Saturday, April 10, 2004

 
[Eugene Volokh, 4/10/2004 10:00:29 AM]
Student writing gets noticed: Eric Soskin (Per Curiam) reports:

[T]he Las Vegas Review-Journal has cited a January student note on Guinn v. Legislature of Nevada as ammunition in its campaign to overturn the Nevada Supreme Court's ruling in the case. The editorial is complemented by a full-page article interviewing parties in the case, their attorneys, and even a senior Supreme Court justice for their opinions on the student note.

Well done -- and a reminder that a good student article on an important topic (and perhaps also one that's well-promoted, though I'm not sure exactly how the article came to the newspaper's notice) can get noticed.

Friday, April 09, 2004

 
[Eugene Volokh, 4/9/2004 03:52:16 PM]
A couple more items about obscenity prosecutions: A few correspondents suggested that prosecuting producers of obscenity will send the message that pornography is bad, and will therefore influence some people not to get it, even if it's easily available. I think such "normative effects" of the law are sometimes important in some contexts, but I just don't see it happening here. Would a potential porn consumer really be turned off from porn, either at a visceral level or at an intellectualized moral level, by knowing that some (or even many) porn producers are being prosecuted? I highly doubt it. I imagine there's no scientific evidence on this either way, but my sense of human nature is that people just don't think this way.

     It's conceivable that some people might become more attracted to it; porn is already seen as somewhat dirty, and I take it that to many it's part of the people -- making it extra dirty might just make it extra appealing. But I'm not confident of that; I just think that the natural appeal of the product, coupled with its easy availability, will make the message sent by the prosecutions virtually irrelevant. And it'll be quite an expensive message for the government to send.

     Another correspondent pointed to my argument that "the respectability of the channel is not, I think, high on many porn consumers' lists of desired characteristics," and replied that the confidentiality of the channel is pretty high on the list of characteristics. And so it is, which is why the availability of cable porn might have increased people's consumption of porn in some measure, back when the alternative was going to the store or a theater. But now, with the Internet, eliminating cable porn would have very little marginal effect on the confidential availability of pornography.

 
[Jacob Levy, 4/9/2004 03:35:21 PM]
Daily constitutional: I'm with Will. This question from Milbarge at Begging the Question is too easy.

Is there anything that an originalist interpretation of the constitution tells you is constitutional, but that you're against anyway, say as a matter of policy, or that you'd vote against as a legislator?

Even an originalist whose understanding of original understanding is pretty constrictive of state action-- such as our own Randy Barnett-- presumably has an easy time answering this question. I'd guess that Randy opposes, say, the existence of the federal postal service as a matter of policy, but doesn't deny its constituionality. There might be a constitutional argument to be had over the postal monopoly, but pretty clearly the Constitution-as-originally-understood authorized the creation of a postal service.

For most originalists, the question is easier still because they think most things are constitutional. They think it is constitutional to ban contraception and that it is also constitutional to repeal the ban on contraception. They surely oppose one of these as a matter of policy. Ditto for sodomy: constitutional to ban it, constitutional to repeal the ban. Ditto for many regulations of (genuinely) interstate commerce. Borkian originalism (or its more sophisticated Scalian cousin) maintains that the original understanding of the constitution means most possible state actions are constitutional. And since any given state action can go two ways (in the ban-or-repeal-the-ban cases) or many more ways (what shall our interstate commerce regulations be? How high shall our tariffs be? What treaties shall the President-with-the-advice-and-consent-of-the-Senate enter into?), inevitably the originalist faces lots of policy options that he or she thinks constitutionally permissible but imprudent, unwise, unjust, or "uncommonly silly."

The harder set of questions: what laws do you think are unconstitutional that you would nonetheless favor on grounds of policy and justice?

UPDATE: Milbarge responds (in an update; same link as above.) I think I see now. The question wa ssupposed to be at a different level of generality-- not: do originalists think that some particular laws are constitutional are nonetheless dumb laws? but rather: do originalists ever think that a better constitution, all things considered, would allow some things that our constitution-as-originally-understood forbids, or vice-versa?

Does it make it any clearer if I say I'm asking not about constitutional challenges to laws or policies, but first-order constitutional interpretation in the abstract?

For example (asking rhetorically), what is Justice Scalia's or Judge Bork's (or Prof. Levy's, or Will Baude's) originalist interpretation of the phrase "cruel and unusual punishments"? Or "probable cause"? Or "the right to bear arms"? Or Congress shall make no law"? And when they come to that conclusion, do they ever wish they were wrong? Does Judge Bork ever say that we'd be a lot better off with more nude dancing establishments, if only it weren't for those pesky framers and their understanding of "freedom of speech"? Does Justice Scalia send Christmas cards to the U.S. Sentencing Commission, saying it's a fine institution, and too bad it's not constitutional?

I think this makes perfectly good sense and in a way is a more fun question than either the one Will and I took Milbarge to be asking or the one we suggested in its place. I'm pretty sure the answer is "yes."

I strongly suspect that Scalia thinks he'd rather, in an ideal world, live under a constitution that forbade flag burning, permitted independent prosecutors, and allowed courts to deny accused child molesters the ability to confront their accusers in person. But he thinks we don't live under such a constitution. Bork I won't speak for. But for my own part, I think fast-track approval of trade treaties is unconstitutional under the constitution-as-written. (I'm ambivalent about whether I'm an originalist across the board, but I do think that plain textual statements about procedures need to be respected.) But I think that treating trade treaties as plain old Senate-amendable treaties would be catastrophic; I would vigorously support a constitutional amendment to legalize the fast-track mechanism. I think a better Constitution would permit pretty tight restrictions on jury trials in civil cases, but that ours does not.

Now Randy, unlike Scalia or Bork, has an understanding of originalism that does rest at a crucial justifactory stage on the justice of outcomes. A constitution whose best, truest understanding led to deeply unjust outcomes would not be "binding in conscience." That doesn't mean the injustice should be interpreted away; it means that the constitutional regime demands to be changed. He thinks that the U.S. Consitution-as-amended, rightly (originally) understood, is not such a document. But even his theory doesn't demand that a Constitution mandate just outcomes in all particular cases.

 
[David Bernstein, 4/9/2004 11:10:37 AM]
The Asbestos Scandal: Excellent article in the Mobile Register (via Overlawyered) about the scandalous behavior of attorneys and their physician accomplices who have been pursuing claims on behalf of tens of thousands of phony purported victims of asbestos-related diseases. The lawyers sends clients to the doctors, and the doctors conveniently find that every single one of them has been injured by exposure to asbestos, no matter how limited or fleeting. The other major accomplice in this racket has been American judges, who have by and large not enforced existing standards for expert testimony in the asbestos context, much less gone out of their way to crack down on well-known abuses.

 
[Jacob Levy, 4/9/2004 10:13:51 AM]
Easter Peeps: Slate's Explainer says that 700 million Peeps will be eaten this year.

That's all? Just two-and-a-half per man, woman, and child? Call it three for everyone old enough to be allowed to eat (semi-)solid food but not so old to have lost their teeth. Of those 230 million or so, 40 million are on low-carb diets, and another 5 million or so are diabetics. 185 million left, who will eat an average of a little less than 4 apiece.

Is there anyone who actually eats Peeps who eats only four of them?

 
[Jacob Levy, 4/9/2004 09:43:27 AM]
I know this is a minor point, but... It really aggravates me.

I read yesterday's New York Times article on New Zealand politics with special interest because of the brewing fight over Maori rights. (Concidentally, Australian Aboriginal politics are in turmoil, too-- the deeply flawed Aboriginal and Torres Straits Islander Commission is not long for the world.) Not a bad article. But at one point it says:

Over the last couple of decades, in an effort to address the past wrongs, New Zealand's courts and Parliament have extended rights and benefits to the Maori, who make up about 15 percent of the population. This week a Maori television network, supported by government money, began broadcasting, though only 10 percent of the Maori are fluent in their native tongue.

It would of course be awful if only a tenth of Maori New Zealanders were fluent in the language they've been raised to speak. But that's not the case. Only a tenth are fluent (and I doubt that the number is actually that high, if one really means fluent) in the Maori language, which is the native language of very few living Maori. It is, one could say, their ancestral language-- assuming that the racially-quite-mixed Maori population somehow ought to be thought of as inheriting a relationship to Maori rather than to English (and there actually is something to be said for that assumption, insofar as the racially mixed part of the population was traditionally understood to be Maori by Maori and Pakeha alike, and so lived culturally-Maori lives). But it's not their native language, and characterizing it as such stacks the discourse in favor of aggressive language revival policies (about which I'm moderately skeptical, as I've written elsewhere ). And it denies the reality that many Maori have always spoken English and lead fully acculturated lives in Anglo New Zealand.

For the record, my skepticism about the Maori language revival project does not make me at all sympathetic to the National Party's new stance of opposition to all Maori cultural rights. Land rights, seabed rights, the reserved Maori seats in Parliament, and the general sense that New Zealand is in some sense a binational federation created by the Treaty of Waitangi are all justifiable without recourse to myths about Maroi being the "native" language of all currently-living Maori. New Zealand has adopted some of the most successful policies of any settler state in the world toward its insigenous minority, and I think it would be a terrible shame to see those policies discarded.

 
[Jacob Levy, 4/9/2004 07:00:37 AM]
Mazel Tov: Our sometime co-Conspirator, Stuart Banner (Law, UCLA) has been named one of this year's Guggenheim Foundation Fellows. The new class of inductees also includes three political scientists/ theorists: my Chicago colleagues Carles Boix (Political Science) and Mark Lilla (Social Thought), and my former teacher Jeffrey Herbst of Princeton. One other noteworthy (and worthy) honoree is USC's Timur Kuran, author of Private Truths, Public Lies and a specialist in Islamic economics.

 
[Eugene Volokh, 4/9/2004 06:34:39 AM]
Obscenity and spam: One correspondent suggested that a porn crackdown is needed because of the prevalence of porn spam:

Prior to spam, porn was only available if you really wanted it. If you didn't want to watch it, turn the channel, don't buy the magazine, don't rent the video. But spam changed that. Now porn shows up in your house whether you want it or not. The only way to get rid of it is to get a spam filter and potentially eliminate valid email.

     I sympathize with the correspondent's concerns -- but I don't see how the solution matches them. The government isn't prosecuting porn-spammers, even though it may well be easier to convict them (if you can catch them), since there's a good argument that a defendant's sexually explicit marketing to unwilling viewers can be considered part of what makes the actions "patently offensive" under "contemporary community standards." It's prosecuting porn producers.

     Ah, one might say, but we have to prosecute the porn producers rather than the porn spammers, because we can't catch the spammers. My point exactly: You can't catch the spammers, because many of them are overseas. If you lock up all the U.S. producers, the same spammers will be pushing either the same product or a slightly different product the same way. So we get lots of prosecutorial time and effort invested, with virtually no effect on the amount of porn spam.

 
[Eugene Volokh, 4/9/2004 06:25:45 AM]
A bit more about the federal government and obscenity: The chief defense that I've seen of the federal government's obscenity crackdown (for instance, see Clayton Cramer's post, though several other correspondents made the same point) is that it may decrease the availability of porn through non-Internet commercial channels: cable, for instance, or hotel pay-per-view.

     But so what? If you think porn is bad for people, and for their neighbors, how will drying up these channels do any material good, when another channel -- the Internet -- is so broadly, easily, and inexpensively available? Cramer is right that prosecutions might "remove[ porn] from 'respectable' distribution channels." But the respectability of the channel is not, I think, high on many porn consumers' lists of desired characteristics. And any tiny decrease in consumption may well be offset by an increase, for instance as people who are used to seeing porn videos on cable will find they need to get good Internet connections instead, and, once they get them, will realize that they can get much more online than they ever could from the cable company. So I stick by my description of possible outcome #1: U.S. consumers will be using just as much porn as before.

     Still, my post wasn't just about that: Rather, I was asking what the government's likely next steps would be. One possibility is that the government prosecutes some U.S. pornographers, sees some apparent success as hotels and cable channels stop running porn, notices that people are still using lots of Internet foreign-distributed porn, and decides "OK, we've done all we really can. Sure, all our prosecutions aren't really changing people's consumption, but that's fine. We'll either keep going with the futile prosecutions, or close up shop."

     The other possibility, though, is that the government isn't going to be happy just with the limited effects that Cramer and the others describe. Remember that the planned prosecutions are of the producers, not of the cable companies and hotels, which after all are also distributing porn and thus potentially legally liable -- this makes me doubt that the government's ambitions are limited to blocking the hotel and cable distribution. Rather, people will say: "Look at this foreign cyberporn loophole -- we've got to close it." And what will they need to do to close it? Well, either my option #2 (mandated nationwide Internet filtering by service providers, with a blacklist of sites maintained in real-time by a federal agency) or option #3, locking up porn consumers.

     The bottom line remains the same: The options for the government are either futile traditional enforcement, or potentially effective but highly intrusive novel enforcement. You decide which one is more likely; but neither seems particularly good.

 
[Eugene Volokh, 4/9/2004 06:10:41 AM]
Religious hate crimes: The Daily Ablution has an interesting report on how the Times (London) is reporting religious hate crime statistics. The facts from the British government report:

Number of cases finalised by 31 March 2003: 18 . . . .

Actual or perceived religion of the victim
Muslim 10
Sikh 2
Hindu 2
Jewish 1
Jehovah's Witness 1
Christian 1
Not Stated 1

The religion of the defendant was not identifiable in all cases. However, in 6 cases, the victim and the defendant were of the same religion (Muslim).

As the number of cases concluded during the reporting period is small, it has not been possible to identify with any degree of accuracy emerging trends. The predominant offences appear to be public order assault and harassment . . . .

What do you think the headline and the opening paragraph of the Times story say? (To the Times' credit, the following paragraphs reveal the details, but many people often read just the headline, or just headline and the first paragraph or two.)

Thursday, April 08, 2004

 
[David Bernstein, 4/8/2004 09:52:18 PM]
Refusing to "Respect and Value" Homosexual Coworkers: A federal judge has awarded back pay and damages for emotional distress to a Christian employee who objected to his employer's policies requiring him to "respect and value" the differences of his gay colleagues. Specifically, Albert Buonanno objected to language in an AT&T Broadband employee handbook stating that "each person at AT&T Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us," including sexual orientation. The company fired Buonanno after he refused to sign a "certificate of understanding" acknowledging that he agreed to the policy.

Buonanno's lawsuit was based on AT&T Broadband's failure, under Title VII of the 1964 Civil Rights Act, to show that it could not "reasonably accommodate" his religious objections without "undue hardship." This opinion, from a district court in Colorado, which is in the Tenth Circuit, seems to conflict with the Ninth Circuit's recent ruling in Peterson v. Hewlett Packard Co., 358 F.3d 599 (9th Cir. 2004), holding that modifications to an employers' diversity policies are an "undue hardship" within the meaning of Title VII. I wrote about Peterson here.

However, while Peterson actually sought to express his disagreement with company policy at his workstation, thereby undermining company policy, Buonnano simply sought to be excused from signing an oath of allegiance to the policy. Buonnano could reasonably argue that it is one thing to expect an employee to act in ways consistent with a company's nondiscrimination or tolerance policy, and quite another to require an employee to swear fealty to the principles underlying the policy.

This latter issue makes me ambivalent about the outcome of Buonnano's case. On the one hand, I think that AT&T Broadband should be able to enforce a "progressive" antidiscrimination policy if it so desires, without special accommodations for religious employees. The same conservatives who are against requiring or even allowing private companies to engage in special treatment for minority employees seem to always want the government to require them to engage in special treatment for religious employees in the form of an expansive definition of "reasonable accommodations." We live in a pluralistic society, and if religious employees don't like one company's employment policies, there are many, many other places they can work.

On the other hand, the whole notion of requiring employees to swear loyalty oaths to antidiscrimination policies, to require not just nondiscriminatory actions but beliefs, seems to have originated with state action. Even if AT&T Broadband's specific policies weren't mandated by the government, the form they took are likely an outgrowth of years of lawsuits and EEOC actions that have attempted to require employers to only promote managers who "believe in" certain nondiscrimination policies. I've noted in a related context:

As a condition of settlement of antidiscrimination lawsuits, the EEOC and private litigants are increasingly demanding that defendant corporations agree to have managers strongly consider supervisors' vigilance in implementing antiharassment policies when evaluating those employees' performance. Even companies that have not been sued are adopting this policy to attempt to avoid future lawsuits. One common criterion used to judge an employee's zealousness in enforcing antiharassment policies is whether the employee has expressed his personal support for the policies. An employment law expert asserts that managers must "communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy." Yet antiharassment policies are often controversial within a company, especially when they stifle speech or prohibit dating among coworkers. Employment law expert Walter Olson writes that unless the trend toward requiring absolute fealty to internal antiharassment policies is reversed, "those who dissent from the official line, harbor doubts or qualms about it, or for any other reason prove unwilling to announce their enthusiasm for it, will sooner or later find themselves excluded from positions of responsibility in the American corporation."

Increasingly, then, in large corporations, it is not enough to simply treat one's coworkers fairly and in accordance with company policy. Rather, to satisfy legal-bureaucratic imperatives, one must declare one's personal allegiance to various controversial policies promoted by the company--gay rights, affirmative action, antifraternization policies--or risk one's livelihood. A worrisome trend, indeed.

UPDATE: A reader write: "Maybe it's just my interpretation, but I see a rather large difference between the AT&T Broadband policy that 'charges each person with the responsibility to fully recognize, respect and value the differences among us" and the legal requirement that managers "communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy.'"

One must be clear, as this reader may not have been, that measures taken by companies to prevent "harassment" include much more than one might think. Anti-harassment policies can include some rather controversial provisions, including forbidding intracompany dating, mandatory anti-harassment (or "diversity") training by individuals with a strong feminist or racialist or pro-gay agenda, bans on "dirty jokes," bans on certain political discussions at work (e.g., Clinton and Monica Lewinsky), bans on religious proselytizing in the workplace (including during lunch and other breaks) even by those whose religion teaches them they have an obligation to proselytize, and more. A manager can comply with all of these policies while personally disagreeing with them, or even finding some of them offensive to his or her deepest-held beliefs.

It's one think to ask a manager to comply with such policies, with a smile on his face. It's another to require him to assert that he personally believes in such policies, but companies think they need managers willing to do so to protect themselves from litigation. And you can see why. The following colloquy would look extremely bad before a jury: Q. And you were the manager in charge of enforcing IBM's sexual harassment policy for the past five years? A. Yes. Q. And did you personally support and believe in all aspects of that policy? [Objection] A. No. Q. Please tell the jury which aspects of the policy you did not support [Objection]. Some courts would sustain these objections, but some would not.

 
[Randy Barnett, 4/8/2004 12:43:55 PM]
2d Amendment Article Makes SSRN Top Ten: My article, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, has made the ALL TIME HITS SSRN Top Ten Downloads for Law School Research Papers - Public Law & Legal Theory series. You can see the entire list here and can download it here.

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.

Larry Solum (of Legal Theory Blog) has the number 8 all time most downloaded paper, The Layers Principle: Internet Architecture and the Law.

 
[David Bernstein, 4/8/2004 09:02:47 AM]
Height Disparities: Interesting New Yorker article, found via Alex at Marginal Revolution, discussing the fact that Europeans are growing taller, but Americans are not. The article claims that any population can grow to the same height as any other (height is not genetic, but based on nutrition), and concludes that Americans are not growing taller due to societal inequities that lead to bad nutrition and health care for the poor.

I am dubious on both points. Jews, or at least Askhenazic Jews, are short. And not just elderly Jews, but Jews of my generation. It's true in the United States, and, from what I saw when I was in Israel, it's true there, too. I don't have statistics on the subject, but I know from experience that at 5' 7" or so, I'm taller than 85% or more of Jewish women, and am not far from the median (I would estimate 5' 8-9") for Jewish men. When I dated a 5' 10" woman, she was often the tallest individual, male or female, in a synagogue or other Jewish venue. Yet American Jews, by all accounts, are the wealthiest ethnic group in the wealthiest country in the world. If there is no group genetic component to height, and all that's holding back Americans' height is societal inequality, shouldn't Jews be the dominant force in the NBA? Ironically, Professor Komlos, the star of the New Yorker article noted above, is a 5'6" Hungarian Jew who "blames" his short stature on deprivation during the Nazi period. Yet he is not especially short for a Jewish man. So height researchers, back to the drawing boards; you have found an interesting phenomenon, but you have not explained it.

UPDATE: I've gotten many emails suggesting that I must be misconstruing the relevant research, that of course there can be some significant differences in height among ethnic groups, even if nutrition can account for most of the differences we used to think were genetic. So let me quote from the New Yorker article (which may itself be misrepresenting the research, but it's all I have to go on): "Around the world, well-fed children differ in height by less than half an inch. In a few, rare cases, an entire people may share the same growth disorder. African Pygmies, for instance, produce too few growth hormones and the proteins that bind them to tissues, so they can’t break five feet even on the best of diets. By and large, though, any population can grow as tall as any other."

 
[Eugene Volokh, 4/8/2004 08:48:11 AM]
Obscenity crackdown -- what will the next step be? So here's what I wonder about the Justice Department's planned new obscenity crackdown. As we know, there's lots of porn of all varieties out there on the Internet. I don't know how much of it is produced in the U.S., but even if it's 80%, and every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack?

     It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make porn. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock -- it's not like the imprisoned copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world #1 porn-owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from open-and-shut, and likely far from cheap). And even if overall world production of porn somehow falls by 75%, which strikes me as nearly impossible, will that seriously affect the typical porn consumer's diet? Does it matter whether you have 100,000 porn titles (and live feeds) to choose from, or just 25,000? (Warning: Numbers taken out of thin air, but I'm comfortable to say that the number is huge.)

     So we have three possible outcomes:

     1. The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using exactly the same amount of porn as before. Only potential benefit: If you really think that the porn industry is very bad for its actors, you're at least sparing Americans that harm, and shifting it off-shore instead. Other than that: Investment of major prosecutorial resources yields a net benefit of zero.

     2. The government gets understandably outraged by the "foreign smut loophole." "Given all the millions that we've invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?" So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

     It's true: Going after cyberporn isn't really that tough -- if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run "Forbidden Off-Shore Site" list. Of course, there couldn't be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond (since even that would take up too much time, and would let the porn sites just move from location to location every several weeks).

     Sure, that sounds like a violation of First Amendment procedural rules, even given that obscenity law is substantively valid. Sure, that would make it easier for the government to put all sorts of other sites on the list. Sure, it's a substantially more intrusive step than any of the Internet regulations we've seen so far, and is substantially more intrusive in some ways than virtually any speech restriction in American history (I say in some ways, not in all ways, since it would have a limited substantive focus -- but the procedure would be unprecedently restrictive, and First Amendment law has always recognized the practical importance of procedure). But it's the only approach that has any hope of really reducing the accessibility of porn to American consumers.

     3. You can always go after the users -- set up "honey-pot" sites (seriously, I think that would be the technically correct name for them) that would look like legit offshore porn sites, draw people in to buy the stuff, figure out who they are (you'd have to ban any anonymizer Web sites that might be used to hide such transactions, cf. number 2 for the way to do that as to off-shore sites), and then arrest them and prosecute them. Heck, lock each one up for several years like you would a child porn buyer. Make him register as a sex offender. Seize his house on the theory that it's a forfeitable asset, since it was used to facilitate an illegal transaction. All because he, or he and his wife, find themselves turned on by watching pictures of people having sex. Then repeat for however many people it takes to get everyone scared of the Smut Police.

     So we really have three options:

1. The crackdown on porn is doomed to be utterly ineffective in its stated goals of preventing the supposedly harmful effects of porn on its viewers, and on the viewers' neighbors.



2. The crackdown on porn will be made effective -- by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.



3. The War on Smut will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.

Seriously, I don't see much of an alternative. (I actually thought about some alternatives aimed at financial intermediaries, for instance requiring Visa and MasterCard to refuse transactions with certain locations -- but unless that's made just as intrusive as option #2 above, it will be hopelessly ineffective, since sites can easily just periodically change their payee names, or use various offshore intermediaries. I also thought about attempts at international enforcement; but, first, the Europeans are apparently fairly tolerant of much porn, and, second, I highly doubt that we can persuade every poor third-world country, some of which have thriving trades in real flesh, to spend its resources creating and actually enforcing anti-porn laws, in the face of whatever payoffs the porn industry is willing to provide.)

     So, supporters of the Justice Department's plans, which do you prefer -- #1, #2, or #3? Note that I'm not asking whether porn is bad, or whether porn should be constitutionally protected. I'm certainly not asking whether we'd be better off in some hypothetical porn-free world (just like no sensible debate about alcohol, drug, or gun policy should ask whether we'd be better off in some hypothetical alcohol-, drug-, or gun-free world). I'm asking: How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what the Justice Department is talking about right now?

 
[Tyler Cowen, 4/8/2004 05:47:58 AM]
Liberty Fund meets Bloggers Downtown: No, that is not the name of a Jamaican dub album; rather it describes my next three days. I am organizing a Liberty Fund conference in Washington and I have invited some leading bloggers to attend. Discussants will include Daniel Drezner, Megan McArdle (JaneGalt.net), Randall Parker (Futurepundit.com), Alex Tabarrok (MarginalRevolution.com), and David Nishimura (Cronaca.com). We will discuss the malleability of human nature (i.e., whether our wives can get us to stop blogging, namely no, and apologies to Megan for this gender reference). Texts include Steven Pinker's The Blank Slate, John Stuart Mill, William James on human instincts, Richard Shweder's Why do Men Barbecue?, and Claude Levi-Strauss. Liberty Fund is a wonderful institution, and if you are ever invited to one of their conferences (public attendance is not allowed), I urge you to say yes.

Wednesday, April 07, 2004

 
[Eugene Volokh, 4/7/2004 09:11:35 PM]
A bit more on Kennedy's "Iraq is George Bush's Vietnam" remarks: Some more support for my point below -- driving home today I heard Kennedy's remarks compressed down to "Iraq is George Bush's Vietnam," by none other than NPR. Not a word about the whole deception context; just that one line.

     So either NPR is being way out of line, recklessly quoting someone in ways that's way beyond the bounds of journalistic ethics -- or, if what it's doing is understandably par for the course, given the inherent limits of people's time and reporters' memories, then one would think that old pro Kennedy would have expected precisely that, no?

 
[Eugene Volokh, 4/7/2004 06:20:02 PM]
Apropos Kennedy's "Iraq is Bush's Vietnam" remarks: I realize that this is in a different venue than his original statements, but it nonetheless seems potentially relevant to figuring out what Kennedy meant in his original comments:

McCain, who was a prisoner of war in Vietnam, said Iraq was different from Vietnam because there "is desire on the part of the people of Iraq to have their own democratic government . . . and we have the capability militarily and politically to prevail and we did not in Vietnam."

But Democratic Sen Edward Kennedy of Massachusetts said, "Vietnam ended up in a quagmire. Iraq is as well."

As reader Tom Westberg, who pointed this out to me, observes, "Quagmire is not about deception. It's about losing." And this suggests that Kennedy's earlier "Iraq is Bush's Vietnam" remarks, though made in the context of a discussion of alleged deception, were about losing as well.

 
[Eugene Volokh, 4/7/2004 06:16:26 PM]
Demands that reporters erase a tape: The AP reports:

Two reporters were ordered Wednesday to erase their tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia at a Mississippi high school.

Scalia has long barred television cameras from his speeches, but does not always forbid newspaper photographers and tape recorders. On Wednesday, he did not warn the audience at the high school that recording devices would be forbidden.

During the speech, a woman identifying herself as a deputy federal marshal demanded that a reporter for The Associated Press erase a tape recording of the justice's comments. She said the justice had asked that his appearance not be recorded.

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

The deputy, who identified herself as Melanie Rube, also made a reporter for The Hattiesburg American erase her tape.

Scalia gave two speeches Wednesday in Hattiesburg, one at Presbyterian Christian High School and the other at William Carey College. The recording-device warning was made before the college speech.

Supreme Court spokeswoman Kathy Arberg said that it is up to Scalia and his staff to set guidelines for coverage of his events. . . .

     If this report is accurate, then I don't see any legal justification for the marshal's demand, or the marshal's seizing the tape recorder (which therefore sounds like a Fourth Amendment violation to me). To my knowledge, there's no law -- it would presumably have to be a Mississippi law -- prohibiting tape recording of public events, even ones on private property. Even if the reporters had refused to abide by the Justice's request, it seems to me that at most the marshals could have insisted (presumably on the property owner's request) that the reporters leave the property. Any lawyers out there know of some specific legal principle that would authorize the marshals to act this way (again, if this is how they acted)?

     Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 4/7/2004 06:05:37 PM]
No-Fly List, which is apparently just a Hassle-Fly List: Timothy Noah in Slate has a nice article on the subject. I don't know enough about the lawsuit or the list to opine intelligently on it, but Noah's piece seemed worth reading. For a contrary view, read the ACLU's press release.

     By the way, if the No-Fly List really is just a list of people who are put through extra hassles while trying to fly -- rather than what it sounds like, which is a list of people who are banned from flying -- then who's the rocket scientist (apparently in the government, since it sounds like the ACLU is just using the TSA's own name) who gave it this name? Not good public relations thinking, seems to me.

 
[Eugene Volokh, 4/7/2004 05:31:27 PM]
Hyderabad: I'm pleased to report that my Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki has been reprinted in The ICFAI Journal of International Business Law, published by the ICFAI Law School, apparently at its Hyderabad campus.

     I remember once, when I was very young, seeing a map in which the then-state of Hyderabad was actually shown as a separate country; it was likely printed in late 1947 or early to mid-1948, and Hyderabad was not incorporated into India until a year after Indian independence. That is likely the only reason I've heard of Hyderabad, but the name stuck in my mind, which makes the publication an odd and unexpected reminder of my childhood.

UPDATE: Thanks to reader Andrew Brooks for pointing me to some details on the history of Hyderabad's absorption into India; I've changed the link in the preceding paragraph to reflect that.

 
[Stuart Benjamin, 4/7/2004 04:35:31 PM]
"Hardball" Bingo: Condoleezza Rice is going to testify tomorrow. Many people (myself included) will be interested in what she has to say and have not already made up their minds about her and her testimony. But many others have made up their minds -- notably, the partisan talking heads who populate shows like "Hardball." They already have their talking points in their heads, I'd bet. Moreover, they have better reason than usual to write their scripts in advance: My guess is that there will be few, if any, surprises tomorrow. The short format (ten questioners dividing up 2 hours and 30 minutes) doesn't allow for any person to pursue one line of questioning at length, and Rice is too well-prepared and too poised to say something really stupid.

I'm sufficiently confident about this that I think I can write up the scripts. Here are the buzzwords I expect from both sides. Play bingo at home (or, if you want, make it into a drinking game: one drink for each iteration of one of these words).

Of her demeanor, Rice supporters will say she was: "poised," "confident," "authoritative," and/or "polished."
Of her demeanor, Rice detractors will say she was: "defensive," "visibly annoyed," and/or "brusque" ; bonus (if they feel strongly) "petulant" and/or "schoolmarmish"

On the quality of her arguments, Rice supporters will say: "persuasive," "convincing," "firm," and/or "powerful"; bonus (if they feel strongly) "overpowering"
On the quality of her arguments, Rice detractors will say: "unpersuasive," "weak," "vacillating," and/or "shaky,"; bonus (if they feel strongly) "incoherent"

Overall, Rice supporters will describe her performance as: "a home run," "putting doubts to rest," "answering all the questions," "showing Clarke to be a liar," and/or "letting us get on to the people's business"; bonus (if they are really partisan) "refuting the demagogues on the other side"
Overall, Rice detractors will describe her performance as: "raising more questions than it answers," "a missed opportunity to inform the American people," "vindicating Richard Clarke," and/or "raising troubling questions about this Administration"; bonus (if they are really partisan) "you're the demagogue" (followed by: "am not!"; "are too!"; "am not!"; etc.)

I'll be interested to see whether any of the talking heads crosses ideological lines tomorrow. My guess is that they won't, and that their scripts will lean heavily on the words above.

 
[Eugene Volokh, 4/7/2004 04:01:30 PM]
They're letting anyone on a jury these days: From People v. Blake, a California Court of Appeal case decided yesterday:

After a nine-day crime spree a jury convicted appellant, Tom Blake, of ten counts of robbery, one count of attempted robbery, one count of carjacking, one count of burglary, one count of petty theft with a prior and one count of vehicle theft.

As the person who mentioned this case observed, "You'd have thought this jury would have identified with the defendant."

 
[Eugene Volokh, 4/7/2004 03:56:44 PM]
More on gambling self-bans: I posted on this a couple of days ago; here's more, from an AP story, thanks to reader Philip Gallagher:

Virginia Ormanian burned through most of her retirement savings playing slot machines in Detroit casinos last year -- something she should not have been allowed to do.

The 49-year-old gambling addict had voluntarily banned herself in August 2002 from the casinos through a state program that was supposed to keep her out.

"I was counting on the casinos to honor their contract," Ormanian said. "I had to get my life back together."

Now Ormanian and Norma Astourian are suing the casinos for breach of contract. They claim the gambling companies didn't enforce the rules of the "dissociated persons" list on which they placed themselves. . . .

A suit filed by Ormanian and Astourian against the Michigan Gaming Control Board was dismissed.

[David O. Stewart, a Washington, D.C., lawyer, who has defended gambling companies in self-exclusion and similar lawsuits, and advises the American Gaming Association,] said no plaintiff has yet to win such a lawsuit, but a verdict against the casinos could have repercussions . . . .

 
[Eugene Volokh, 4/7/2004 03:51:29 PM]
More on the Claremont hate-crime-or-was-it? David Bernstein blogged about this last month -- Kerri Dunn, a Claremont professor who reported being the target of anti-Semitic vandalism, is now being accused of staging the whole incident -- so I thought I'd pass along an update, from the L.A. Times:

[Dunn] went on to receive a law degree in 1998 and a doctorate in psychology in 2002, both from the University of Nebraska, officials there said. . . .

On Sept. 24, 1999, she was arrested and charged with driving without a license and with fictitious license plates, said Officer Katherine Finnell, a Lincoln police spokeswoman. Dunn paid $75 in fines, said chief prosecutor John McQuinn.

On Dec. 31, 1999, Lincoln police arrested Dunn for shoplifting, Finnell said. On that day, she said, Dunn hid a $30 pink sweater in her purse while she was in the dressing room of a clothing store. A store employee called police, Finnell said.

The charges against Dunn were dismissed in exchange for her paying court costs, McQuinn said.

Less than a year later, on Sept. 29, 2000, a Dillard's department store employee saw Dunn putting a shoe box in a shopping bag, Finnell said. A police officer found Dunn's shopping bag contained a pair of red size 7 shoes and some Liz Claiborne jewelry: three bracelets, a necklace and a pair of earrings, Finnell said — about $141 worth of merchandise from Dillard's.

Dunn also was carrying $403 worth of steak knives, utility knives and a pair of black size 6 Enzo Angiolini shoes from a store next door, Finnell said. . . .

Dunn was charged with shoplifting, possession of stolen property and refusal to comply with police, court records show.

Arrest warrants had to be issued after Dunn failed to appear in court for both the shoplifting and license violations, Finnell said. . . .

Thanks to Joe Yosick for the pointer.

 
[Eugene Volokh, 4/7/2004 02:27:20 PM]
More on post-military jobs: Gary Leff writes, apropos my post yesterday:

Eugene's counterexample [of military flyers going to work for the airlines] is better than he realizes, because in fact military charter work is very common. American Trans Air alone did over $200 million in military charter business in 2003. Forbes attributes an increase in military charter work as one of the key factors in Continental Airlines 6% increase in revenue in 2003. It's the biggest reason why once bankrupt World Airways is again profitable.

And in fact we do try to keep the airlines from hiring these pilots away -- by offering significant bonuses (up to $100k) for pilot re-enlistment.

At the same time, it's worth remembering that one of the reasons we're able to attract so many people into the military to become pilots in the first place is that it's a route to future civilian success. There are basically two routes to flying for a major airline: military experience or years of flying for small commuter carriers (where the pay is generally less than $30,000/yr and can be less than even $20,000).

The future rewards for a major carrier commercial pilot make both a large pool of potential pilots available and available at lower prices than they could otherwise be attracted at. In other words, the future private sector rewards subsidize a lower military employment cost.

So if the analogy works, then it undermines the argument to which I was responding -- Mark Kleiman's argument against the government's hiring contract security services ("The private firms pay better than the regular military, and are using the money they get from public contracts to bid away experienced soldiers, leaving the Army short of skilled bodies. Why should we compete with ourselves in that way? Recall that the skills that ex-Seals and Delta Force grads sell to the private outfits were acquired at public expense.") As I suggested, the availability of such post-service jobs might mean some accelerated loss of good people at the end of their enlistment (and remember that they've done the term of duty that they promised to the government), but a gain of good people at the beginning.

UPDATE: I also got a bunch of other e-mails on the subject, mostly in general agreement with this; thanks to everyone for writing, and sorry that I couldn't respond individually.

 
[Eugene Volokh, 4/7/2004 10:47:13 AM]
Kennedy and "Bush's Vietnam": What did Sen. Kennedy mean when he said Iraq is "Bush's Vietnam"? Various people have suggested that he meant that Iraq will go as badly for the U.S. as Vietnam did. InstaPundit writes that a blog named "USEFUL FOOLS says that Ted Kennedy is trying for a Tet rerun, with help from the media and Iraqi extremists. Or maybe it's the other way around." I assume that "trying for a Tet rerun" here means trying to persuade Americans that things are going so badly (even when, in InstaPundit's view, they're not) that we should pull out. He also goes on to say that "Kennedy's remark is certainly getting a lot of play around the world, and it can only embolden our enemies and imperil our friends. And as an old Washington hand, Kennedy must have known that it would get that kind of attention, and have that kind of an effect."

     Mark Kleiman disagrees, saying that Kennedy is being "slime[d]" and "misrepresent[ed]." Mark points out that Kennedy was arguing that Bush had misled the people, and that "Vietnam" in this context means "a war about which the government misled the American public," rather than "a war that the U.S. is likely to lose." Here are some relevant excerpts (go to Mark's post for longer excerpts, or to the speech itself):

The most important principle in any representative democracy is for the people to trust their government. If our leaders violate that trust, then all our words of hope and opportunity and progress and justice ring false in the ears of our people and the wider world, and our goals will never be achieved.

Sadly, this Administration has failed to live up to basic standards of open and candid debate. . . .

In recent months, it has become increasingly clear that the Bush Administration misled the American people about the threat to the nation posed by the Iraqi regime. . . .

Tragically, in making the decision to go to war, the Bush Administration allowed its own stubborn ideology to trump the cold hard evidence that Iraq posed no immediate threat. . . .

The result is a massive and very dangerous crisis in our foreign policy. We have lost the respect of other nations in the world. Where do we go to get our respect back? How do we re-establish the working relationships we need with other countries to win the war on terrorism and advance the ideals we share? How can we possibly expect President Bush to do that. He's the problem, not the solution. Iraq is George Bush's Vietnam, and this country needs a new President. . . .

     My thoughts: I can't read Kennedy's mind -- but I do think that the metaphor "Vietnam" has a pretty well-established dominant meaning in America, and that is an unexpectedly long war against a seemingly weaker enemy that America ultimately loses, at great cost. It's actually quite common for such terms to have a well-established dominant meaning, which is what makes them especially useful; consider, for instance, "Armageddon" and "Waterloo."

     It's true that Kennedy's speech focuses on a less commonly stressed aspect of Vietnam, which is that the U.S. government wasn't candid with Americans about the subject. But even in that context, invoking Vietnam -- not just as an explicit analogy, e.g., "George Bush is deceiving us about Iraq like Lyndon Johnson deceived us about Vietnam," but as an unqualified metaphor, "Iraq is George Bush's Vietnam" -- is likely to bring to many listeners' minds the dominant meaning.

     Even reading the statement in context, the reference to Vietnam thus suggests something more ominous than just that Bush is being dishonest: It suggests, because of the force of the dominant meaning, that Bush's actions will lead us to defeat. Say that I'm talking about how someone came back from political defeat, and is now fighting a key battle of his second political ascendancy against several enemies at once; and after a detailed discussion of this, I say "this is [the person's] Waterloo." It's very likely that "Waterloo" will convey to people the image of a defeat -- the dominant meaning of the metaphor -- even though the context might simply point to a narrower meaning of a key battle after a comeback, fought against several people.

     Likewise, say that I'm talking about a battle in the Middle East, and refer to it as an "Armageddon." It's very likely that "Armageddon" will convey to people the image of a massive, ruinous fight that may implicate the whole world -- the dominant meaning of the metaphor -- even though the context might simply point to a narrower meaning of a battle in the Middle East. The same, I think, is true for saying "Iraq is Bush's Vietnam": The dominant conventional meaning of the metaphor is, I think, going to seep in even if the context would otherwise suggest a narrower meaning.

     And this is just to people who see the whole context. Most people don't see the whole context, and that's not the pro-Bush forces' fault -- it's the natural process of editing that happens whenever the media covers a long speech that has a juicy, quotable line. Consider this CNN story, for instance:

[HEADLINE:] Kennedy: 'Iraq is George Bush's Vietnam'
[SUBHEAD:] Bush official, GOP respond sharply to senator's criticism

WASHINGTON (CNN) -- Sen. Edward Kennedy launched a blistering election-year attack on the Bush administration's candor and honesty Monday, saying President Bush has created "the largest credibility gap since Richard Nixon."

The Massachusetts Democrat said that Iraq was never a threat to the United States and that Bush took the country to war under false pretenses, giving al Qaeda two years to regroup and plant terrorist cells throughout the world.

"Iraq is George Bush's Vietnam," Kennedy said at the Brookings Institution, a Washington think tank. . . .

The story does refer to Kennedy's complaints about the Administration's lack of candor, as well as to Kennedy's assertions that the Iraq war will indeed hurt the war on terror. But this quite abbreviated context isn't enough, I think, to lead most readers to say "Oh, he just means Vietnam in the narrow sense of a war that wasn't honestly pitched." I'll bet that most readers would understand Kennedy as conveying the dominant meaning of the metaphor "Vietnam" -- a war that is likely to drag on for a long time, and ultimately be lost at great cost. And that's in print; consider how truncated the context is likely to be in radio or TV broadcasts:

For the president, these are some of the worst days of the occupation--the most gruesome violence against Americans to date, a new Shiite uprising and fresh doubts about whether the deadline for a transfer of power is realistic. At home, Democrats are now ratcheting up the pressure. Frequent critic and John Kerry ally Senator Ted Kennedy has called Iraq 'Bush's Vietnam.' Today Kerry himself questioned the motives behind the president's June 30th deadline to hand over political power to Iraqis.

That's from the NBC Nightly News transcript, April 6, 6:30 pm. Other broadcasts might provide some more context -- but, again, I think not enough to dislodge the primary meaning of the metaphor.

     So, as I said, I can't read Kennedy's mind. Nor would I say that he wants to see the U.S. defeated, though it doesn't seem implausible that he wants to see the U.S. withdraw as soon as possible, and hopes that the perceived problems in Iraq will help build pressure for such a withdrawal.

     But when one uses a metaphor that's so closely tied in people's minds not just to deceit but to defeat, and when one is an experienced politician who knows how much of the surrounding context is likely to be vastly compressed by the media, one ought to expect the metaphor to indeed be seen as a prediction of defeat. And that suggests that this was indeed likely (though of course not certain) that Kennedy intended the metaphor to be understood precisely that way, as predicting defeat as well as condemning what he sees as the Administration's deception.

 
[Tyler Cowen, 4/7/2004 10:23:12 AM]
The latest from Camille Paglia:

"The visual environment for the young, in short, has become confused, fragmented, and unstable. Students now understand moving but not still images. The long, dreamy, contemplative takes of classic Hollywood studio movies or postwar European art films are long gone. Today's rapid-fire editing descends from Jean-Luc Godard, with his hand-held camera, and more directly from Godard's Anglo-American acolyte, Richard Lester, whose two Beatles movies have heavily influenced commercials, music videos, and independent films. Education must slow the images down, to provide a clear space for the eye...By processing depth cues, our eyes orient us in space and create and confirm our sense of individual agency. Those in whom eye movements and vestibular equilibrium are disrupted, I contend, cannot sense context and thus become passive to the world, which they do not see as an arena for action. Hence this perceptual problem may well have unwelcome political consequences."

Here is the the full article, here is a pdf link to the same. As you might expect, Paglia covers a great deal of ground in a short piece. I'm still waiting for volume II of Sexual Persona, the projected work on cinema.

 
[Sasha Volokh, 4/7/2004 09:13:53 AM]
Is this entirely fair? Is it right to say, as the post says that Tyler links to below, that the "nationalize health care" view is silly on its face because we already have a 65-70% (estimated) public health care system?

Trent writes:

How do we define and measure the types of health care systems?
I think this is the easy question to answer in a way that all in the debate can agree. I would define it such that a perfectly nationalized health care system would be one in which the government (at any level) paid for 100% of total health care expenditures. Anything above 50% is marginally nationalized. Conversely a perfectly free-market system would be one in which this figure was 0%. Anything below 50% is marginally free-market. Anyone have a problem so far? Good, I didn't think so.

I'm not sure "we," the hypothetical Trentian readers ("Yes, Socrates"), should be so quick to agree there. When I think nationalization, I think not only of who pays but also of who controls. For instance, suppose the government stopped providing public schooling (where it controls the curriculum) but paid for all private schooling through generous vouchers (where the private providers would control the curriculum). By Trent's definition, that's still a perfectly nationalized system, but voucher advocates would characterize that as a free-market alternative, since government curriculum would have dropped from 100% to 0%.

Back to health care: I gather (I'm not that well informed on this issue, but I do gather) that the health-care nationalization argument goes something like this: the government currently pays a lot for health care, but unfortunately, people still get to make their own (reimbursed) decisions, and so, understandably -- and as anyone with a sense of markets and incentives should understand -- they're profligate with our public funds. We're in this uncomfortable no-man's-land of partial regulation, where cash-flow rights and control rights are separated (think banking insurance), and that can be the worst of all possible worlds.

The two possible directions to go: keep the government funding but increase government control, or keep the private control but increase private funding. You might think one's better than other for various reasons (Hayekian knowledge/innovations reasons and/or liberty reasons one way; safety nets and/or paternalism the other way). But either way, the theory would go, might be an improvement over the current situation where anyone can choose and everyone must pay for it. (Back to the education example above: this has a close analogue in the anti-voucher argument that goes "And we're going to use public funds to subsidize Farrakhan schools and witches' covens?")

In any case, in this new two-dimensional model (with control on one axis and funding on the other) you can't characterize it as Trent did, a la "How can you ask for more 'nationalization' when we're already so 'nationalized,' so presumptively 'nationalization' is the source of our problems?" -- a question that seems to rely on a loose understanding of "nationalization."

 
[David Bernstein, 4/7/2004 08:36:01 AM]
Your Chance to Get a Justice Stevens Bobble Head Doll: The Associaton for Public Interest Law at George Mason Law School is holding its annual fundraising auction tomorrow night, starting at 8:00 p.m., at the Ballston Hilton in Arlington. Among other items that will be auctioned off are three Justice Stevens bobblehead dolls, courtesy of the Green Bag, which is published at GMU. These dolls have thus far been available only to the one thousand or so subscribers to the Green Bag, so if you want one tomorrow night may be your only opportunity.

 
[Tyler Cowen, 4/7/2004 04:56:38 AM]
Question of the day: "So When Are We Going To Get That Free-Market Health Care Everyone's Complaining About?"

Read this post, all our lives are at stake. Here is the clincher:

"If I had to make a wild guess, our health care system will be paid for by explicit or implicit public funds at a rate of 65-70%. My question is this: if we have a nationalized health care system now, and that system is by your estimation broken, is more nationalization the way to go? Especially when every other sector or industry in this country is privately funded and avoids this problem. Except, that is education and the military. Oh, yeah, they're publically funded, too."

I loved this post, it deserves widespread circulation.

Tuesday, April 06, 2004

 
[Eugene Volokh, 4/6/2004 09:11:20 PM]
Post-military jobs: Mark Kleiman writes, as part of his pragmatic argument against the government's hiring contract security services:

The private firms pay better than the regular military, and are using the money they get from public contracts to bid away experienced soldiers, leaving the Army short of skilled bodies. Why should we compete with ourselves in that way? Recall that the skills that ex-Seals and Delta Force grads sell to the private outfits were acquired at public expense.

     Mark has a point, but I wonder how far it goes. As I understand it, many Air Force pilots get better-paying jobs with the airlines when they leave the service. They're selling to private airlines skills that were acquired at public expense. Some of them might leave the service earlier because of these job opportunities.

     Should we be worried about that? Should we try to keep the airlines from hiring them away? I realize the situation isn't completely analogous -- the government generally doesn't do much hiring of private airlines for military transport (though I vaguely recall that this is sometimes done). But still, the airlines are competing with the Air Force for skilled pilots, and I'm sure airlines get various government benefits of one sort or another.

     One possible answer might be that, yes, we should be worried about this. Another, though, is that the military recruits people partly by promising to teach them various skills that will help them get a good job. When potential soldiers consider the possibility of them being employed as airline pilots, or even as private security people -- or when they hear about ex-soldiers making good money in some field -- they might be more likely to sign up. So there might be some accelerated loss of good people at the end of their enlistment (and remember that they've done the term of duty that they promised to the government), but a gain of good people at the beginning.

     I'm not sure whether this analysis is right; and in any event, there may be other problems with contracting to well-paid private security people, ex-soldiers or not (such as possible morale problems among military members who see others working alongside them and getting paid much better money). I just don't think that "we don't want our soldiers to get such good jobs that they don't reenlist" response is necessarily the correct one.

 
[Eugene Volokh, 4/6/2004 09:00:04 PM]
Mercenaries: Mark Kleiman responds to my question about what's wrong with mercenaries -- contract private security people who provide security at U.S.-run Iraqi installations. Phil Carter has more and yet more. Mark's and Phil's posts, though stress that there's nothing inherently immoral about the mercenaries themselves, but that using them is a bad idea that might lead to various problems.

     That may be right; I'm not sure, and much depends on the particular circumstances and the particular implementation of the program. My point, though, was simply that there's no inherent reason that we should be treat the mercenaries as morally less worthy (or less deserving of mourning) than private security guards and other people who do put themselves in harm's way for money. Whether we should actually hire them or not is a different matter.

 
[Eugene Volokh, 4/6/2004 01:49:29 PM]
Montanan readers, take note: Brian Morris, who clerked for Chief Justice Rehnquist the year I was clerking, is running for the Montana Supreme Court. If you're a Montanan, you should definitely vote for him -- he's a very smart and highly qualified guy, and I'm sure would do an excellent job. There'll be a debate involving the five candidates this Wednesday, April 7th, at 7 p.m. in the Castles Center in the law school library at The University of Montana; if you're in the Missoula area, and are interested in the race, you might want to stop by and watch (or encourage your Missoula friends to do so). The program will also be broadcast live at 7 pm Wednesday on Yellowstone Public Radio (Billings) and Montana Public Radio (Missoula).

 
[Eugene Volokh, 4/6/2004 10:50:06 AM]
Punishments of students and teachers for violently themed literature has now graduated from high school to university, the San Francisco Chronicle reports:

The quiet freshman from Seattle who sat in the back row had submitted a disturbing short story, a fictitious first-person account of a young serial killer. The story was so rife with gruesome details about sexual torture, dismemberment and bloodlust that the teacher [Jan Richman] panicked, wondering what to do now that she had already handed out copies to her class to take home and read.

"I've read a lot of student stories where they're trying to emulate some shock genre," Richman said last week. "This was different. It was full of sex and violence, incest, pedophilia. There was no story, no character development -- just hacking up bodies."

Still, she said, "he was definitely bright, and I thought there were parts of the story that were well written.'' In addition, it was not the first serial-killer story she had read in her six semesters on the faculty at the Academy of Art University (formerly College) in San Francisco: "It was not even the first story that had somebody slicing off someone's nipples."

Nevertheless, she went to her department coordinator looking for advice. Should she confront the student before the next class? . . .

News of the story shot up the administrative ladder, from Eileen Everett, chairman of the liberal arts department, to Vice President Sue Rowley and to President Elisa Stephens, granddaughter of the school's founder. By the time Richman's weekly class was set to reconvene, the university's director of security had called in the San Francisco Police Department's homicide division.

After a brief interrogation in his dormitory, the student, who did not respond to The Chronicle's requests for comment, was put on a plane and sent home to his family. The next day, according to Richman, the young man's parents called the university, alleging that their son had been encouraged to write about violence after reading a short story assigned in Richman's Narrative Storytelling class. . . .

The story was "Girl With Curious Hair," the title piece of a 1988 collection by David Foster Wallace, author of "Infinite Jest," one of the most widely acclaimed novel of the 1990s. "Girl With Curious Hair" features a character called Sick Puppy, a yuppie who hangs out with a crowd of punk rockers for cheap thrills. One of the young women lets him extinguish matches on her skin.

Richman assigned the story, she said last week, as an example of "an unsympathetic narrator, a guy who is sadistic and sexist." But the story was not part of the class's authorized textbook, and fellow instructors say administration officials were angry that Richman had not offered the information sooner. . . .

In a series of meetings, Richman said, administrators warned her about her attitude. Despite her consistently high evaluations from students, the administrators suggested that she solicit character references from her colleagues. . . .

[The administration then] sent an e-mail informing Richman that Rowley would not rehire her for the new semester. . . .

     I sympathize with administrators' concerns about the risk of violence, aimed both at students and at administrators and teachers. But a lot of literature has violent and disturbing themes (perhaps because a lot of life has violent and disturbing themes). Are university students and professors really supposed to entirely avoid it, on pain of expulsion and firing?

     Thanks to Shawn Chapman for the pointer.

UPDATE: Reader Alan Aronson points to this item from the story:

[Disaffected instructor Alan] Kaufman said one of his students had recently been asked to leave the school when she submitted a paper alluding to suicide threats. Like Richman, the instructor approached his superiors for advice on possible counseling services, only to see the student swiftly expelled.

A funny way to help students (if this account is accurate).

 
[Eugene Volokh, 4/6/2004 10:16:14 AM]
Proposed changes to California Three Strikes: Patterico's Pontifications disapproves of them, and gives some pretty good reasons, including some important legal points in this post:

Multiple separate violent crimes count as only one strike if tried in a single trial.
Under this rule, serial murderers and rapists would get only one strike conviction for their multiple violent crimes. For example, Richard Ramirez (the "Night Stalker") would get only one strike for his 13 separate murder convictions. Charles Manson would have only one strike for his seven murder convictions in the Tate-LaBianca murder case. And from what I can tell, it appears that Richard Allen Davis, the guy who murdered Polly Klaas, never would have faced a third-strike sentence. . . .

The law redefines several offenses as non-strikes. For example, criminal death threats and most residential burglaries will not count as strike priors. You can now drive drunk (or lead police on a high-speed chase, or both) and put somebody in a wheelchair -- and that's not a strike if you didn't specifically intend to do so. Setting a massive brush or forest fire -- or two, or four -- will no longer be considered a serious crime unless someone is hurt or a building burns down. . . .

The strike law will now apply only to third strikes that are "serious or violent." This may sound attractive to some, but it is far too extreme a solution -- especially in light of the redefinition of so many crimes as non-strikes. For example, Charlie Manson could be paroled and break into your house or threaten to kill you -- and he wouldn't face 25-to-life, despite his numerous previous murder convictions. Is this really what we want?

Probably the scariest thing about the initiative is that it opens the floodgates for hundreds of violent prisoners to be released. . . .

plus two pretty powerful examples in this one.

     I don't think one can make a really informed judgment on these questions based just on examples, or on general principles -- I'd like to hear more, for instance, about the profile of the average offender who's likely to be released, so I can get some sense if the savings in prison costs are likely to outweigh the extra risk of future crimes. (The interests of the criminals, all of whom had to have had at least three felony convictions, two of which had to have been at least of the seriousness of residential burglaries, aren't terribly important to me here, though I suppose they might play a small role.) Still, the examples help make concrete the problems that Patterico identifies.

 
[Eugene Volokh, 4/6/2004 10:05:08 AM]
Precommitment strategies: The Arizona Daily Star reports:

Some Tucson casino gamblers who don't know when to quit are trying a new tactic: banning themselves from all casinos in Arizona.

A year-old state law allows people to ask casinos to help prevent them from gambling. Violating a "self-exclusion" contract means casinos refuse to pay winnings, kick out banned gamblers, or even arrest them for trespassing.

A total of 380 Arizona residents, including 42 in the Tucson area, have elected to ban themselves since the policy began about a year ago . . . .

The Tohono O'odham Gaming Authority, which operates the Desert Diamond casinos in the Tucson area, has expelled three or four gamblers for violating self-imposed bans this year, according to Joe Calabrese, CEO of the gaming authority. . . .

People can choose to be banned for one, five or 10 years.

Once enacted, the ban cannot be undone, even if the person has a change of heart, Severns said. . . .

A 200-person study in Canada found that about a third of people abstained from all gambling during their self-imposed ban, while more than half switched to lotteries or other wagering. . . .

Thanks to Dan Gifford for the pointer.

 
[Eugene Volokh, 4/6/2004 09:09:23 AM]
Place name of the day: Archipelago of the Recherché (see here).

 
[Tyler Cowen, 4/6/2004 08:35:52 AM]
Brad DeLong and I agree: Are you surprised? Here is an update (follow the links if you are fuzzy on the background) over our exchange on my VC post on immigration and liberalism.

 
[Tyler Cowen, 4/6/2004 07:11:08 AM]
Quotation of the day:

"I don't want to hear anyone complaining about the deficit unless they immediately begin to list ways of taking things away from old people and making them work harder and longer. Otherwise you aren't really bothered by the deficit at all."

Here is the link. As phrased the quotation is overstated and oversimplified, but it is a nice provocative jolt. Of course we could lower the measured government deficit by raising taxes and taking things away from younger people also. That being said, as society ages there is real dissaving (i.e., a kind of deficit), regardless of how the tax system manages cross-demographic flows.

Monday, April 05, 2004

 
[Eugene Volokh, 4/5/2004 06:12:10 PM]
Number of mentions of blogs in LEXIS-accessible newspapers and magazines, mostly over the last couple of years (searches intentionally limited just to the name of the blog, and not including the name of the blogger without a reference to the blog):

Query	Mentions
InstaPundit	480
talkingpointsmemo.com or (marshall w/s talking points memo)	223
plural(Atrios)	64 (the "plural" avoids "atrio," but includes some false positives)
DailyKos	25
Volokh Conspiracy or volokh.com	34

I omitted Andrew Sullivan and Mickey Kaus, who were already fairly big journalists before they started blogging.

     Incidentally, this might help show why the media isn't noticing the DailyKos controversy. They don't notice us that much, period. Nothing to complain about -- I'm glad at the attention the blog is getting, both from readers and from journalists -- but it does put matters in perspective.

 
[Eugene Volokh, 4/5/2004 05:31:24 PM]
Now on the Hugh Hewitt Show, talking about the Daily Kos controversy, together with John Hinderaker (Power Line).

 
[Eugene Volokh, 4/5/2004 05:27:58 PM]
"Mercenaries": One thing that puzzles me about the whole Daily Kos matter (see the original post, which has been rightly reviled, here and the non-apology apology here) -- what's wrong with people who provide security services for money? Security guards, both ill-paid and well-paid do it. Soldiers and police officers do it, too; I'm sure that most of them also do it in part, or even mostly, to serve their country and to help people, but many private security providers might have similar justifications. More broadly, most people in most socially valuable occupations do what they do for money. Why isn't security service, or even military service the same?

     If a security guard at a bank was brutally killed by a bunch of domestic political terrorists, we'd feel pretty bad about it, just as we'd feel bad if a policeman was killed. Seems pretty similar for foreign security guards, which is what these people more or less appeared to be.

     Now there might be some differences in some situations. For instance, if some government that's fighting an evil war (not just a perhaps unnecessary one, or one that isn't worth American blood and treasure, but an evil one), one might fault foreign mercenaries fighting for that government more than one might fault domestic soldiers. The soldiers may be draftees as well as volunteers; they also seem more likely to be fighting out of duty, patriotism, or loyalty -- the mercenaries seem less likely to be motivated by such reasons.

     But here these people were fellow Americans, who seem to be defending good guys against bad guys. They were on our side, and on the right side. Even if you think our soldiers shouldn't be fighting in Iraq, why should it justify contempt for our civilians who are earning a living protecting people in Iraq from terrorists and criminals?

     Mark Kleiman, by the way, has an interesting post on this.

 
[Jacob Levy, 4/5/2004 03:39:10 PM]
Quarrelsomeness: OK, here's the Joel Feinberg story I promised. I never met the man. But this made an enduring impression on me from early in my undergraduate days.

The acknowledgements of Feinberg's books carry on a decades-long spat with one Josiah S. Carberry. This example from Freedom and Fulfillment is a particularly entertaining one:

For a variety of reasons it has become my custom to mention my former colleague, the late Josiah S. Carberry (1874-1988), in the acknowledgements for my books. As I reported at the time, Carberry died shortly before the publication of my Harmless Wrongdoing a few years ago. There would be no point in mentioning this matter again were it not for the fact that I have recently received a letter from Carberry in which he argues with his usual fanatic stubbornness that he is not dead! His argument, in my opinion, is weak and contrary to all the known evidence. It combines a misapplication of the Cartesian cogito with the kind of self-deception that characterized Carberry's long life. Some people simply cannot bear to accept the truth about themselves.

Earlier, in Harm to Others, he had written

Philosophical helpers have been too abundant to acknowledge individually in this limited space. I hope I have remembered them all in the notes. In any event, they know who they are, and I want them all to know that I am immensely grateful for their help. My former colleague Josiah S. Carberry will claim to be among their numbers. He may even go so far as to sue me for plagiarism. Let him sue; he won't have a chance.

In Harm to Self,

On this particular volume I received no help from Josiah S. Carberry. For that too I am grateful.

And in Harmless Wrongdoing, as mentioned above:

Finally, I must mention Professor Josiah Carberry, word of whose death has just reached me. De mortuis nil nisi bonum. On his behalf it must be said, in all fairness, that his actions were rarely as bad as his intentions.

For a time Feinberg taught at Brown, where Carberry was Professor of Psychoceramics. Carberry was something of a legend among Brown undergraduates, who sometimes took it upon themselves to publicize his activities to the wider world. But few kept up a public engagement with the specialist in cracked pots for as long as Feinberg did, though the latter had left Brown a very long time before. I found his one-sided accounts of a very long-term quarrel charming and delightful and sure proof of a very good sense of humor.

A quick citation search reveals that Carberry hasn't published much that has been cited, but maybe that's because it took such a long time to master new disciplines; the citations for "Carberry JS" jump from an article in classics in 1934 to one in plasma physics-- with another Brown professor as lead author-- in 1987. He also apparently dabbles in cultural analysis. The introduction to this book (use the "search inside the book" function using "Josiah") is adapted from "What Killed Science Fiction," by one Josiah S. Carberry, Professor of English, Brown University at San Diego, XXXI The Journal of Popular Culture.. But nowhere, it seems to me, has Carberry come quite so much to life as in Feinberg's accounts of what a know-nothing old coot he was...

 
[Tyler Cowen, 4/5/2004 03:26:59 PM]
The new Harry Potter trailer: Here is the link, courtesy of the electricity goddess, Lynne Kiesling. Don't forget that the director is Mexican Alfred Cuaron, who also did the underrated and Freudian Little Princess, the failed but interesting Great Expectations, and the sublime Y Tu Mama Tambien. I have high hopes.

 
[Eugene Volokh, 4/5/2004 02:47:32 PM]
Publishing in a Top 20 law journal: I'm happy to report that Seth Barrett Tillman, a class of 2000 law graduate who practiced for a couple of years and is now clerking for a district court judge, is publishing his article A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia was Rightly Decided, and Why INS v. Chadha was Wrongly Decided in the Texas Law Review (not a title I would have chosen!) -- an impressive placement that many tenured law professors would envy.

     This is still more evidence that even non-law-profs, such as recent law school graduates or even current law students can get their pieces placed very well through the competitive screening process. So don't let the process daunt you. Yes, there is some discrimination by law review editors against non-academics, and especially against current law students. But it is certainly possible to get your articles accepted despite that, and in very good places. So don't let your concerns about such discrimination get you down: If you have a good paper, polish it, polish it some more, and send it around.

 
[Eugene Volokh, 4/5/2004 02:36:47 PM]
Jews to give up control of the world: Dan Barash has the scoop:

In a press release, Jews stated, "Although we have thoroughly enjoyed the challenges of world domination for the last 300 years, we feel it's time for gentiles to take control of their own affairs. We plan to spend more time with our families and pursue other interests." . . .

 
[Jacob Levy, 4/5/2004 01:29:19 PM]
Blogging: I don't think anyone here on the Volokh Conspiracy has commented directly on l'affaire Kos, and I don't mean to start. But Julian Sanchez has a nice piece up about the partial professionalization of the blogosphere.

I know that when I switched from my own blog to this one (which even then had more than ten times the readership, and the readership has grown since then) I... eased up on the light-and-quick posts that might say something off-handed about a serious topic. I still say light-and-quick things about movies, geek culture, coffee, and so on, but less frequently so about matters of political or intellectual substance. As bloggers like Matthew Yglesias and Kevin Drum turn pro, no doubt they view blogging as a bit less of a game than they used to. As ad money flows into the blogosphere, less of a game still. As political ad money flows in, less still.

Given the sums at stake, candidates are unlikely to abandon the blogosphere, but they will be increasingly sensitive to the risks of being associated with writers who shoot from the hip. That's understandable enough, but it does make one wonder: Now that it's possible for bloggers to make it big, will the most ambitious of them reign in the very un-journalistic recklessness that made the form so much fun to begin with? More importantly, will the potential political leverage provided by the link between politicians and bloggers give partisans even more reason to ensure that every molehill grows to Everest-like proportions?

I mentioned a little while ago that every blogger I read on a daily basis is either a full-time professor, a full-time student, or a professional or semiprofessional paid writer or blogger-- except, as I noted then, Belle Waring, who as far as I know is none of these. People in all of those categories have at least a bit of extra-blogospheric pressure on what they post, as does anyone who's ad-dependent. Sometimes that probably means a desirable degree of self-consciousness and self-editing to avoid saying stupid and offensive things. But sometimes, too, it takes some of the play out of blogging.

 
[Eugene Volokh, 4/5/2004 01:24:09 PM]
Second Amendment: The opinions of several Ninth Circuit judges on the Second Amendment, urging (though unsuccessfully) an en banc rehearing on the individual/collective rights question, are here. The Tenth Circuit decision from a couple of weeks ago that followed the Tenth Circuit's prior collective rights caselaw, though with one judge expressing an opinion more open to the individual rights view, is here.

     The collective rights view is certainly the dominant view in the court of appeals -- only the Fifth Circuit has endorsed the individual rights view. Still, is enheartening to see quite a few circuit judges in various circuits reaffirming that view; it makes the odds a little better (though still impossible to calculate) should the Supreme Court get the issue in the next few years, likely as to the challenges to the D.C. gun ban. In close cases, Justices are indeed influenced by what they see as the mainstream of judicial opinion. If it had looked like all judges except two on the Fifth Circuit endorsed the collective rights view, some of the Justices would have probably taken the individual rights view less seriously. But if many respected dissenting judges, both liberal and conservative, in various circuits endorse the individual rights view, at least some Justices are more likely to be open to it, even if the circuit bottom-line scorecard still reads 8-1 or something along those lines. Thanks to How Appealing for the pointer.

     I'm also pleased to report that, among many other sources, Judge Gould's dissent cites The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

 
[Jacob Levy, 4/5/2004 11:55:14 AM]
Caffeine revisited: Once upon a time, I posted an account of my caffeine intake during a fairly typical day. The Chronicle took the idea and ran with it, asking four academics to keep caffeine diaries. Brad DeLong remains a piker at just over 373 mg in a day. Daniel Mendelsohn, on the other hand, clocks more than 1400 mg, which I only hit on a bad day. (Despite occasional attempts to cut back since I wrote the post linked to above, I remain at a steady 1000-1350 mg per weekday.) And NYU President John Sexton downs 850 mg before 10 am.

Sexton's ten cups at the beginning of the day, followed by twenty-three cups of decaf spread through a day of nonstop meetings (many of which are 45 minutes or longer), does invite an obvious question. How many of those meetings can he make it through without, well, having to get up and leave?

UPDATE: For the record, today has been a little below average so far. Three cups of brewed coffee before I left for work; two triple espressos and three Diet Cokes during the day. c. 1050 mg.

I just found a picture of Mendelsohn, at the site for a Princeton conference on Jewish writers that had an appallingly spectacul