horror of North Korea's gulag": From the Guardian (U.K.):

Kwon Hyuk, who has changed his name, was the former military attache at the North Korean Embassy in Beijing. He was also the chief of management at Camp 22. In the BBC's This World documentary, to be broadcast tonight, Hyuk claims he now wants the world to know what is happening.

'I witnessed a whole family being tested on suffocating gas and dying in the gas chamber,' he said. 'The parents, son and and a daughter. The parents were vomiting and dying, but till the very last moment they tried to save kids by doing mouth-to-mouth breathing.'

Hyuk has drawn detailed diagrams of the gas chamber he saw. He said: 'The glass chamber is sealed airtight. It is 3.5 metres wide, 3m long and 2.2m high[. There] is the injection tube going through the unit. Normally, a family sticks together and individual prisoners stand separately around the corners. Scientists observe the entire process from above, through the glass.' . . .

'It would be a total lie for me to say I feel sympathetic about the children dying such a painful death. Under the society and the regime I was in at the time, I only felt that they were the enemies. So I felt no sympathy or pity for them at all.' . . .

The number of prisoners held in the North Korean gulag is not known: one estimate is 200,000, held in 12 or more centres. Camp 22 is thought to hold 50,000.

Most are imprisoned because their relatives are believed to be critical of the regime. Many are Christians, a religion believed by Kim Jong-il to be one of the greatest threats to his power. According to the dictator, not only is a suspected dissident arrested but also three generations of his family are imprisoned, to root out the bad blood and seed of dissent. . . .

Thanks to Dan Gifford for the pointer.

 
[Sasha Volokh, 2/2/2004 11:11:07 AM]
No kidding: As Eugene reports, Proculian Meditations is a hoot. There's even more than I thought from reading Eugene's post! But just when I think it might be serious, I see:

Link courtesy of capitalist dupe Larry Lessig.

Now if that isn't parody, what is? Also see: "New age neanderthal Judge Alex Kozinski" and "Ultra-right wing New York Attorney General Eliot Spitzer." Class shows up in post after post... and the blog has been in existence for two days!

Well, the blog does only put itself out as "Uncontrolled outbursts and intemperate remarks by an angry untenured law professor," which is what it looks like. And the first post does say: "I'm an untenured law professor at someplace that likes to think of itself as a "Top Ten" law school. At work, I can't afford to say what I think. So I will say it here!" Now we know the needs of untenured professors. But still... I like to rant, and I used to do it much more than I do now, and in much more strident terms too. And I have heard stuff just as bad coming out of very strident libertarians. But surely one learns better by the time one becomes a professor?

 
[Tyler Cowen, 2/2/2004 11:00:39 AM]
Our immigration policy: Many illegals who cross into the United States cannot easily be sent back to their home countries, especially if they do not come from Mexico. Nor is there any jail space to hold them. So what do we do? We release them on their own recognizance. It is estimated that about 6000 people received this treatment last year. Here is the story.

The released receive orders to show up at deportation hearings. 86 percent do not show up, hardly a surprise, I am amazed that 14 percent do show up. What are they hoping for, a green card? Or have they already soured on life in the U.S.? Many Brazilians are intentionally surrending, simply to get such a notice for a deportation hearing.

I am not part of the growing movement of market-oriented but anti-immigration economists and commentators. iSteve.com and ParaPundit.com argue for this view at length, the Lew Rockwell and the Mises Institute people sometimes push a related line. In any case stories like these show that something is surely wrong with our immigration policies, no matter where you stand on the broader issues. The sad irony is that in the short run, the policies probably aid our ability to fight terrorism. By releasing the "obviously harmless" candidates, we have more real resources to identify terrorist crossings. If we dealt with every such person, the INS would be crippled.

What then should we do? There have been successful experiments with electronic monitoring bracelets, but the dangers are obvious. I'll spend a bit more time pondering creative solutions to immigration-related problems, and pass along what I come up with.

 
[Eugene Volokh, 2/2/2004 10:19:00 AM]
Causes of homosexuality? Looking over that 1984 Heritage item with the Kristol homosexuality / free speech quote, I also saw this, from Midge Decter:

[Question:] What explains the sudden prevalence of overt homosexuality?

[Decter's Answer:] One reason for so much homosexuality is the terror that angry, truculent girls and women have introduced into the relations between the sexes. I see young boys absolutely terrified of girls. Now I suppose that boys were always afraid of girls and girls afraid of boys, but what we have now is something quite beyond that. So in my view, homosexuality is a means of escaping from girls, from women. Another contributory factor is that, like divorce, homosexuality is being made light of. It is now common wisdom what any way you do it is equal to any other way you do it, so why not? Still another factor -- and no doubt I could get slaughtered for saying this -- is that homosexuality provides a handy escape from manhood, which is to say, fatherhood. It is inevitable, when you have women attempting to escape from womanhood, that you will have men attempting to escape from manhood. I couldn't say with any assurance that I know which came first, this sudden seizure of women running away from being women, or of men running away from being men. But they are certainly interconnected.

     Seems almost quaint, the things that some people believed back then (and, who knows, perhaps still do). Seriously, are women that mean -- and men comparatively so kind and sweet -- that men become homosexual (or even that bisexuals end up leaning more towards homosexuality) to escape from women? Maybe I've just been more fortunate in the women I know than Midge Decter has.

     As to escape from fatherhood, can that really be so? I suspect that most men who don't want kids would rather have a vasectomy than changing teams. (I set aside the obvious point that many gay men are trying very hard to become fathers, either by adoption or otherwise, since I don't know how representative they are.) Yes, I realize there are mechanisms one can hypothesize even despite this: Men know that even if they get vasectomies, most women that they meet won't want long-term relationships unless there's some chance of children; so instead of just seeking out those women who don't want children, the men end up seeking out other men. But really, just how plausible is that?

     The greater acceptance of homosexuality is a much more plausible explanation for the greater incidence of overt homosexuality, and perhaps even for the greater actual incidence of homosexuality (though we don't know for certain whether there had been such an increase, since we can't know just how much homosexuality there actually was in the past). There are doubtless some people whose sexual practices are subject to substantial influence by society; bisexuals, for instance, are one example. Greater tolerance would likely mean greater experimentation and greater willingness to eventually choose homosexual relationships as one's primary behavior (or as one of one's behaviors). But the other explanations just strike me as extraordinarily far-fetched, to the point of casting doubt on the explainer's understanding of the phenomenon more generally.

     Finally, some have argued that some bisexual men may opt for homosexual sex more than for heterosexual sex if homosexual sex is simply easier to get; and, as I've mentioned before, there is reason to think that casual homosexual sex is easier to get. I think this is a plausible theory -- though "plausible" doesn't necessarily mean "correct," and I just don't know anything about the data on this. But if this is right, and if we marry it with the assumption that people's practices are as malleable as Decter suggests, then one would think that women's greater willingness to engage in premarital sex, and in casual sex more broadly (and there is evidence that women do have many more sexual partners on average now than they did in the mid-1900s, though of course there's always the possibility that they're just more willing to admit it) would decrease the incidence of homosexuality. "Save men from homosexuality, girls -- sleep around more!" I'd like that as a slogan for the anti-gay movement.

 
[Eugene Volokh, 2/2/2004 10:03:41 AM]
Which came first -- the chicken or the egg? People ask that as if it's the quintessentially unanswerable question. But of course the answer is clear: The egg.

     Why? Well, here's the literal solution: There were eggs -- for instance, dinosaur eggs -- long before there were chickens. QED.

     Enough of these lawyer tricks, Volokh, you say. Of course the question means "Which came first -- the chicken or the chicken egg?" (where "chicken egg" means an egg containing pretty much the same genes that an adult chicken would have).

     Well, then we have the biological solution: A chicken egg will always produce a chicken, since species changes happen at the time of conception, not at the time of birth. If the genes in the fertilized egg made it a chicken egg, then it will produce a chicken. But two non-chickens could produce a chicken egg. That's the way species change operates -- the mixing of genes from two individuals, likely coupled with mutation and other genetic changes, produces an individual with a new genetic pattern that can be said to belong to a new species.

     Of course, this is something of an oversimplification: Species change probably can't be delineated this precisely ("previous generation, nonchickens; this generation, chickens"). But the question itself assumes that we can somehow distinguish chickens from nonchickens, and that some change will be treated as being enough to make the resulting organism into the first chicken. Biology tells us that this change, whatever it is, will only happen at the time the egg is produced, not at the time the chicken is produced (i.e., the egg is hatched).

     But doesn't that assume the truth of the theory evolution, some might ask? If that bothers you, I propose a religious solution: In my experience, most creationists are also pro-life -- in which case, the egg is a chicken.

     (By the way, here's an entirely different solution.)

 
[David Bernstein, 2/2/2004 09:43:05 AM]
An Extraordinary Fact about Lochner: I am doing final editing on an article in which I state that "between the demise of Lochner in West Coast Hotel v. Parrish in 1937 and the publication of Bernard Siegan�s Economic Liberties and the Constitution in 1980, only a single article that expressed even mild support for Lochner was published. See Guy Miller Struve, The Less-Restrictive-Alternative Principle and Economic Due Process, 80 HARV. L. REV. 1463 (1967) (proposing a moderate application of economic due process and criticizing the Court for completely abandoning constitutional review of regulations)." If you have contrary information, please let me know.

 
[Juan Non-Volokh, 2/2/2004 09:35:53 AM]
Scarlett Letters: Grist Magazine, an online environmental journal, recently published this interview with Assistant Interior Secretary Lynn Scarlett. It is worth a read, as it provides some insight into what many in the Bush Administration are trying to accomplish in environmental policy. Scarlett exemplifies the sincere belief of many � though certainly not all � environmental officials in the administration that more flexible, market-oriented, property-based, and non-regulatory initiatives can equal or exceed the performance of another generation of command-and-control regulations.

Prior to joining the Bush Administration, Scarlett worked at the Reason Foundation, where she oversaw its public policy studies on environmental issues, among other matters. She�s generally viewed as the fount of free-market thinking within the Bush Administration�s environmental team. Unfortunately, it often appears that she is unable to get her free-market ideas put into practice. Grist readers respond to the interview here. Note that one reader suggests Scalett loses many internal battles with more pro-industry folks at Interior. Though a fan of Lynn Scarlett�s work, I am afraid that reader may be right. Last year, a group of free-market analysts got together to evaluate the Bush environmental record, and the President barely got a passing grade. (Incidentally, Scarlett responds to that evaluation here.)

 
[Eugene Volokh, 2/2/2004 08:28:28 AM]
A blast from the past: For a great parody (whether deliberate or accidental) of hard-core Marxism, see Proculian Meditations. It has it all: Pejorative yet mysterious jargon -- yes, even "running dog" makes an appearance, and our own Randy Barnett is described as a "crypto-anarchist, pseudo-libertarian" (so deep down inside he's anarchist, but doesn't admit it, yet he isn't really a libertarian, but somehow a "pseudo-" one -- uh-huh). Dark mutterings about ruling class conspiracies ("so-called 'libertarians' exist because it is in the interests of the ruling class to detach social issues like gay rights from the only issue that really counts, class struggle" -- presumably if it wasn't in the ruling class's interest, we'd somehow be vanished).

     Genuine bile, not just substantive disagreement but vituperation, aimed at others on the Left who aren't radical enough. Broader bile aimed at everyone else, thus guaranteeing that one's appeal will be limited to readers who really enjoy being angry, contemptuous, and strident. Lots of exclamation points! (though, to be frank, this is one place I deduct credit, since there aren't as many as I'd have expected). Yes, give me that old-time religion. I am impressed.

 
[Eugene Volokh, 2/2/2004 06:50:51 AM]
20 questions with Judge Stephen Reinhardt: On How Appealing this morning. As blog readers might gather, I often disagree quite strenuously with Judge Reinhardt, but it's very interesting to hear his perspective on things.

 
[Randy Barnett, 2/2/2004 03:53:55 AM]
Book Tour This Week: I will be discussing Restoring the Constitution: The Presumption of Liberty, this week in New York, DC & Chicago. Stop by to say hi if you are a Volokh Conspiracy reader (as I imagine you are if you are reading this). I am tentatively scheduled to be on the Milt Rosenberg Show on WGN-AM 720 in Chicago on Friday night, February 6th from 9-11PM CT .

Ithaca
Monday 2/2:
Cornell (4:00pm Myron Taylor Hall Room 285)
New York City
Tuesday 2/3:
NYU Law School (12:30pm Furman 214 )
Columbia Law School (6:00pm Greene Hall room 103)

Washington DC
Wednesday, 2/4:
CATO Institute Book Forum (4:00pm) (FREE REGISTRATION)
Comments by Walter Dellinger & Hon. David Sentelle

Chicago
Thursday 2/5:
John Marshall (12:00pm)

NEXT WEEK:
Minneapolis (U of Minn, St. Thomas & William Mitchell)
Houston (South Texas, U of H)
San Antonio (St. Mary's)

Full schedule is here.

Sunday, February 01, 2004

 
[David Bernstein, 2/1/2004 03:03:54 PM]
Balkin on Liberals and Bush: An interesting post from Jack Balkin on liberals and Bush, though one that assumes that Bush, or at least Karl Rove, is as clever as Jack is, which is possible but unlikely. The basic point--that liberals should think of Bush less as a right-wing ideologue (especially on economic issues) and more as a politician trying to build a solid coalition for reelection--is quite apt. As I've suggested before, though, liberals can actually take advantage of Bush's lack of interest in small government and free markets to gain some policy victories, and Ted Kennedy already has with regard to education spending.
This one, by the way, still baffles me. I keep seeing references in liberal blogs and by liberal commentators to how evil "no child left behind" is because, while it spends lots more money on education, it spends it on the wrong things--centralized dictates from Washington, education bureaucracy, formal testing standards. Yet I distinctly remember that in the 1980s, these were exactly the objections conservatives had to liberal proposals to help education--that they would federalize what had always been a flexible, local system, that they would feed the bureacracy instead of helping students, that testing is no substitute for actual learning. (Some) liberals have now adopted what were (and still are) conservative objections to what were once liberal proposals. Oh, and the objection I've seen from liberals that I really love is that "federal education spending is just a drop in the bucket, anyway," even after Bush's increases, so it doesn't really matter. Cool! Let's just abolish the DOE, then, and call it a day. (You know, $10 billion here, $10 billion there, and pretty soon we are talking about real money!)

 
[Jacob Levy, 2/1/2004 02:53:22 PM]
A less-unkind cut: This morning's NYT reports on an Italian doctor who is proposing a small symbolic cut to replace female genital mutilation, offering a procedure that really is roughly analagous to male circumcision (which the usual forms of female genital cutting are not). The question is, soughly, whether the substitution of a relatively humane procedure performed hygenically for a monstrous one performed unhygenically outweighs the cost, i.e. undermining the attempt to stamp out female genital cutting and the attitudes that generate it.

I note that this is not the first time this kind of thing has come up. A Seattle hospital considered doing precisely the same thing a number of years ago, until it was bullied out of it by activists and by Patricia Schroeder. I discuss the case, and suggest that the hospital might have been in the right, in The Multiculturalism of Fear (see pp. 53-56 and the surrounding chapter).

 
[David Bernstein, 2/1/2004 11:10:03 AM]
European Anti-Semitism: Chris Bertram at Crooked Timber links to, and endorses, a Financial Times article suggesting that concerns about resurgent European anti-Semitism are significantly overblown. I could dispute Chris's claims, but the comments to his post do a great job. One point that even these commenters seem to miss: given that only France and England have any substantial numbers of Jews left, one would think that anti-Semitism (and, for that matter, philo-Semitism), would be far lower in most European countries than in the U.S., where Jews are a quite visible, and influential, minority.
One curiosity of Chris's post is that he states, based on the article he links to, that age is not a good predictor of anti-Semitism in the U.S., a statement I knew to be false, and one which it took me exactly five seconds of Google searching to confirm to be false (search of ADL age anti-semitism).
UPDATE: More from Pejman and Yglesias.

 
[Juan Non-Volokh, 2/1/2004 11:01:49 AM]
Sunday Song Lyric: The inaugural Sunday Song Lyric seemed popular � it even spawned a Monday Song Lyric � so it continues. This week I chose something a bit more modern. It�s from one of the most under-rated songwriters of the last 20 years, Matt Johnson of The The. Though known for often drawing moody and melancholy soundscapes, some songs show glimmers of hope, recovery, and uplift. So, since I promised something less depressing than I�m So Lonesome I Could Cry, here is DecemberSunlight from The The�s last studio album, NakedSelf:

The early morning sun lit up her room
But it wasn't just a change in the weather
She'd read it in her stars and now she felt it in her heart
Life was gonna start getting better
And there was a time when she would pray
That each teardrop that rolled down her face
Would represent a day of pain for him
But now she's changing the way she feels
About wasting her time & tears
Cried out, cried out, cried out
Cried out, cried out, cried out

And all the tricks and all the lies
He tried to pull over her eyes
Kept running through her mind
She looks back in disbelief
In confusion and in grief
At what his secrecy was revealing
You can scream into your pillow
You can pray into the night
But you can't switch off your feelings
Like you'd switch out a light
But she's changing the way she feels
About wasting her time and tears
Cried out, cried out, cried out
Cried out, cried out, cried out

And now these winter skies
Turn blue and bright
And she feels alive
And wants to drink every kiss
Make up for what she's missed
And wipe him out of her mind
Some day he'll have to grow up
And come clean
And listen to the screams
Of his own conscience
Cry out, cry out, cry out
. . . And she'll not hear a sound