Friday, April 02, 2004

 
[David Bernstein, 4/2/2004 07:53:18 PM]
The Bush Administration is Finally Exercising Some Fiscal Discipline, but House and Senate Republicans won't play along.

 
[Eugene Volokh, 4/2/2004 03:43:43 PM]
"World's Leading Anglican Weekly Newspaper" demonstrates contempt for the handicapped: Oliver Kamm writes:

See if you can spot the non sequitur in this unhinged editorialising by the Middle East correspondent of the Church Times, the newspaper of the Church of England:

The assassination of the Hamas leader, who was disabled, has intensified Arab anger over what is perceived as Israel’s arrogance -- and its uncritical support from the United States.

If I were a murderous bigot in a wheelchair, I'd be pretty offended at the insinuation that I was any less culpable for my acts of terror merely because I was physically incapable of carrying them out other than through an intermediary. . . .

Remember: He wasn't disabled -- he was differently able. Really, he was.

     Read the whole post, which has a good deal of more substantive analysis. Thanks to Jerome Sternstein for the pointer.

UPDATE: Reader Lewis Maskell says the Church Times is not the paper of the Church of England, and quotes this:

The Church Times, founded in 1863, has become the world's leading Anglican weekly newspaper. It has always been independent of the Church of England hierarchy.

I don't know who's right (I assume the quote is literally correct, but that's not inconsistent with the paper's being in practice and informally the organ of the Church), so I thought I'd mention both sides. If you know more details on this, please let me know. I've also changed the post title from "Church of England demonstrates contempt for the handicapped" to "'World's Leading Anglican Weekly Newspaper' demonstrates contempt for the handicapped" just in case Kamm was mistaken and Maskell is correct, since I'd rather err on the side of caution on this.

FURTHER UPDATE: Oliver Kamm confirms that Lewis Maskell is right: "Lewis Maskell is quite correct on this: I ought to have described the Church Times as the world's principal Anglican newspaper, published independently, rather than as the newspaper of the Church of England. Apologies to Eugene for my error: I shall put an amendment on my own blog." Many thanks to Mr. Maskell for the correction.

 
[David Bernstein, 4/2/2004 01:20:44 PM]
One Last Post on Rankings: Brian Leiter provides a handy chart, with the U.S. News top 40 law schools, faculty quality as determined by Leiter's rather good survey of top law professors, LSAT at the 75th percentile (as a measure of student quality), and class size.

Leiter notes that George Mason's 165 75th percentile LSAT is based on a very small full-time class, which is true. On the other hand (and this isn't true of our competitors across the river), our part-time program is traditionally very similar to our day program statistically, and our top part-time students tend to be our best students (in part because we have a well-regarded part-time intellectual property program that attracts many older students with science backgrounds).

 
[Eugene Volokh, 4/2/2004 12:02:03 PM]
Bomb found on Spanish railway line: The New York Times reports. Thanks to Dan Schmutter for the pointer.

 
[Eugene Volokh, 4/2/2004 09:27:45 AM]
How Hollywood milks European governments, by RiShawn Biddle in the American Spectator:

To see how Hollywood has turned Germany's -- and Europe's -- crusade against so-called American cultural imperialism to Tinseltown's Titanic advantage, check out The Punisher, the action film based on a Marvel Comics comic book about a vigilante antihero.

Featuring the raffish American John Travolta as an underworld crime boss and shot in sunny Tampa, Florida, it was co-produced by Gale Ann Hurd, the mastermind behind the Terminator trilogy and will be distributed by the Canadian-American Lions Gate Entertainment and Japanese giant Sony's film division. Yet German taxpayers will foot part of the production costs for the film, which comes out this month, thanks to a film fund, a German government tax shelter originally set up to promote local filmmaking. . . .

 
[David Bernstein, 4/2/2004 09:08:49 AM]
Rankings Insanity: For all the talk, including by me, of the excessive weight given by prospective law students to U.S. News rankings, I heard a rankings story last Summer that was much worse than anything I've heard about prospective law students. I was chatting with a Yale Law student, and I asked him where Yale grads work nowadays when they graduate, recalling that in my day (early nineties) the majority were split about evently between D.C. and New York, a few in L.A., Chicago, and San Francisco, and the rest scattered around the country. This student told me that almost everyone, really almost everyone, goes to work in New York. I was taken aback; if anything, there should be fewer grads going to New York because the old first-year salary gap between New York and other cities, which used to be gaping in the case of D.C., has now largely closed. He explained, however, that Vault.com now ranks law firms by prestige, and almost all of the "top ranked" law firms are in New York, so that's where Yalies go. I couldn't believe mature adult graduates of an elite law school could be this foolish, but he insisted it was true, and, in fact, that recent Harvard and Yale grads were known to turn very attractive offers from excellent firms in Los Angeles, Chicago, D.C., and other major cities in favor of seemingly less attractive offers from top ten Vault.com firms.

UPDATE: Quare has some thoughts on "status fools."

FURTHER UPDATE: A correspondent who I'm sure would prefer anonymity writes:

I graduated in '02. The idea that "almost everyone" goes to New York firms is nonsense. I would say something like "only the losers go to NYC firms," but that would be a little too cruel to the few of my friends who did choose that path. :)

Many/most of the competitive, prestige-minded students aim for DC. They prefer the DC appellate litigation firms like Jenner, Wilmer, Kirkland, etc. Those kinds of jobs are seen as better precursors to teaching and politics.

And obviously, lots of us avoid firms altogether. Career Services at YLS has statistics on this. In the first year out, over half clerk. In the second year, over half are at firms -- but as I recall, it's something like 60-70%, meaning a large remainder chooses something else (typically: criminal work for the govt, fellowships, more school, business jobs, etc.). Of the 60-70% who do firms, I don't know what % of those are in NYC. I'd be surprised if it were much more than half. Moreover, if you look a few years down the road, the % at firms drops substantially.... Not everyone follows Vault.com to Skadden.

Plainsman of Southern Appeal agrees that my initial conversation gave exaggerated influence to Vault.com, while acknowledging that things may have worsened in the last year or two, as the rankings became more established in students' minds. And Waddling Thunder, a 2L at Harvard, agrees with Plainsman.

 
[Eugene Volokh, 4/2/2004 08:58:11 AM]
We Jews are apparently a biased, untrustworthy lot -- but at least we can read. Empty Days begin its response to my legitimacy post this way:

The Volokh Conspiracy (which is an all-jewish neocon outlet by its own admission) doesn't understand how giving some international legitimacy to the Iraq war could improve things there.

Oh, that's what's important! We're all Jews (not quite accurate, but close enough), and neocons to boot. Actually I've never said that I'm a neocon (I haven't figured out the articles of faith enough to decide whether I am or not), but never mind. Here's how our Jewish biases apparently manifest themselves:

That's interesting because that's exactly how a whole lot of people think about this. They're convinced that 90% of Iraqis are basically favorable to US presence, despite whatever reservations, and that it's only a small group of rabid insurgents who cause all the havoc and need stamping out, like a burning cigarette in a pile of hay. The logic is simple: just keep stamping out those cigarette buts and all will be well in the end.

What Volokh is not getting - or, more accurately, refuses to "get" - is that perhaps there is no such thing as the 90% popular support, however lukewarm, that the US can rely on. That the stack of hay may be too dry on trust - and it is this basic *trust* that needs restoring rather than just running around stamping out burning hate. The lack of legitimacy, which originally incited and continues to deepen that lack of trust, creates too much of an inflamable environment for that hate to propagate like a wild fire across all the disgruntled varieties of the local society.

How do you restore trust, if it wasn't really there in the first place? Sure - thanks for ridding us of Saddam, but you know what: we really don't like you, we think you are here for your own ends, you want to fight some war-on-terror that got nothing to do with us, so get the hell out. The only way to dissolve that logic is to involve the rest of the world, to show at last that you're not there only for yourself - that's what the argument of legitimacy is all about.

This is pretty fundamental. And it's too bad such a lot of people prefer to imagine that USA is at all welcome in Iraq. It's there alright - but it's not well trusted, and with good reason. If the climate was really as favorable as people here wish to believe, I don't think we'd see such a steady proliferation of hate and insurgency as we've seen in the past year. It's important to recognize that and stop acting as if all of this were nothing but an endless series of "isolated incidents" perpetrated by some misguided thugs.

(The thing about Arab League doesn't deserve much discussion - these guys won't mess with Iraq at this point for the life of them, it's too much of a messy issue, they'll rather wait to see how the UN fares in there first.)

As I said, we Jews are apparently evil and selfish, but we are smart, and we can apparently read better than other people. When reading my post, for instance:

I don't get this. It wasn't the French who killed the four contractors. It wasn't the U.N. It wasn't anyone who cares about "legitimacy." Would Islamist radicals behave any differently if NATO were controlling the show rather than the U.S.? Would the ex-Baathists? Would even the local supporters of the killers support them any less if NATO were in charge?

Now it is possible that the Islamists and ex-Baathists would be more open to the Arab League's running the occupation theory. (It's also conceivable that the same would be true if the U.N. were running it, but I highly doubt it.) But is there any reason to think that the Arab League will actually provide remotely effective security? That it would fairly treat the Shiites and the Sunni, and for that matter the non-Arab Kurds? That parts of it won't be infiltrated by the Baathists or the Islamists? Maybe I'm wrong, and maybe I'm underestimating the competence and reliability of Arab League. But I don't think so.

Legitimacy is not an end in itself, at least in this situation. It is a means towards effective peace-keeping, which of course means to the extent necessary, effective war-making (since even the most "legitimate" body will have to hunt down those people who keep fighting against them). I don't see how any of the other examples that Kaplan points to will be more effective.

we'd notice that none of it remotely relies on the notion that 90% of the Iraqis like us. Rather, the post argues that (1) there's little reason to think that Iraqis will like NATO more than they like us, and (2) even though some of them might like the Arab League and conceivably the U.N. more than they like us, being liked isn't good enough -- you also have to be effective, and the Arab League won't be.

     But the admitted Canadian (there's that little maple leaf flag on the blog, and obviously it tells us volumes) Mr. Days seems to have somehow missed this. Our flaming Jewishness must have temporarily blinded him.

 
[Eugene Volokh, 4/2/2004 08:42:39 AM]
Jon Rauch writes:

On March 22, in Gaza, Israel shot a helicopter-fired missile at Yassin. Reaction was swift and scathing. The British condemned the attack as an "unlawful killing." The European Union said that extrajudicial killings were "contrary to international law." Turkey's prime minister said, "This was a terrorism incident." Most of the United Nations Security Council lined up behind an Algerian resolution condemning "the most recent extrajudicial execution committed by Israel" and denouncing "all attacks against any civilians as well as all acts of violence and destruction."

The United States vetoed the resolution but did not directly challenge its premises, which were that Yassin was a civilian, that civilians are subject only to civil punishment, and that extrajudicial violence of any sort is therefore illegitimate. Instead, the Bush administration said it was "deeply troubled" by the Yassin killing but that the resolution should also have mentioned Hamas's attacks against Israel. See? Everyone is a terrorist, but the resolution should have named all the terrorists. Or something.

If those are the rules, then former President Clinton is a terrorist, for he, too, ordered a hit. Clinton attacked Osama bin Laden with a cruise missile and only narrowly missed. According to the New York Times, President Clinton's national security advisers have testified to the September 11 commission "that Mr. Clinton wanted Mr. bin Laden dead."

The rap on Clinton, of course, is not that he tried to kill bin Laden but that he failed. Last week, while Israeli Prime Minister Ariel Sharon was being fricasseed for hitting Yassin, the September 11 commission was grilling Clinton's former secretaries of State and Defense for missing bin Laden. Even by Washington's standards, the inconsistency was glaring. Whatever the tactical differences between the two cases, morally they are indistinguishable. . . .

The rest of the piece is also very much worth reading, as usual with Rauch's work.

 
[Eugene Volokh, 4/2/2004 08:29:09 AM]
Another K-12 school T-shirt case: From the AP:

An openly gay teenager received a $30,000 settlement from the city over her suspension for wearing a "Barbie is a Lesbian" T-shirt to school, her attorney announced Thursday. . . .

[The girl's] lawyer, Ron Kuby, filed the federal suit last June, alleging the incident was part of a series of discriminatory incidents.

Resolving the suit without litigation was "the appropriate decision," city lawyer Donna M. Kasbohm said. The city Department of Education agreed to establish a policy on student dress as part of the deal.

Thanks to How Appealing for the pointer.

Thursday, April 01, 2004

 
[Eugene Volokh, 4/1/2004 05:13:16 PM]
The limited benefits of legitimacy: Fred Kaplan (Slate) writes, about the Fallujah killings:

If there is a way to deal with the insurgents, it will be fundamentally political -- and it will have to take shape in the next few months. Two things are necessary. First, the occupying "coalition" must be broadened, and the occupation authority must be turned over to some international body. The Bush administration seems to realize this -- hence Bremer's recent urgent calls for the United Nations to mediate internal disputes in Iraq. Will an international organization -- the U.N., NATO, the Arab League, or whatever -- be more effective than the U.S.-led CPA? Maybe, maybe not. But it would be more legitimate. . . .

     I don't get this. It wasn't the French who killed the four contractors. It wasn't the U.N. It wasn't anyone who cares about "legitimacy." Would Islamist radicals behave any differently if NATO were controlling the show rather than the U.S.? Would the ex-Baathists? Would even the local supporters of the killers support them any less if NATO were in charge?

     Now it is possible that the Islamists and ex-Baathists would be more open to the Arab League's running the occupation theory. (It's also conceivable that the same would be true if the U.N. were running it, but I highly doubt it.) But is there any reason to think that the Arab League will actually provide remotely effective security? That it would fairly treat the Shiites and the Sunni, and for that matter the non-Arab Kurds? That parts of it won't be infiltrated by the Baathists or the Islamists? Maybe I'm wrong, and maybe I'm underestimating the competence and reliability of Arab League. But I don't think so.

     Legitimacy is not an end in itself, at least in this situation. It is a means towards effective peace-keeping, which of course means to the extent necessary, effective war-making (since even the most "legitimate" body will have to hunt down those people who keep fighting against them). I don't see how any of the other examples that Kaplan points to will be more effective.

 
[Jacob Levy, 4/1/2004 05:11:41 PM]
Feinberg: The University of Arizona has posted an obituary of Joel Feinberg, as has the AP.

 
[Eugene Volokh, 4/1/2004 04:07:45 PM]
Chicken law: From the Smithfield Times (in Virginia):

The Grace Street chickens remain under threat after Smithfield town attorney Bill Riddick issued one chicken owner a March deadline to get rid of her chickens or face potential legal action.

When the letter was sent, Grace Street resident Sarah Gilliam still had two chickens left after sending the rest of her brood, which included a green and gold rooster, to friends.

["]The two remaining chickens were in the midst of sitting on their eggs and I didn't want to disturb them,["] Gilliam said.

Last fall, Gilliam and her neighbor Rea Epps, were deemed in violation of a town ordinance against livestock, after neighbor Donna Stoessner complained to the town about Gilliam's chickens eating her plants.

Epps, 86, lives next to Gilliam and has kept chickens in town for over 12 years.

"They're my pets," she said, admitting that in the past, one or two chickens have flown the coop for a stroll along Main Street.

Despite a loophole in the town code that failed to include poultry as livestock, the town took a firm stance against the chickens and stuck with it -- the chickens must go.

Gilliam refused, and has declared her chickens "companion animals," and therefore not subject to the town ordinance, which is based on the Virginia state code. . . .

Gilliam sees the changing codes as a potential battle for the town. She is running for a town council slot in the May election, and said that many residents and friends have urged her to make the chicken issue one of her platforms.
"If forced to, I will take my chicken to court on a leash," she said. . . .

When asked if chickens are still living on Grace Street, [Bill Hopkins, the town director of planning, engineering and public works] replied, "I don't do chicken patrol very often."

Thanks to Becky Dale for the pointer.

 
[David Bernstein, 4/1/2004 03:57:41 PM]
Ranking the Law Schools by Median LSAT on US News's website (premium access required), Georgetown moves up to seventh, Fordham to sixteenth, BYU to 21st, U. Washington to 25th, GMU to 31st, Cardozo to 35th, Baylor to 36th, San Diego to 44th, Brooklyn to 46th, and Lewis and Clark to 47th. As I mentioned previously geographic desireability seems a significant factor in attracting good students. Given these LSAT rankings, these schools are likely much harder to get into than their ranking suggests, although an even better indication would be their twentienth percentile LSAT. Many premier state schools, including Texas, Iowa, Illinois, and North Carolina drop based on their LSAT, so these schools are likely easier to get into, especially for in-state students, than their U.S. News ranking would suggest.

 
[Eugene Volokh, 4/1/2004 02:45:03 PM]
Polls: I'd be happy to see Tom Daschle be defeated in his Senate race, but this item doesn't much excite me:

Daschle Slipping in SD Polls

In February, an Argus Leader/KELO-TV poll showed Daschle defeating Thune 50%-43%. A new poll just taken by the Rapid City Journal/KOTA/KSFY shows that Daschle is backsliding to 48%-43%. Note, Thune hasn't run one ad and just entered the race a few months ago! Daschle, on the other hand, has been running TV ads since June of 2003--$6 million worth! To spend $6 million in a small media market and slip in the polls indicates that Daschle has a lot of problems. No wonder Daschle freaked out over Tim Giago entering the race as a third party candidate.

Repeat after me: "I will not think that statistically insignificant changes in poll results are statistically significant -- even if I really, really like them."

     (If you want the details, the 50-43 poll claims "a margin of error of plus or minus 3.5 percentage points," and I suspect the 48-43 has a comparable margin of error. And, yes, I realize that one can argue that even when the 50-43 to 48-43 change is seen as no change at all, this might still be bad for Daschle. But it's not accurate, I think, to call this "slipping" or "backsliding.")

UPDATE: Glen Whitman takes a different view; but while his point may be sound in some situations, I stick by my analysis in this case.

 
[Eugene Volokh, 4/1/2004 01:30:21 PM]
Sons of Martha: Something reminded me this morning of this poem, which is one of my favorites; so I thought I'd blog a link to my earlier post about it, nearly two years ago now. One might not think a poem about engineers (more or less) could be great, but this one is.

 
[David Bernstein, 4/1/2004 09:12:31 AM]
The Israel-Egypt Peace After 25 Years: Interesting analysis here (link requires free registration with Jerusalem Post). The author notes that Begin made a huge strategic blunder in retaining control of Gaza, thereby linking it with the West Bank and strengthening Palestinian identity and the case for a unitary Palestinian state (before 1967, Egypt controlled Gaza, Jordan controlled the West Bank, and no one talked about a Palestinian state that would encompass these territories).

 
[Eugene Volokh, 4/1/2004 08:43:06 AM]
Duke University buys up public domain! IBiblio reports:

In a move shocking to all, Duke University, of Durham, North Carolina, purchased the entirety of the public domain late last evening for a fee of 2.2 trillion dollars. . . . As a result of the purchase, Duke University is the sole rights-holder to a huge collection of materials, including the Bible, the works of Shakespeare and Dante, and Francis Scott Key's The Star Spangled Banner.

Wow, quite a story.

 
[Randy Barnett, 4/1/2004 08:30:35 AM]
My Name: One of the greatest things about blogging is hearing from readers. I try to answer or at least acknowledge messages, but all too often they slip past me, especially when I am traveling. A couple weeks ago, I blogged about anti-Semitism and one reader whose last name is "Barnett" wondered how someone Jewish like me came to have such a non-Jewish sounding name. Indeed, it is so non-Jewish sounding that when I joined the Conspiracy, Eugene touted this as adding diversity because I was not Jewish. When Richard Posner did his survey of public intellectuals (for table click here), he categorized me as non-Jewish too. Perhaps both intuited that I am not observant, indeed I am no longer a believer, but I think it was my last name that misled them.

It also misled my classmates growing up. Much of the anti-Semitism I witnessed were anti-Semitic remarks made in my presence by classmates who did not know I was Jewish. I was one of only 4 Jews in a high school class of 400 in the predominantly Polish-Catholic town of Calumet City, Illinois. (Republican activist Mary Matalin lived one block over from me and was a year behind me in school.) I got into a fist fight in first grade with a boy who called me a dirty Jew, but looking back, I see no reason to think he knew I was Jewish. I also resolved to fight anyone who insulted my Jewishness, though I very quickly gave up on that one.

So where did "Barnett" come from? Well, my paternal great-grandfather, Harris Barnett, received this name either when he entered the country from Russia, or when he joined the US Army in 1876. Family lore had it that he was in the US Cavalry as part of the relief party to the aid of Custer at the Little Big Horn. But his Army enlistment records in the geneological center in Salt Lake City tell a somewhat different story. They give his age as 22, his birthplace Russia, his occupation as peddler, and his enlistment location as Chicago. He does not appear to have been in the cavalry, though army units were sometimes attached to cavalry units. He enlisted a week after Little Big Horn, and was honorably discharged 5 years later in Montana. So apparently he enlisted in the Army upon news of Custer's defeat and fought in the Indian Wars, which is the source of the distorted family account.

European immigrants were commonly given new easier-to-pronounce Americanized names upon entry into the country. Of my 4 grandparent's names, only one is original. "Hecht" became "Abrahams" (my great-grandfather's middle name), "Turkeltaub" ("turtledove") became "Tobe." These ancestors were from Eastern Europe and arrived much later than Harris Barnett. My maternal grandfather, Charles Abrahams, was born in England (after his father immigrated there from Eastern Europe--so the name "Abrahams" was exchanged for "Hecht" there rather than in Canada). He was raised in Montreal, dropped out of school after the 8th grade and, after working as a migrant worker in Canada, jumped the border illegally in the 1920s to work in the auto-related factories in Detroit where he met my grandmother and where my mom was born. He also dabbled as a stand-up comedian named "Charlie Chess" in vaudeville on the Michigan circuit. He remained in the country illegally for many years before becoming a resident alien (which confused me as a small child when I watched Superman who was described as an "alien" from another planet "who came to earth with powers and abilities far beyond those of mortal men.") I recall his becoming an American citizen when I was a bit older, around 1962. Only my paternal ancestors who immigrated from Germany retained their original name of "Greenwald."

And me? Like my father, I have always considered myself American. Not Russian, German, Polish, or Lithuanian--American. Although I am now a nonobservant nonbeliever, for some reason I still consider myself Jewish. And for me, America has always been the "Promised Land."

UPDATE: More on Immigrant Name Changes: A reader writes to note several websites that contest as a "myth" the story that names were changed at Ellis Island. (See here, here, and here.) While these sound plausible, I have no idea whether my family entered the country at Ellis Island, or elsewhere. As I said, Hecht was changed to Abrahams most likely in England before my grandfather's parents emmigrated to Canada shortly after his birth in 1902. However, as the most detailed of these sites notes:

Once settled into their new homes, however, anything could happen. Millions of immigrants had their names changed voluntarily or by clerks or by schoolteachers who couldn't pronounce or spell children's names. Some immigrants changed their names in order to obtain employment. Many immigrants found it easier to assimilate into American culture if they had American-sounding names, so they gladly went along with whatever their neighbors or schoolteachers called them.

I was always told by my parents (who did not know from first-hand experience) that the name changes were made to assist the immigrants in assimilation, sometimes because these names were hard to pronounce, not that the immigration officials themselves could not pronounce them. Still, I found these revisionist accounts quite interesting.

FURTHER UPDATE: This blog comment on Empty Days linking to this post (at the bold type) is self explanatory: "As to all this offended-jewishness-sos-pc-police talk, I have to wonder why the Volokh guys feel the need to explicate at length how they're all pure-bred jewish on their blog. Sorta cliquish, I figure. Oy-vey, a conspiracy! :)"

 
[David Bernstein, 4/1/2004 08:08:23 AM]
Crypto-Jews in Spain and Portugal: Hard to believe, but more than five hundred years after the forced conversion/expulsion of Jews from Spain and Portugal, there are still individuals in those countries that retain vague ties to their Jewish pasts (one entire community in the town of Belmonte, Portugal managed to maintain a secret quasi-Jewish life into the 1970s, when the community finally felt safe in "coming out.") Via forwarded e-mail, I received the following report about a recent meeting of such individuals:

More than fifty descendants of Spanish and Portuguese crypto-Jews attended an intensive three-day seminar held in Madrid this past weekend by the Jerusalem-based Amishav organization, which reaches out and assists "lost Jews" seeking to return to the Jewish people.

The participants, who hailed from over a dozen communities across the Iberian peninsula, were Bnei Anousim [descendants of the forcibly converted], whose ancestors were compelled to convert to Catholicism during the Spanish Inquisition (historians have often referred to them by the disparaging term "Marranos").

"The turnout was great it exceeded our expectations," said Amishav Director Michael Freund. "We studied Jewish texts together, learned about the travails of their ancestors, and examined issues of identity and return currently faced by the Bnai Anousim."

Among those addressing the group were Rabbi Moshe Ben-Dahan, the Chief Rabbi of Madrid, Mr. Jacobo Garcon, President of the Federation of Jewish Communities in Spain, and Mr. Jackie Haddad, Spokesman for the Israeli Embassy in Madrid.

The seminar was entitled "The Meaning of Liberty: Individual and Collective Freedom in the Life of the Bnai Anousim". Sessions were held at Madrid's main synagogue, and included traditional Sabbath services as well as festive meals.

"There is a real awakening taking place among the Bnei Anousim, who long to reconnect with the Jewish people and their heritage," Freund said. "It was quite moving to look around the room and see these people, who have clung to their Jewish roots despite centuries of persecution, singing Sabbath hymns and discussing their desire to return to Judaism. We simply have to do more to help them."

"I waited 500 years for this seminar," said one participant from northern Portugal. "And now at last I feel that I have taken a first step on my way back home, to rejoin my people - the Jewish people."

So-called "crypto-Jews" are even more common in Latin America and the American Southwest, because secret Jews from Spain and fled there to evade the Inquisition, which arrived there late and had trouble tracking people in remote frontier wilderness.

Wednesday, March 31, 2004

 
[Jacob Levy, 3/31/2004 11:39:20 PM]
Schmitt redux: More on that odd Alan Wolfe article I lmentioned a couple of days ago, the one that documents the fascination of the intellectual left with Carl Schmitt and then proceeds to say that contemporary American conservatives are Schmittians-in-practice, the evidence for which is that Ann Coulter is vicious.

1) The link I gave was subscription-only, but the article's been posted on the free portion of the Chronicle's site.

2) Russell Arben Fox offers this skeptical analysis. The Jens 'n' Frens bloggers have been discussing the article as well; the most substantial posts are here and here.

 
[Tyler Cowen, 3/31/2004 10:25:23 PM]
You can't take it with you: The following article might stimulate your thoughts in several different directions. It asks whether you should give away or invest your money. How much you should leave for your heirs. Whether religion is needed to stimulate more charity. And whether you should target the poorest people with your aid or seek to build up institutions instead. I'll offer an excerpt without further specific comment:

"Tom White...will get his wish. At 84, the construction millionaire has given away his fortune. If he has his way, he'll be down to his last quarter when he draws his last breath. Since [WWII]...he estimates he has given away $75 million, pretty much all of his assets. He has supported more than 100 causes over the years, but his biggest gift by far has gone to Partners in Health, the program made famous last year with the publication of Tracy Kidder's book "Mountains Beyond Mountains." The book details the work done in Haiti and other Third World countries by Dr. Paul Farmer, a Harvard professor and infectious-disease specialist whose work on AIDS and tuberculosis for the world's poorest has been hailed as groundbreaking. White put up the initial money for the program and has steadily funneled tens of millions of dollars
into it.

And why Haiti?

"Once White got a glimpse of Haiti, that was it; he decided there could be no better use for his money. "I was angry," he says. "You see the kids with red hair and distended bellies," signs of severe malnutrition. During one trip to Partners in Health's clinic in Cange, White told Farmer and his colleagues to outfit the village's shanties with cement floors and tin roofs -- and send him the bill. More than 100 huts were fixed.

"The floors were dirt, and when it rained, people would sleep in the mud," he says. He is proud of the food program at Cange -- "the kids get two meals a day." Today, Partners in Health runs a full-service hospital, AIDS and tuberculosis treatment clinics, a women's health center, and several cottage industries in Haiti. It has also launched programs in Peru, Siberia, Guatemala, Mexico, and Boston."

But it doesn't stop there:

"A trip to McDonald's typically costs him a hundred bucks. He'll search out the janitors and hand over $20 bills. "The woman cleaning the toilet can't speak English, she has nothing, and no one gives her anything," he explains. He also supports Sojourner House, a homeless shelter in Roxbury; Odwin Learning Center in Dorchester, which helps adults get into college; and afterschool and summer programs for poor kids in Roxbury.

Ask him why, and White, who attends Mass daily, replies: "I'm motivated a lot by what Jesus wants me to do, or what I think he wants me to do. And I think he wants me to help make the world a better place.""

Here is the full story. Thanks to Selena Maranjian for the pointer.

 
[Eugene Volokh, 3/31/2004 10:18:16 PM]
Search engine query that somehow got someone to our site:

jewish woman fetish what to call it?

I have no idea.

 
[David Bernstein, 3/31/2004 06:19:31 PM]
The new (2005) U.S. News rankings of law schools are being posted and discussed all over the web. Biggest surprise: Boalt drops to thirteen. George Mason continues its climb, to 38. I'm sure Brian Leiter will have some choice words to say about the rankings, as usual. I'm not a huge fan of U.S. News's methodology. As an example of why, GMU typically gets approximately the same "academic reputation rank" as schools whose entire faculties are outproduced in any given year by one or two of my colleagues, and GMU's actual peer reputation is much, much higher than U.S. News's methodology determines.

However, the reaction of the Association of American Law Schools to the rankings, which has been to simply condemn them, is unproductive. Prospective law students are going to invest a lot of time and money in law school, and they are looking for as much information as they can get. Rankings, including even U.S. News's rankings, provide useful information. If nothing else, the rankings themselves influence the decisions not only of students, but to a lesser extent of junior faculty choosing among competing offers, law review editors selecting among articles, and employers, and thus become a self-fulfilling prophecy that can't simply be pooh-poohed.

The real problem is not rankings, but that U.S. News has had a virtual monopoly on the rankings, though Leiter has provided more useful (at least for those concerned with the academic quality of the faculty and students at various schools), though less used guidance for students for several years now. One hears of such things happening, but it's absurd, for example, when a student turns Chicago for NYU because the former is "ranked" sixth and the latter fifth. Both are excellent schools, with very different characteristics, located in very different cities. Which one a sudent decides to attend is a personal choice that should be influenced not a whit by a marginal difference in rankings. If there were competing ranking systems, students would recognize that there is a certain arbitrariness in any ranking, and be less hung up on whether a school has moved up or down slightly in any given year. Let a thousand rankings bloom! Newsweek, Wall Street Journal, American Lawyer, rise out of your collective stupors and do your own law school rankings!

UPDATE: My own advice to anyone [edit: any prospective law student that is, the rankings below are based on student preferences, not faculty quality or other "academic" measures] trying to determine a school's overall "ranking" is to look at the quality of students it attracts, as determined by LSAT scores (a much more objective measure than GPA). A huge amount of information is encapsulated in the actual revealed preferences of students who decide to attend or not to attend a law school, because most of these students will have done some research before choosing a school. Such information includes desireability of geographic location (clearly a big factor if one compares, e.g., U.S. News rankings to LSAT rankings), local reputation, job placement, quality of life, tuition costs, bar passage, faculty quality and commitment to teaching, student satisfaction, national reputation, and, of course, U.S. News ranking. Ranking by LSAT at the 75th percentile for 2003 gives the following top 45: (1) Yale (2) Harvard (2) Columbia (4) NYU (5) Chicago (6) Stanford (7) Duke (7) Georgetown (7) Northwestern (10) Michigan (10) Boalt (10) Penn (10) Virginia (14) UCLA (15) BYU (15) Fordham (!!!!) (15) USC (15) Cornell (15) Washington & Lee (15) BU (21) GW (21) BC (21) Colorado (21) Emory (21) Notre Dame (21) Texas (21) Vanderbilt (21) U. Washington (21) Wash U. (21) Minnesota (21) William & Mary (32) George Mason (32) Georgia (32) Georgia State (32) Hastings (37) Davis (37) Illinois (37) Lewis and Clark (37) Ohio State (37) North Carolina (37) Rutgers-Camden (37) Wake Forest (37) Cardozo. Statistics found at "The Ranking Game." Note that a more accurate accounting of LSATs scores would also look at the 25th percentile. A small, wealthy school like Washington and Lee, or a school with a niche market like BYU, will find it relatively easy to attract an excellent top quartile, but more difficult to fill the bottom half of the class. Note also that midwestern state schools tend to have weaker LSATs than the schools' reputations would allow--Iowa does not even make the top 45. These schools have excellent reputations, faculties, resources, and connections, but top students from the Coasts generally won't apply to or attend them so, for the geographically flexible, they are great places to apply (despite possible in-state quotas).

FURTHER UPDATE: Southern Appeal has published his own idiosyncratic ratings.

ALSO, via email, Brian Leiter objects to using LSAT scores as a "student desireability ranking":

Such information is not given very clearly, however, by median or even 25th and 75th percentile LSAT scores, and for a reason you allude to, in effect, in your comments on Washington & Lee: differing class sizes. Needless to say, we are vividly aware of this issue at a school with roughly 500 students in each entering class. It turns out, for example, that we attract more students each year with LSATs over 169 than Duke, even though Penn's 75th percentile LSAT is 169 and ours is 166. The difference, of course, is that Duke is less than half the size of Texas.

On the other hand, Texas has a relatively captive in-state market as an inexpensive state law school that is by far the best law school in a populous state, so one would expect the very top of its class to be extremely strong. Each school has its own "story" (how much better GMU would do if we didn't have to compete with Georgetown and GW in the DC area, and William and Mary and U. Va. for in-state Virginia students!) so any single ranking has to be taken with a large grain of salt.
Leiter has more comments on U.S. News here.

UPDATE: More on rankings by me here and here.

 
[Eugene Volokh, 3/31/2004 01:28:17 PM]
Procedure in death penalty cases involving foreign nationals: Hofstra lawprof Julian Ku passes along the following:

I thought you (and maybe your blog readers) would be interested to know that the International Court of Justice today issued a Final Judgment in Avena (Mexico v. United States) finding that the United States breached its obligations to Mexico under the Vienna Convention for Consular Relations. In particular, it appears to find that specific provisions of United States law, the "procedural default" doctrine as applied to foreign nationals arrested and convicted of capital crimes, violates the U.S.'s treaty obligations and that U.S. "review and reconsideration" of foreign nationals' capital convictions must take place in judicial rather than executive clemency hearings. This judgment is likely to force the Supreme Court, the President and state governors, to confront a difficult conflict between international treaty obligations and domestic federal and state law.

In a previous case, the Supreme Court refused to use the Vienna Convention to suspend a state execution because, among other things, the Anti-terrorism and Effective Death Penalty Act (AEDPA) (a federal statute) prevented defendants from raising treaty violations in their habeas proceedings. The ICJ, however, has now held that application of this procedural default rule violates the Vienna Convention.

Under domestic U.S. law, a later in time federal statute like the AEDPA is given effect by the Supreme Court unless and until Congress revises it. But some members of the Supreme Court, especially Justice Breyer, have suggested in related decisions that the ICJ interpretation of the treaty obligation should be given effect instead of the federal statute because the ICJ has the power to issue "authoritative interpretations" of U.S. treaty obligations.

This is a troublesome approach because Justice Breyer is suggesting that the ICJ's interpretation of U.S. treaty obligations is authoritative, even in the face of prior Supreme Court interpretations to the contrary. In other words, he is giving the ICJ the final word on the interpretation of U.S. treaty obligations, even with respect to how those obligations affect other domestic laws, such as the AEDPA statute. I think this is a dangerous approach that shifts too much interpretive authority to the ICJ. The judgment as to whether a treaty should modify domestic U.S. law, or be interpreted to avoid domestic U.S. law, should be held by the U.S. courts alone.

If the Supreme Court does not follow Justice Breyer's approach, the ICJ's opinion will still raise separation of powers and federalism problems. In theory, President Bush is under an international legal obligation to order the governors of the various states where Mexican nationals face execution to suspend those executions and hold new trials. But aside from being politically unattractive, such an act would be an remarkable assertion of unilateral federal power into traditional matters of state control.

It seems to me that there are two ways out of these difficulties. First, as they have done in the past, the state governors and courts should consider suspending these pending executions (Oklahoma has scheduled one on May 18) on their own authority out of deference to the ICJ opinion and maybe if President Bush (through the State Department) requests that they do so. Second, Congress could amend the federal statute in question to permit foreign nationals to raise such treaty
violations during habeas proceedings.

Of these two possibilities, the former is more likely (although far from certain). But all of these issues will likely be dealt with in the coming weeks because Oklahoma has set a May 18 execution date for one of the Mexican nationals covered by this ICJ judgment. My very able former colleagues at Debevoise & Plimpton in New York are probably preparing briefs and motions to file in the next few days.

I'm no expert on this subject, but Prof. Ku is, so I thought I'd pass along his thoughts.

 
[Jacob Levy, 3/31/2004 12:39:24 PM]
Still more stuff that will prevent this blog from passing your web-filter: As if all Eugene's child-pornography posts weren't enough.

Both of the following via Radley Balko.

Someone has finally slipped down a slope that I've been mentioning (awkwardly) for a few years. A Georgia bill to ban female genital mutilation (already a federal crime, by the way, and I'd argue that the cases we really want to prevent could already be prosecuted as child abuse) has been amended to ban female (only) genital piercing.

The bill would make such mutilation punishable by two to 20 years in prison.... Amendment sponsor Rep. Bill Heath, R-Bremen, was slack-jawed when told after the vote that some adults seek the piercings.

"What? I've never seen such a thing," Heath said. "I, uh, I wouldn't approve of anyone doing it. I don't think that's an appropriate thing to be doing."

Between "slack-jawed," the obvious comic potential of "I've never seen such a thing," and the odd fact that he sponsored an amendment specifically about piercings without understanding that piercings are a consenting-adult kind of thing and not a screaming-Somali-child kind of thing this would almost appear to be a joke. I certainly think the AP reporter viewed it as such. But it's not.

Just so everyone's clear: the most common forms of female genital cutting are not morally, or physically, analogous to genital piercing. But, as I've discussed before, there's a form of cutting imprecisely referred to as "sunna circumcision" (though sometimes other things are called that, too) that involves making a single small incision on the clitoral hood. In both the U.S. and Italy, at least, there has been talk about doctors perfoming this procedure, in the hope that it would forestall the horrific infibulations and excisions that many of the girls in question will otherwise get; in both cases opponents have said that any form of female genital cutting should be off-limits. It seems to me that these incisions have to be on the same legal footing as piercings, and really ought to be on the same legal footing as male circumcision as well. In any event, it seems to me that any statute that forbids the incisions either has to forbid piercings as well (at least in the same age category), or is an illegitimate singling out of a practice just because of its cultural and religious meaning to those who practice it. The piercing amendment makes that fact apparent, but sometime someone was going to get prosecuted under one of these statutes for performing piercings.

As I read the federal statute, by the way, it properly prohibits infibulations and excisions but not incisions. But Patricia Schroeder, the author of the statute, has said otherwise.

Radley's other story: A Virginia woman is being prosecuted for the felony of "crimes against nature" for having received oral sex.

On Monday - under an agreement with prosecutors - the man pleaded guilty to the lesser charge of indecent exposure. The woman was offered the same plea, said Newport News Assistant Commonwealth's Attorney Jill Schmidtke. If convicted of the felony charge, the woman could face up to five years in jail.

But her attorney, David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can't regulate the sexual behavior of consenting adults in private.

As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.

Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee's motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial...

Schmidtke also said that the constitutionality of the statute "is a matter for the legislature."

Judge Sugg, of course, doesn't have to rule de novo on the constitutionality of the statute; that's already been done for him by the Supreme Court. He appears not to have gotten the memo. I'd like to have seen the complete Schmidtke quotation to know excatly what it is he said was a matter for the legislature. As the passage stands, he seems to lacka working familiarity with the whole concept of judicial review.

 
[Randy Barnett, 3/31/2004 12:00:45 PM]
Crime and Federalism: I became a state court prosecutor for the Cook County State's Attorney's Office in Chicago after graduation from law school, rather than a federal prosecutor, because I cared about the most serious of real crimes with real victims: murder, rape, home invasions, armed robberies, etc. (While I am extremely proud of my service there and enjoyed it immeasurably, because of the war on drugs--which I consider to be highly unjust--I could not today in good conscience be a prosecutor of any kind, but instead would be a public defender.)

For a long time, however, there has developed the sentiment that we are not serious about an issue unless it has been made into a federal crime. Not only is this a bad idea from a law enforcement standpoint, this trend has serious constitutional difficulties. Now comes a new blog on Crime & Federalism to examine this development. Here is how it describes its scope:

The text of the Constitution limits Congress to its enumerated powers. "All legislative powers herein granted shall be vested in a Congress of the United States [ ]." Article I, §1. Contrast this language with Article II, §1 which says, "The executive Power shall be vested in a President of the United States of America." And Article III, §1, which states, "The judicial Power of the United States, shall be vested in one Supreme Court [ ]." Notice that only those legislative powers granted belong to Congress. This constitutional language was not accidental.

The Federalist Papers address the principle of enumerated powers. "[I]t is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects[ ]." The Federalist No. 41. The Federalist No. 45 famously states, "The powers delegated by the proposed Constitution to the Federal Government are few and defined."

We can count on one hand Congress' textual basis to define or punish crimes. Thus, "[t]he Congress shall have Power to declare the Punishment of Treason [ ]," Art. III, §3, the power to "define and punish Piracies and Felonies committed on the high seas and Offenses against the Law of Nations," Art. I, §8 Cl. 10, and "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States." Art. I, §8 Cl. 6. Today, however, the number of criminal statutes is almost inestimable.

According to a report of the American Bar Association, there are over 3,300 federal crimes. Federalization of Federal Criminal Law, Appendix C. These laws are interspersed in 50 titles of the United States Code. Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. Law. Rev. 46 (1998). Also, the violation of federal regulations is often made criminal: the ABA estimates that the violation of at least 10,000 regulations is a federal crime. Federalization of Federal Criminal Law at 10.

We used to be able to count on one hand when Congress could define or punish crimes. Now no one can know the extent of potential criminal liability under federal law. This blog will explore what happened.

Welcome to the blogosphere!

 
[Eugene Volokh, 3/31/2004 10:54:13 AM]
Child porn and pictures of naked kids: Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren't lewdly exhibited -- which probably refers to how they're likely to be seen by the typical observer, and not to the intentions of the minor -- presumably wouldn't be child pornography. (Conversely, a picture of a child who isn't nude, but that is focused on the child's genitals, may well be child pornography, see U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994).)

     At the same time, what's lewd exhibition and what's not is in the eye of the beholder (cf. Tom Lehrer). Knox, for instance, applies a six-factor test:

1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Some pictures would clearly qualify, others would pretty clearly not, but quite a few will end up being in a very dangerous gray area. I suspect that in practice nudity will indeed be the most important factor for many prosecutors, judges, and jurors (though, I stress again, neither a necessary nor a sufficient one). So when in doubt, you might want to cut down on the nude pictures, especially once you're getting past the clearly socially well-accepted (e.g., the naked infant in the tub).

 
[Eugene Volokh, 3/31/2004 10:26:09 AM]
BedRoc: Marty Lederman (SCOTUSBlog) tries hard to make this Supreme Court decision interesting -- in my book, he succeeds, but I find all sorts of odd things interesting.

 
[Eugene Volokh, 3/31/2004 10:17:45 AM]
Sex and pictures of sex: A friend of mine sent me a message with the title "Child porn," and the body:

I've never sent an e-mail with such an explicit title before...

In most (all?) states, it's legal for a 16-year-old girl to have sex with her 16-year-old boyfriend. Thus, it's perfectly legal for them to see each other naked. But if he took a picture of her naked, would that be considered child pornography?

     Well, yes, that's right (except that 16-year-old/16-year-old sex isn't legal in all states -- check this this seemingly reliable, though questionably motivated, site). But I'm not sure that this is such an odd result. Allowing oneself to be photographed in a sexual situation poses, as many women have found to their chagrin, special risks of rather emotionally traumatizing humiliation. If I had a 16-year-old daughter, I wouldn't be wild about her having sex; but if she were doing so (and I realize that I'd have limited ability to stop her), I'd certainly advise her not to let her boyfriend take photos of them having sex. I'd advise my 24-year-old daughter of the same thing, but with the 16-year-old, I'd be more worried, because I think she'd be less likely to properly appreciate the dangers. And it makes sense that the law would help protect 16-year-olds against those dangers.

     Of course, sex poses much greater dangers, of death, unwanted pregnancy, and emotional trauma, not just of humiliation. If 16-year-olds are mature enough to have sex, why aren't they mature enough to agree to be photographed having sex?

     Well, I think it's a mistake to see the age of consent for such matters as purely a function of maturity. Rather, it's a function of both (1) the person's likely maturity, (2) the potential harm caused by the behavior (that's why the age of consent for drinking is higher than that for smoking), (3) the burden on the person caused by the prohibition (that's one reason why the driving age is lower than the drinking age), and (4) the likelihood that the law will be routinely flouted.

     Items 3 and 4 are, I think, why many states have an age of consent lower than 18. If sex was like smoking -- something potentially dangerous for yourself and likely for others, but potentially mildly pleasant and the sort of thing that people might want to start doing, though they wouldn't feel that strongly about it -- then we might well allow only adults to do it. If you can't buy cigarettes until 18, it's not like that's a huge burden. But restricting people's sexual relationships is likely to be felt as a much greater burden by most people than just restricting their ability to smoke, and it's a burden that people are especially likely to routinely resist. To observe this, ask yourself: What would be the likely social reaction, and the proper social reaction, to proposals to raise the age of consent for sex to 21, which is what it is for buying alcohol? Well, for the same reason, some states may resist raising the age of consent for sex even to 18.

     Allowing oneself to be photographed having sex falls much more into the category of smoking or chewing tobacco, I think, rather than having sex. It's not that great an interference with people's choices; and there aren't as many hormones and social pressures that will lead the ban to be routinely flouted. It's not irrational, then, to try to stop immature people from making such a decision, even when the law decides not to block such people's decision to have sex.

 
[Eugene Volokh, 3/31/2004 09:38:58 AM]
Child prosecuted for child pornography -- of herself: Michael Froomkin reports and comments, quoting this story:

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms. . . .

She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography. . . .

     The girl's behavior is not good, for a variety of reasons. The knowledge that there are sexually explicit pictures of her out there may end up hurting her emotionally in the future, which is one reason that child porn is prohibited (though I suspect it would hurt her less than if someone else had taken the pictures -- sure, when she's 20 she might feel very differently about this than when she's 15, but I doubt that she'll be that traumatized by the knowledged that there are those sexual pictures of her out there). Also, her actions might end up getting otherwise innocent people in trouble, if she sent the pictures to people who weren't soliciting them. (If they did solicit them, it might still get them in trouble, but then they wouldn't be innocent people.) Possessing child pornography isn't quite a strict liability crime; if you accidentally get such a picture and promptly delete it, you shouldn't be legally liable. But given that deleting it will probably still leave traces of it on your computer, you could certainly end up appearing quite guilty.

     Nonetheless, it's not clear to me that prosecuting her -- especially for those crimes -- is the right solution to this, just as prosecuting sexually promiscuous 15-year-olds who have sex with adults for "aiding and abetting statutory rape" doesn't seem quite the right answer, either. If this is one of those scare-the-kid-a-bit prosecutions, that might be fine. But if the prosecutors are serious about throwing the book at her, and locking her up for years (the usual situation with people convicted of the crimes of which they're accusing her), then it hardly seems to be much of a service to her -- who is after all the supposed victim as well as the perpetrator -- or to the fight against child porn more broadly. Nor do I think that the potential harm to the innocent recipients, though potentially a serious consideration, would be quite enough justification for a full-bore prosecution (again, consider the analogy to the statutory rape scenario).

     In any case, though, it's an interesting and complex case, perhaps more complex than it at first appears. If anyone has more factual details that might shed light on the prosecutors' decision, I'd like to hear about them.

 
[Jacob Levy, 3/31/2004 08:24:49 AM]
Heh. Y'know, this is made even better by the fact that it's Rhode Island, traditionally home to corruption in state and municipal government that could have kept a super-hero busy for years, and home to Buddy Cianci, who would have been vetoed as a crimelord-mayor villain by any comic book editor for being too unrealistic. (Registration required to follow the link.)

When the former [Rhode Island] attorney general, Sheldon Whitehouse, took office in 1999, he installed a bronze plaque outside 150 S. Main St. declaring: "I will not cease from mental fight. Nor shall my sword sleep in my hand. . . ."

The words are from one of Whitehouse's favorite poems -- written by the noted early 19th-century English poet William Blake.

[New Attorney General Patrick] Lynch, who took office last year, is now preparing to install a new plaque that declares: "With great power comes great responsibility." The words are from Stan Lee, the 20th-century American comic book pioneer who created Spider-Man.

Lynch said he was inspired by his 6-year-old son, Graham -- an avid Spider-Man fan who tugged on his father's pants and said those words moments before Lynch's inauguration in January 2003.
[...]
After deciding to go ahead with the Spider-Man plaque, Lynch hit the speakerphone, and as Healey and Lopes looked on, he called Marvel Comics. He said the discussion went something like this:

"Hi, I'm Patrick Lynch. I'm the attorney general of Rhode Island, and I have two questions probably best suited for your legal department."

"OK, hold a minute." Over the next 20 minutes, he said, he talked to six people before reaching a top lawyer in the company.

"Attorney General Lynch?"

"Yes."

"You really are the attorney general of Rhode Island?"

"Yes."

"Sir, I'm sorry but we have people call all day long saying they're the mayor of Metropolis or Gotham City." She said she'd done some checking while he was on hold to confirm his identity.

Lynch explained about his son and the challenges of his office and said he was hoping to get Marvel Comics' permission to use the quote. "To be candid," he said, "I'm going to do it anyway."

"Hold on, I'll check with Mr. Lee." When she came back on, she said, "Mr. Lee said that would be great."

Lynch's second question was who he should attribute the quote to -- Spider-Man? Stan Lee? Uncle Ben?

"Mr. Lee would like 'Stan Lee.' "

"Tell him 'Thank you' and, absolutely, that's what we'll put on the sign."

Just to do my alma mater proud, and to reinforce the (false!) image that people who read comics never read anything else, we've also got this:

Lynch said he's not going to get rid of Whitehouse's plaque. Rather, it will go on display in a boardroom that Lynch is dedicating to the history of the attorney general's office.

When asked to recite lines from Blake's poem, Lynch just shook his head. "I went to Brown [University]," he said. "I may have read Blake, but I can't recall if I did." Then he added, jokingly, "It might have been a morning after a frat party."

Providence is also home to the building (the Industrial National Bank) that served as the model for The Daily Planet building in the old George Reeves Superman television show, according to a disputed local legend.

Elsewhere in comics: Cerebus. Ah, yes, Cerebus. It's done now, in case you hadn't heard yet. See this Julian Sanchez post for a roundup, and for the following terrific Warren Ellis quote:

A testament to utter determination and vision. I mean, it pretty clearly drove the guy insane, but it's an astonishing achievement.

But of course, everyone who cares to know already knows that the comic is over, and that Dave Sim has been driven insane. I just wanted to point you to jaw-droppingly car-wreck-watching-fascinating funny-and-sad evidence of it. Belle Waring points to this Onion AV Club interview with Sim. I'll repeat here what I said in Belle's comment section: The surprisingly odd thing about the interview (as opposed to all of the odd things I've come to expect about Sim) was this:

He simultaneously wants to insist on the unparalleled artistic achievement he has just completed, the direct comparability of Cerebus to Metamorphosis or War and Peace or Crime and Punishment, and to keep talking about Cerebus as if it were merely an argument. Great literature usually has moral or ethical lessons to draw from it, and sometimes social and political analysis too. But it's never merely an argument. It seems to be Sim, not his critics, who can't separate the evaluation of his creative accomplishment from the agreement or disagreement with his ideas.

After you've read the interview, read (via Long Story, Short Pier) this account, by the reporter, of what it was like to arrange the interview in the first place, and this follow-up, which includes an extended bit not run in the actual interview-- Sim rewriting the interview (questions as well as answers) with himself in the role of Alex Trebek and the Onion in the role of a Jeopardy contestant.

As Belle says, "Did I mention he was crazy?

 
[Randy Barnett, 3/31/2004 06:00:52 AM]
Was the Right to Bear Arms Conditioned on the Militia?: A new and improved version of my review essay, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" has been accepted by the Texas Law Review. Although it won't appear in print until December (at the earliest), you can read a pre-edited version now by downloading the file from the SSRN. Here is the abstract:

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.

Download it here. (If you read an earlier version of this paper, this one is much expanded and improved, with additional analysis and evidence.)

 
[Randy Barnett, 3/31/2004 05:00:47 AM]
Why You Should Attend Cato University This Summer: For the past several years, I have lectured at the Cato University--a week-long feast of libertarian lectures and discussions in the most pleasing atmosphere of the Rancho Bernardo Inn near San Diego. This year the seminar conflicts with my annual lectures at the Europe and Liberty Seminars organized by the Institute for Economic Studies, which this summer will be held in Gummersbach, Germany (near Cologne) July 25-31.

Hopefully, I will be able to be there next year. But this year, as always, there is an excellent faculty and if you are inclined towards libertarian ideas, you should strongly consider attending. One of the greatest things about Cato University is that it is a mix of students, professionals, and retirees--all intellectually curious about liberty. There is no indoctrination, just stimulating lectures by faculty who do not always agree with each other. This is an opportunity that those who are not in academia rarely have--and students have access to perspectives that are not always available to them in their universities. High school students are also welcome.

You can apply for the seminar here. Scholarships are available for students (click here for application). Check it out.

Tuesday, March 30, 2004

 
[Tyler Cowen, 3/30/2004 10:51:51 PM]
Does sex sell?

"In an analysis of American box-office receipts for 250 movies released last year, the Christian Film & Television Commission (CFTVC) found that films that stressed "strong moral content" made an average $92,546,413 — six times the revenue of those that focused on "immoral, negative content."
Those movies brought in an average $14,626,234.
On a broader scope, the study also found that from 2000 to 2003, movies with "no nudity" brought in an average $137.8 million across the nation.
Films that depicted "full male and/or female nudity" in those same years brought in an average of $43 million, however."

OK, that is from a very conservative Christian group. And I can't find the data either. Still, if you think about it, neither Spiderman nor Frodo nor Harry Potter ever has sex on screen. So I doubt if the numbers are made up.

What are we to make of this? Michael Medved has argued for years that Hollywood has a left-wing, secular, 1960s bias, and could make more money with wholesomeness. Perhaps the moguls simply can't comprehend how such movies could be popular, just as they turned away Mel Gibson and made him finance Passion with his own money.

While some bias may be present, enough moviemakers are simply greedy. The study shows that many wholesome movies are in fact made and succeed financially. So if more wholesome movies would make more money, we would get them. They are not shut out of the market. So in financial terms I doubt if the bias can be a large one.

The more interesting economic question is why wholesome movies (read: children's movies, which I take to include young teenagers) hold a more concentrated market position. That is, they make a high average amount of money yet their success cannot be replicated easily by competitors. My best guess? Children want to see the same movie that their peers are seeing, which implies a concentration of returns. Yet their parents will only take them to the cinema so many times, which limits the number of movies in that market. Furthermore, these movies, which rely on focality, face especially high marketing costs.

The bottom line: Hollywood may indeed be a corrupt Babylon, but there is no easy way out of the box. There is only room for so many wholesome pictures in the market. Beyond this point, consumers demand sex and violence in their movies.

 
[Eugene Volokh, 3/30/2004 02:52:35 PM]
Shades of the sex education debate? From the Press-Enterprise:

Assemblyman Bob Dutton, R-Rancho Cucamonga, is pushing legislation meant to reduce accidental shootings by adding an optional firearms safety curriculum for the state's 6.1 million K-12 students. . . .

"Guns are just a fact of life," Dutton said. "I think it's really important for young people to understand how dangerous they are and what they should do if they come into contact with them." . . .

But some gun-control advocates question the wisdom of teaching students about firearm safety at a time when many schools have taken a zero-tolerance approach to guns.

"It would become a bit of a challenge if you mix the two. Our view is that guns have no place on a public school campus," said Ronald Stephens, executive director of the National School Safety Center near Los Angeles. . . .

Schools and school districts in California already have the right to teach gun safety if they choose. Dutton's bill is intended to create a uniform curriculum.

In Riverside County, Kraft's school district decided to use the NRA's Eddie Eagle gun-safety program in the late 1990s. However, the curriculum fell by the wayside amid growing demands on teachers' time from standardized tests on writing, reading and mathematics, said Kathy Wright, Alvord's assistant superintendent for student services.

Under Dutton's bill, the state Board of Education would develop the gun-safety curriculum. The lawmaker predicted that state officials would nix the idea of using real guns or replicas as part of the lessons -- something that is done in other states.

"It could be something like a field trip to a local police station," Dutton said. . . .

Fontana parent Sharon Allmond dismissed Dutton's bill as misguided.

"I think that's a parent's choice," Allmond said. "I don't think schools should be getting involved in teaching kids about gun safety." . . .

Thanks to Robert Butchko for the pointer.

 
[Eugene Volokh, 3/30/2004 02:41:05 PM]
Public housing residents and the right to keep and bear arms: By the way, my quick NEXIS search didn't find any newspaper articles, even in Michigan papers, discussing the constitutional case mentioned below. Seems like a shame to me. This is an important issue, which raises all sorts of basic social and legal questions: the rights of the poor, the power of the government, courts' obligations to take seriously even those constitutional rights they disagree with, and so on. Sounds at least like fodder for an op-ed, either in a Michigan paper or elsewhere, though I wish that the local papers also covered it as a news story.

 
[Eugene Volokh, 3/30/2004 01:10:05 PM]
"Romanian villagers decry police investigation into vampire slaying." No, I don't think it's a joke.

Toma Petre's relatives pulled his body from the grave, ripped out his heart, burned it to ashes, mixed it with water and drank it . . . .

Villagers here aren't up in arms about the undead -- they're pretty common -- but they are outraged that the police are involved in a simple vampire slaying. . . .

"What did we do?" pleaded Flora Marinescu, Petre's sister and the wife of the man accused of re-killing him. "If they're right, he was already dead. If we're right, we killed a vampire and saved three lives. . . . . Is that so wrong?"

UPDATE: Marty Lederman (SCOTUSBlog) links this story to a passage in today's Supreme Court decision in National Archives and Records Administration v. Favish:

Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851 (15th ed. 1985) (noting that "[t]he ritual burial of the dead" has been practiced "from the very dawn of human culture and . . . in most parts of the world"); 5 Encyclopedia of Religion 450 (1987) ("[F]uneral rites . . . are the conscious cultural forms of one of our most ancient, universal, and unconscious impulses"). They are a sign of the respect a society shows for the deceased and for the surviving family members. The power of Sophocles' story in Antigone maintains its hold to this day because of the universal acceptance of the heroine's right to insist on respect for the body of her brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255 (C. Eliot ed. 1909). The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is but a modern instance of the same understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.

But which way does that cut -- against those who would disturb the dead man's grave? Or in favor of treating it as "the rites and respect they seek to accord to the deceased person" (well, respect of a sort)?

FURTHER UPDATE: Reader Eric Stone writes:

I think the Supreme Court is saying that it's acceptable for family members to slay vampires, if they use a personal stake.

 
[Eugene Volokh, 3/30/2004 12:39:51 PM]
Nigeria meets Three Kings: The latest scam spam I've gotten, and the first that has an Iraq war connection:

FROM CAPT DESMOND ANDREWBAGHDAD
IRAQUE

"We are urgently seeking for your willingness to secure the below
consignment as shown in the attached photos!
"The consignment was captured here in Baghdad, abandoned in one of the
Saddam Hussein's Treasure House. However, the contents of the box are
huge amount of funds in the sealed box. We were able to count the content and discovered that it contains about $15,000,000 u s d (Fifteen million united state of America dollars). Due to the ruggedness of our mission we could not take this box along with us but we were able to contact a shipping and security company based in Europe that has helped us ship this consignment out of Iraq without letting them know the content "At moment, this consignment of money is outside Iraq for safekeeping
on our behalf but due to law and restriction order, we are unable to have these money for our private use. We hereby seek for your assistance to receive the
box in Europe.
"We are offering you 25 per cent of the entire money either in cash.
Therefore, we will appreciate your effort to get back to us via email confirming
your interest to assist us receive the consignment.REPLY TO= forady@excite.com "As soon as we receive your positive reply, we shall furnish you with further
details.
"Please, note, this issue must be handled with utmost confidentiality as to avoid
publicity!
"Yours truly.
Capt. DESMOMND .A (Team Leader

I guess it was just a matter of time.

 
[Eugene Volokh, 3/30/2004 09:49:16 AM]
Can public housing residents be denied the right to keep and bear arms: A week ago, in Lincoln Park Housing Comm'n v. Andrew, the Michigan Court of Appeals held that a public housing agency may bar its tenants from possessing guns. The public housing agency, though, is governed by the Michigan Constitution of 1963, article 1, section 6 of which says "Every person has a right to keep and bear arms for the defense of himself and the state."

     The court dealt with the right to keep and bear arms by reasoning that:

While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that 'the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power.' The state has a legitimate interest in limiting access to weapons.

It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.

     This analysis, I think, can't be right: Under this reasoning the government could equally entirely ban all guns, since the government has a compelling interest in maintaining a safe environment for everyone, and since the court seems willing to defer to the government's assertion that banning guns is a reasonable means of serving that interest. But surely a court can't simply negate a constitutionally secured right, not just in its peripheral or unusual applications, but in its very core, simply by reasoning that the right is dangerous. Presumably the right's presence in the state bill of rights represents a constitutional judgment that every person has a right to keep and bear arms for the defense of himself (or, in this case, herself) despite the arguments (familiar in 1963 as they are today) that banning guns is needed to "maintain[] a safe environment."

     The tougher question, it seems to me, is whether the government acting in its capacity as landlord has the power to completely prohibit the exercise of this constitutional right, as a condition of using government property. This is the issue that arises when the government tries to insist that tenants waive their Fourth Amendment rights, see the controversial decision in Pratt v. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994) (holding such a waiver requirement to be unconstitutional, despite its seeming popularity with most tenants), or perhaps that they not live with relatives (such as grandkids) other than their parents, spouses, and children (a condition that the Court struck down when imposed by the government as to private property). The Michigan court pointed, in another section of the opinion, to cases in which "evictions by public housing authorities have been upheld as not violative of the right of free association when such actions by the housing association was part of their efforts to control crime." But as I read these cases, they simply concluded that the right of association wasn't sufficiently burdened when tenants are evicted for not taking sufficient steps to prevent their guests and apartment-mates from committing crimes -- the cases didn't allow categorical prohibitions on intimate association, so I'm not sure they're an adequate precedent for upholding a categorical prohibition on the exercise of a constitutional right here.

     This, of course, is another aspect of the perennial "unconstitutional conditions" problem, which asks when the government may insist that people waive their constitutional rights as a condition of using government property or some government benefit -- a very important question in a country where governments at all levels take and then redistribute 25-30% of the GNP, and control a vast range of property that most people have to use. It's an unusual and particularly interesting aspect, though, especially since it cuts a bit across political lines: The right to bear arms is generally most supported by conservatives and libertarians, while restrictions on the government's power to attach conditions to its property are generally most supported by liberals.

     Incidentally, since forty-four of the 50 states have right to bear arms provisions in their state bills of rights, this issue will remain regardless of the outcome of the Second Amendment debates.

UPDATE: A couple of people have suggested that the government's power here is similar to the government's power to restrict guns in courthouses, airports, schools, and the like. I don't think that's quite right.

     First, state courts interpreting right to bear arms provisions have distinguished the ability to have a gun at home from the ability to have it outside the home. I think that's generally a mistake (except when the text of the constitutional provision provides for greater regulation of "wearing" or carrying guns, which generally does refer to carrying them outside the home). When the provision affirms our right to defend ourselves using guns, it should generally (perhaps with some exceptions, but generally) apply to defending ourselves wherever we are in danger, whether that's in the home or outside the home. But I do agree that the provision certainly does apply, at least and especially, to defending yourself in your own home. Stopping you from defending yourself in public places interferes with your right to bear arms -- but stopping you from defending yourself even at home interferes with it even more. And your apartment in a public housing complex is your home, where an airport or a courthouse is not (even for those who spend as much time in the office as Judge Kozinski's clerks do).

     Second, at least in courthouses and in airports, the government can credibly claim that the risk of criminal attack -- the main thing from which you have a right to defend yourself -- is considerably less, because the government does indeed police those places pretty well (not perfectly, but much better than most other places). One could plausibly argue that therefore the right is weaker in those places as well. Again, though, one surely can't make the same argument as to public housing.

     So even if the government has the power to restrict guns in public places (whether publicly owned or privately owned -- some state laws, for instance, ban the possession of guns in places where alcohol is served), and even if the government should have the power to restrict guns in at least some public places, people's apartments in government-run housing complexes seem to be a very different matter.

 
[Eugene Volokh, 3/30/2004 09:12:19 AM]
Precedents: Apropos the "Rice will testify, but only on condition that the commission agrees that it won't set a precedent" deal, Tom Grey writes (without expressing any opinion on the underlying merits of the executive privilege dispute):

As one of my colleagues [Bill Cohen] says in faculty meetings, whenever this gambit is tried: "This won't set a precedent -- and anyway, we've done it before."

 
[Jacob Levy, 3/30/2004 09:01:00 AM]
Spring is here, spring is here. I confess it seems odd to me to have the season opener played in Japan. But I'll take my opening day Yankess losses any way I can get them.

 
[Eugene Volokh, 3/30/2004 07:51:26 AM]
"The Brethren (and Sistren)": Lawprof Eric Muller (IsThatLegal?) writes:

Last week, two of the five justices on the Wyoming Supreme Court were brother and sister: Justice Marilyn Kite and her brother Judge Ken Stebner. (Stebner is a trial judge who was sitting on the Supreme Court for a few days by designation.)

Inquiring minds want to know: is this the first time that brother and sister have sat on the same appellate panel?

We do indeed. Please e-mail responses, if you have them, to isthatlegal-at-bellsouth-dot-net.

Monday, March 29, 2004

 
[Jacob Levy, 3/29/2004 02:49:02 PM]
Very sad news: The eminent legal philosopher Joel Feinberg, Regents Professor of Philosophy and Law Emeritus at the University of Arizona and author of some of the most powerful and complete articulations and defenses of legal anti-moralism and anti-paternalism, has died. Chris Maloney has circulated the following note:

Friends, I regret to inform you that Regents Professor of Philosophy and Law (Emeritus) Joel Feinberg died today, March 29, in Tucson following a long illness.

Professor Feinberg retired from the University of Arizona Philosophy Department in 1994 after 17 on the faculy. Prior to his appointment at Arizona, Professor Feinberg taught at Brown University, Princeton University, UCLA and Rockefeller University. He held the B.A., M.A. and Ph.D. from the University of Michigan.

Professor Feinberg was internationally distinguished for his research in moral, social and legal philosophy. His major four volume work, *The Moral Limits of Criminal Law,* was published between 1984 and 1988. Professor Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the country.

Professor Feinberg is survived by his wife, Betty, daughter, Melissa, and son, Ben. The family is planning a memorial to be held later this week on a date to be determined.

Professor Jules Coleman of Yale University is presently composing a proper professional obituary for Professor Feinberg.

You are welcomed to forward this message to others.

 
[Jacob Levy, 3/29/2004 02:19:23 PM]
Blogospheric consolidation continues: An already-excellent group-blog just got even better. John Holbo and Belle Waring are joining Crooked Timber, which should bring their blogging to the wider audience it deserves.

By my count this brings Crooked Timber's roster to 15, one more than the Conspiracy's.

UPDATE: Kieran Healey takes the "roster" thought one step further...

 
[Eugene Volokh, 3/29/2004 02:16:38 PM]
High utility bill leads to search of house? Reader Michelle Dulak pointed me to this story:

A family whose high electric bill sent police on a futile hunt for indoor marijuana cultivation at their Carlsbad home is asking for an apology in writing.

The raid at the Ivy Street home of Beryl and Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people.

Officers, however, found nothing to link the family to illegal drug activity during the search at the Dagys' house, and they apologized to the Dagys at the time, Carlsbad police said Wednesday. . . .

     This does sound troubling, even, I suspect, to those who see marijuana growing as a very serious crime. Note, though, that -- as is often the case in such stories -- there was at least some other evidence supporting the search warrant, though the story saves it for the second to last paragraph:

Dagy said the only reasons the agents gave her for the raid were the high electrical bills and the fact that a drug-sniffing dog had alerted at the home before the raid.

So we have abnormally high electrical bills ("1,161 kilowatts for January and 1,584 for February . . . the highest figure for the other four homes on the block was 467 for January and 462 for February"), plus the drug-sniffing dog seemingly confirming the likely presence of marijuana. Neither of these is by any means dispositive, and even together they aren't enough to prove guilt beyond a reasonable doubt. But of course the standard for getting a search warrant isn't proof beyond a reasonable doubt; it's probable cause, which is necessarily a much lower threshold.

     Apparently, the data that the police were using was indeed pretty reliable: "Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people." Probable cause is to be determined from the perspective of what the police knew beforehand, not based on the results of the search. Still, when you have this many data points, this tells us something about the ex ante probabilities, and it looks like the police methods are finding the right targets with 80% confidence. That's more than plenty for probable cause, it seems to me.

     I sympathize with the Dagys; but the "probable cause" standard means that