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Wednesday, January 14, 2004
The Civil Rights Cases:
I'm teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875's prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress's power under the 13th and 14th Amendments. In debates over Lochner and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority's opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involvig inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy (see link for a further discussion) the debate over Lochner has been. UPDATE: Tim Sandefur has an interesting response, arguing that the public-private distinction enforced in the Civil Rights Cases reflects the same sort of classical liberal view of state and society as Lochner. Perhaps, but the liberal scholars I've noted seemed to imply that the Civil Rights Cases themselves were decided based on a Lochner-like liberty of contract or property rights theory, which is simply false. And I think the ultimate schism in the Civil Rights Cases Court was over how much the Reconstruction Amendments changed the balance of federal-state power, especially vis-a-vis Congress's power to aid African Americans, and not over generally differing views of state and society. Harlan was the lone dissenter in the Civil Rights Cases, and though he dissented in Lochner, he also either wrote or joined some of the most significant liberty of contract cases. Overall, Harlan falls into both the nationalist and "moderate Lochnerian" camps, supporting strong Congressional regulatory authority in a variety of areas, but also having a somewhat narrow view of the states' police police powers. FURTHER UPDATE: A reader agrees with my point on Lochner, then adds, the much more interesting--and much more damning--debate goes to the legitimacy of the "federalist" reasoing deployed in The Rights Cases. In short, the Court was wrong. The 13th and 14th Amendments by their very terms are assertions of federal power vis-a-vis states and citizens. Relying on southern states' civil rights laws was really
laughable in the way it blinked at the enforcement problems. Remember, the 14th amendment's text: "nor deny to any person...equal protection of the laws." Enacting a law denying equal protection and failing to enforce laws that "guarantee" equal protection both sound like denials to me. Further, the 14th amendment does not preclude a *private remedy,* but at most merely defines a violation as requiring state action. I agree, but in 1875, and even 1883, it was not clear that state courts would fail to guarantee blacks' access to common carriers and inns, and indeed there were successful lawsuits in southern state courts against train companies and others who mistreated black customers. The situation in the South was rather fluid until the 1890s, when Jim Crow hardened and blacks were disenfranchised. That said, it's also true that the Supreme Court stuck to its guns in a few cases in the first decade of the 20th century, holding that individuals denied enjoyment of their civil rights by private action had remedies only in state courts that clearly weren't going to aid them. In short, I agree with the reader that a violation of "equal protection of the laws" can include states not enforcing facially equal laws, and that, if Congress acts to redress such a situation, it is acting within its powers under Section 5 of the 14th Amendment. But the Supreme Court still has to distinguish between such situations, and pure federal power grabs, as it did in the recent case of United States v. Morrison, holding the Violence Against Women Act unconstitutional in part based on the Civil Rights Cases. It's a debatable point, but I find that it streches credibility to believe that women in the 1990s were being systematically and unequally denied remedies in state court for violence committed against them by men.
Bernstein Critics:
Thanks to Eugene's defense of me below, but it raises an interesting issue: there are a few folks out there who love to complain about my posts (you know who you are). Others have complained about other Conspirators. [Edit: And I don't mean occasional disagreement or criticism, I mean, "So and so is ruining the Volokh Conspiracy."] Yet, there is handy-dandy way to exclude any of us from your daily reading: http://volokh.com/index.htm?exclude=[name of blogger], which regular readers are aware of. So why do the complainers continue to read my (or their) posts? I can only assume that I (or they) fall into the "love to hate" category, the way some conservatives just can't wait to fisk Paul Krugman, or some liberals curse at Rush Limbaugh every day (halevai I should have their audiences!) Interesting phenomenon, that.
More on BK:
My previous post on Burger King's "generous" offer to give customers a Whopper without a bun for the same price as a Whopper with a bun reminded me of an even better story about BK. In the days before the Veggie Whopper, at a time when I subscribed to Vegetarian Times, I recall that BK told vegetarian inquirers that a vegetarian Whopper was available--a Whopper with the normal bun, lettuce, tomato, pickle, and mayo, but without the burger patty. Burger King "generously" offered this vegetarian version of the Whopper for exactly the same price as a regular Whopper. BTW, the best deal in vegetarian fast food is by far and away Taco Bell's Bean Burrito[edit: I have yet to try the new "Cheesy Bean 'n Rice Burrito]--order it without the cheese if you are vegan or are watching your weight, or just don't like icky Taco Bell cheese. It's only 79 cents and quite tasty (I have visions of Tyler, who is of course an expert on local ethnic dining, cringing as he reads this). UPDATE: I've been reminded to mention the short-lived left-handed Whopper. And here is evidence that as of 2001, it was possible to get charged more for a Whopper meal sans meat than for a regular Whopper meal.
Talk about Jews getting on people's nerves:
A blogger complains that my friend and coblogger David Bernstein's posts "about judaism" are "getting on [his] nerves," and says that if David doesn't "shut up about judaism (or at least post about something else every once in a while)," or else the blogger will "chang[e] the permalink" ("or maybe not"). I'm actually delighted that David posts a considerable amount about Israel and about American Jews (not, technically speaking, about Judaism), as well as about lots of other topics (see here for all David's recent posts, which include various other subjects). If people dislike posts about topics related to Israel and to Jews, and think it would be best if the bloggers "shut up" about the subject, then by all means those people should change their permalinks or do whatever else it takes to insulate them from such apparently annoying, unimportant, or unworthy topics.
Silent letters:
We all know about the common "silent e," but which letters in English are silent at least in some words? "Silent" is, I realize, not a fully well-defined term, but I mean a letter that is not pronounced (rather than just pronounced in a distorted way, as the first "l" in "colonel"). I exclude situations where two letters in a row have the same sound, for instance the last two letters in "bass" or "clock"; I do not treat either as silent. A word is acceptable if it (and the pronunciation that shows the letter's silence) is listed as an English word in any standard online dictionary. Don't complain that the word is "really foreign" because it's borrowed from a foreign language. Most English words were borrowed from some other language. I've put up my current tentative answer here; e-mail me if you have words that match some of the letters for which I don't yet have words. No need to send any words for letters for which I already have words, unless the current word is potentially controversial, and the replacement is open-and-shut. UPDATE: Got lots of e-mails, too many to respond to all individually, I'm afraid, though I appreciate all of them. We now have everything except f, q, and v. "Lacquer" and such don't qualify, I think, for the same reason that "dock" doesn't qualify; "halfpenny" is possible for "f" (thanks to Ken Hirsch), and, surprisingly, "fifth," but apparently both are sometimes pronounced with the f and sometimes without; "chef d'oeuvre" and "roman a clef" are listed by my New Shorter Oxford as still being foreign phrases; "marijuana" is the only one for "j," and I'm looking for something better. So if you have genuine silent f's, silent j's, silent q's, and silent v's, let me know.
Primary prediction restated:
A year and a week ago, I said the following. With the Democratic presidential field almost complete, I offer my first NH primary prediction, 55 weeks in advance. Richard "Eyebrowless Man" Gephardt, who utterly failed to connect with NH voters in 1988, will utterly fail to do so again in 2004. Protectionism, unionism, and midwestern agriculture subsidies just aren't the core issues for NH Democrats. He will finish no better than fifth, behind at least Kerry, Lieberman, Edwards, and Dean. In the 1984 NH Democratic primary there were Democrats who finished behind write-ins for Ronald Reagan on the Democratic ballot. Success for Gephardt in NH will be finishing ahead of write-ins for Bush, and ahead of Al Sharpton; and he might not pull those off. Latest tracking poll results:Gephardt in fifth place, behind Dean, Clark, and a Lieberman-Kerry tie, within the margin of error of Edwards, Kucinich, and Sharpton.
Conundrum for the day:
Here is a philosophical problem I am working on, it also draws on some aspects of tort law, your comments are always welcome:
"There is an arbitrariness in defining the relevant class of risky events. In my lifetime as a driver, I stand some (fairly low) chance of killing an innocent pedestrian. Few people would argue that I should be prohibited from driving. Assume, however, that science prolongs (fit) human life forever, at least unless you are struck down by a car. My chance of killing an innocent pedestrian then would approach certainty, given that I plan to continue driving throughout an eternal life. In fact I could be expected to kill very many pedestrians. Should I then be prohibited from driving? When we make a prohibition decision, should we measure the risk of a single act of driving, or the risk of driving throughout a lifetime? Measuring the bundled risk appears to imply absurd consequences, such as banning driving for people with sufficiently long lives.
Alternatively, measuring the risk of only the single act is vulnerable to counterexamples. Imagine an involuntary game of Russian roulette with very many chambers in the gun, played very many times against me. The chance of my death from any single firing is very small, but surely we would prohibit such a game, looking at the high overall risk of the bundle. In this case we consider the bundled risk, but does this mean that we should stop immortals from driving cars?"
Addendum: I am posing this question in a framework where individual rights have some meaning. So if a given activity (however defined) crosses some threshold level of risk, vis-a-vis its victims, we will consider prohibiting it, even if the associated benefits with the activity are high. We remain with the question of how to circumscribe the activity and thus arrive at a unique measure of risk. Of course some people will view this dilemma as an argument against the idea of rights, and in favor of utilitarianism. Also, please note that this is a fabricated scenario, as philosophers are wont to do. It doesn't matter whether in reality the car will someday be superseded, accidents will cease to be deadly, that the driver is perhaps also a pedestrian, or whatever. It is a deliberately stripped down example to force us to confront how we think about compounded risks.
More on Brazil:
Since this blog is now your source for Brazilian immigrant fingerprinting news, we bring you this other tidbit, again from our correspondent David M. Rosenberg: A flight crew from American Airlines (originating in Miami) refused to submit to the fingerprinting process in São Paulo this morning. The captain allegedly made an obscene gesture to the Brazilian police officers, and the crew was detained and brought to a police station to give a statement. Apparently, the crew will have to return to the US. There was no problem with the passengers on the flight. As of now there is no word from American Airlines, and it is not clear whether or not this incident will impact on the ability of the crew to gain future entrance into Brazil. Pretty unprofessional behavior, it seems to me. If you want to fly into a country -- especially as a professional part of whose income flows from interacting with the country -- you should follow its immigration laws, especially ones that impose such relatively minor burdens.
Is this what conservatism has come to?
President Bush is planning a new pro-marriage initiative, read The New York Times account. The centerpiece calls for the government to provide $1.5 billion in training "to help couples develop interpersonal skills that sustain "healthy marriages."" In other words, subsidized marriage education and counseling. One bureaucrat from HHS assures us that "All services will be voluntary." The Times speculates whether this is not a sop to conservatives, given that Bush may not offer a strong and full push for a constitutional amendment to ban gay marriage.
Information Requests:
Sometimes, when I ask readers for information about a given topic, I get reader emails beginning with "I'm sure many people have mentioned X ..." Sometimes that's true, in which case I will update my post to note that I now now about "X". Often, however, the reader who sends this is the only reader who informed me about "X," and "X" is very interesting So, don't hesitate to respond to a query from me or another blogger; information that you think is obvious or well-known may not be.
Suicide Murder in Israel:
Two interesting things about today's suicide murder in Israel. First, the bombing occurred at a checkpoint for Palestinian workers. While Israel is blamed for "immiserating" the Palestinians by cutting off their jobs, whenever Israel tries to let more Palestinians work, Hamas, Jihad, et al. intentionally target the checkpoints, to force Israel to crack down and ensure that Paletinians stay poor and miserable, and thus more likely to support terror! So much for Hamas being a "social welfare" organization, as France has argued. Second, the bomber would have been caught but for Israeli squeamishness about having male soldiers inspect a Muslim woman. Muslims demand respect for their sensibilities, but how often do they condemn their fellow Muslims when they abuse Western sensitivities to their concerrns to commit suicide murders?
Prescient Warnings about Civil Rights Legislation:
It is well-known that opponents of the 1964 Civil Rights Act warned that it would lead to racial preferences, and that these concerns were pooh-poohed by proponents. I am looking for other examples of warnings by opponents of the Act labled "extremist" or "hysterical" at the time that have been vindicated, whether in the '64 Civil Rights Act itself or in subsequent legislation. I'm not looking for "States Rights" arguments, but arguments that, for example, the public accommodations provisions would eventually lead to the regulation of private clubs, that the list of groups covered by civil rights laws would eventually expand dramatically, etc. Is there a good book or article describing the arguments made against the Act? (I recognize that some of these arguments were insincere, as they were made by folks with a segregationist agenda, but that does not mean that they turned out not to be prescient). A good example of what I'm looking for is Eugene's now-famous post on how opponents of the ERA warned in the '70s that it would eventually lead to court-imposed gay marriage.
Tuesday, January 13, 2004
The Other Middle Eastern Refugees:
Interesting piece in Ha'aretz. My girlfriend's parents and their families were among the thousands o Jews forced to flee Iraq, leaving their (substantial) property behind, 50+ years ago. Her late mother left to her children the deed to the land her father bought for her in Baghdad when she was born.
Silence in school:
I'm not sure that "completely bann[ing] all talking [in an elementary school] before and between classes and at lunch time" is a First Amendment violation, as Tim Sandefur suggests. But it seems to me to be a mighty silly and unworkable rule, likely only to teach students to have contempt for rules, and for school.
Almost fair:
Dahlia Lithwhick's opinion piece in Slate on today's Supreme Court oral arguments in a disability accommodation case has a pretty striking item: You'd have to look long and hard to find a civil rights plaintiff more deserving of empathy than George Lane. But then you'd also have to look long and hard to find five Supreme Court justices capable of manifesting empathy. Today is a triumph of mean-spirited grousing at the high court, all sung to the dolorous tune of "What do those handicapped people want from us anyway?" . . .
What [a sovereign immunity case, under the Court's current sovereign immunity / 14th Amendment jurisprudence] always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated. The court still worries about racial discrimination, and Chief Justice Rehnquist was won over by the plight of working mothers in last year's big sovereign immunity case -- Nevada Department of Human Resources v. Hibbs. But, sadly, the court just doesn't seem to care very much about the disabled. It's almost fair to say that they find the disabled annoying -- at least that is the tenor of today's session. . . . Well, here's a tip: When it's "almost fair" to say something, that's a good signal that it's actually not fair to say it. (Otherwise, it would be "actually fair," rather than "almost fair.") No, there's no evidence that the Justices find the disabled annoying. Rather, they're trying to figure out how the longstanding state sovereign immunity principles interact with disabled rights statutes; one can answer that the sovereign immunity principles (which, incidentally, I don't like either) can prevail without being annoyed by the group that the statute is trying to protect. Another bit of evidence that the column is at most "almost fair" comes in the column's discussion of the distinction between intentional discrimination and failure to accommodate: Scalia starts: "It depends on what's meant by discrimination. The handicapped not getting an elevator may not be a constitutional violation." [Deputy Solicitor General Paul] Clement replies that when the handicapped can't vote, that's a fundamental right being burdened, and it should trigger strict judicial scrutiny. Rehnquist says that voting discrimination means "a person is not allowed to vote, as opposed to not being facilitated in being allowed to vote."
Clement sees no difference. Nor do I. When groups are systematically barred from the polls, you have a constitutional problem whether you call it a denial or a refusal to facilitate. But Scalia contends that being "turned away because there is no elevator is not a constitutional violation." He adds, "An inaccessible voting place means nothing at all. It merely means the state didn't go out of its way to accommodate the handicapped."
You know, just like the states didn't go out of their way to integrate schools. Who are these people? Actually, school segregation is an excellent example in Scalia's favor. "The states didn't go out of their way to integrate schools" is simply a mischaracterization of what many states did -- many states did explicitly, by law, segregate schools. The uncontroversial examples of unconstitutional segregation come precisely from cases of explicit legal discrimination based on race. When you get to situations where the states really simply "didn't go out of their way to integrate schools" -- for instance, when there is residential segregation (not mandated by state law), so that some schools end up being mostly black, others mostly Hispanic, and others mostly white -- the situation is much more controversial. Under current federal constitutional law, a state does not have a constitutional duty to "go out of [its] way to integrate" such schools. Some people argue that the state should have such a duty, either constitutional or statutory. But that's a much more controversial question -- certainly not the sort of issue one can just contemptuously dismiss with "Who are these people?" Even opinion pieces about the Court work rather better, I think, when they take care with their analogies, and don't haughtily condemn plausible distinctions with suggestions that all decent people must surely share the writer's perspective. And when they strive to be actually fair, not almost fair. UPDATE: Dahlia Lithwick, whose work I have often much admired, and whom I like a great deal personally, e-mails me with this: One of the drawbacks to not having cameras at the court is that I can only assert, without good proof, that some of the justices (including Scalia) were so full of contempt for the disabled yesterday that it was shocking. Maybe the transcript will capture some of this, likely not.
You and I have disagreed before about questions of nuance and tone. They are tough to measure empirically. Part of my job is to report those things -- subjective as they may seem. This is a fair point -- Lithwick was there, and I wasn't. I am always quite skeptical when people infer others' attitudes from tones of voice or facial expression. My sense is that such subjective inferences often reflect more the inferrer's attitudes towards the other person, rather than the other person's attitudes towards the subject. If I think that X is clearly in the right, then skepticism towards X's legal position -- especially expressed in an impassioned legal argument -- can often be misperceived by me as contempt towards X. But perhaps my skepticism is overstated, at least in this case; I leave it to readers to decide. FURTHER UPDATE: Another reader, who was also there, says he had a similar reaction to Lithwick's, though as to only a couple of the Justices, not the Court generally. I stand by my skepticism, but I wanted to pass this along because it does strengthen Lithwick's argument.
Hold My Buns!
Drudge links to a report noting that bowing to the low-carb craze, Burger King will now offer bunless Whoppers, for the same price as Whoppers with buns. How is this different then in the past (1) ordering the Whopper, but stating, "no bread please"; or (2) ordering the Whopper, and throwing the bread away, feeding it to birds, etc.? Next thing you know, automakers will "offer" cars without tires for the same price as cars with tires. New advertising slogan for Burger King: "Offering you less, for the same price!"
Reading recommendation:
Curiously enough, Josh Chafetz and I both finished Iain Pears' The Dream of Scipio yesterday. It's quite strikingly different from Pears' earlier An Instance of the Fingerpost -- more philosophical, more emotionally intense and absorbing and ultimately draining, and more romantic. Instance is fun; I'd have a hard time saying that about Scipio. As someone drawn to intellectual disciplines of commentaries-upon-commentaries, I did enjoy Scipio's device of using a text written in the earliest plotline as a key part of the two set later; but I think Fingerpost's related literary device (interlocking plots told from different character's perspectives) was ultimately more successful. I think I'd finally say that Scipio doesn't fulfill its ambitions quite as well as Fingerpost fulfills its ambitions-- but that Scipio's ambitions reach higher. I highly recommend both. I really ought to have blogged about Instance (one of my favorite novels) before when people were talking about Quicksilver-- Instance is very different from Quicksilver, but those who enjoyed the latter might well enjoy seeing a different historical-fiction take on some of the same characters, in a different literary genre (murder mystery/ political intrigue) and style (much as I love Neal Stephenson, Instance is vastly superior to Quicksilver as a piece of literature). John Locke, for one, comes across rather differently in the two books.
The Cubs' intellectual property claims:
ESPN reports: The Chicago Cubs and owners of the famous building-top seats have come to a 20-year agreement that would require the owners to pay the team millions of dollars each year, the Chicago Tribune reported in Monday's editions.
The owners of 11 buildings will pay the Cubs 17 percent of their gross revenue, which, with approximately 1,700 rooftop seats, could cost owners more than $2 million a year, Alderman Thomas Tunney of the 44th Ward told The Tribune.
The settlement stems from a December 2002 lawsuit brought against the owners by the Cubs after the team's plans to expand the bleacher sections in Wrigley Field failed. The team accused the owners of stealing the team's product, copyright infringement and unjust enrichment at the Cubs' expense.
Owners of two of the buildings have not agreed to the settlement and plan to fight the agreement in court. . . . The two dissenting owners are in the right on the copyright issue, I think, and ought to win on that if they fight it. But the "unjust enrichment" claim is much closer. Copyright: The Cubs' copyright infringement claim is, I think, nearly frivolous. First, it seems likely that a sports event is not a copyrightable work. The broadcast of the event may be, because of creative decisions involved in how to film the event. But the action itself is probably not, because it's not creative expression. As the U.S. Court of Appeals for the Second Circuit held several years ago as to basketball games, In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. ? 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works." The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.
Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.
What "authorship" there is in a sports event, moreover, must be open to copying by competitors if fans are to be attracted. If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship -- figure skating, gymnastics, and, some would uncharitably say, professional wrestling -- a performer who conceives and executes a particularly graceful and difficult -- or, in the case of wrestling, seemingly painful -- acrobatic feat cannot copyright it without impairing the underlying competition in the future. A claim of being the only athlete to perform a feat doesn't mean much if no one else is allowed to try.
For many of these reasons, Nimmer on Copyright concludes that the "[f]ar more reasonable" position is that athletic events are not copyrightable. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright ? 2.09[F] at 2-170.1 (1996). Nimmer notes that, among other problems, the number of joint copyright owners would arguably include the league, the teams, the athletes, umpires, stadium workers and even fans, who all contribute to the "work."
Concededly, caselaw is scarce on the issue of whether organized events themselves are copyrightable, but what there is indicates that they are not. See Prod. Contractors, Inc. v. WGN Continental Broad. Co. , 622 F. Supp. 1500 (N.D. Ill. 1985) (Christmas parade is not a work of authorship entitled to copyright protection). In claiming a copyright in the underlying games, the NBA relied in part on a footnote in Baltimore Orioles, Inc. v. Major League Baseball Player's Assn. , 805 F.2d 663, 669 n.7 (7th Cir. 1986), cert. denied , 480 U.S. 941 (1987), which stated that the "[p]layers' performances" contain the "modest creativity required for copyrightability." However, the court went on to state, "Moreover, even if the [p]layers' performances were not sufficiently creative, the [p]layers agree that the cameramen and director contribute creative labor to the telecasts." Id. This last sentence indicates that the court was considering the copyrightability of telecasts -- not the underlying games, which obviously can be played without cameras. The Baltimore Orioles case that the Second Circuit cites does indeed suggest the contrary; but the Second Circuit is probably right in dismissing this as tentative and nonbinding dictum. But more importantly, even if a game is copyrightable, public viewing of the game doesn't violate any of the copyright owner's exclusive rights under the Copyright Act. It's not a reproduction. It's not a preparation of a derivative work. It's not distribution of copies of the work. It's not a public display of a copy of the work. And it's not a separate public performance of the work -- the performance is taking place on the field, with the copyright owner's authorization, and letting people onto your roof to see it isn't a separate performance. It strikes me as an open-and-shut copyright case, so solid that it should lead to the building owners not just winning on the copyright issue if the case comes to court, but also getting awarded attorney fees on the copyright portion of the case. Misappropriation: The harder question is whether the building owners' sale of viewing seats constitutes "misappropriation," a separate state-law tort, which does sometimes prevent people from supposedly unjustly enriching themselves by free-riding off the investment of others. In Illinois, the boundaries of the tort haven't been well-defined. The general principle is that courts must consider whether "the plaintiff's pecuniary reward for producing its intangible product would be severely reduced if other competitors could avoid production costs" by merely free-riding on the plaintiff's work, but at the same time keep in mind "that freedom to imitate and duplicate is vital to our free market economy." Board of Trade of City of Chicago v. Dow Jones & Co., Inc., 456 N.E.2d 84 (Ill. 1983). But naturally, these considerations are almost always in tension with each other. In this case, neither factor is very strong: The building owners' actions aren't likely to dramatically undermine the Cubs' revenue, so the plaintiffs' misappropriation case isn't that strong; but the building owners aren't really being that creative in their imitation and duplication, either, so the defendants' defense isn't that strong, either. The Cubs can argue that it's unfair to let neighbors free-ride off the Cubs investment. The building owners can argue that they have traditional rights as property owners to let people onto their property to watch whatever is visible from the property. It's therefore quite hard to predict just how the courts will decide the misappropriation claim. UPDATE: Reader Alec McAusland suggests that the building owners may have reasons for settling beyond the fear of legal liability. Here's a Chicago Tribune article: Also, said one rooftop source, the Cubs have agreed not to install windscreens blocking rooftop views as they did during the 2002 season.
Deception scandal at USA Today, involving foreign correspondent and Pulitzer Prize finalist Jack Kelley. Howard Kurtz reports in the Washington Post; here's the USA Today story about this; and The Zionist Conspiracy argues that a Kelley story that painted a highly unflattering picture of Israeli settlers was fabricated ( USA Today says that "confirming the Jewish settlers story appears to be impossible"). I'm not up on all the details, but it seems like quite a problem. Thanks to Carolyn Stern for the pointer. UPDATE: Reader Andrew Lazarus writes: The Hebron settlers are absolutely awful (even in times of quiet they go on rampages against Arabs that are prosecuted in the most leisurely manner), but the Kelley story looks FAKE to me.
For security reasons (I assume), taxis in Israel are color coded. Israeli taxis are WHITE. Palestinian (West Bank) taxis are YELLOW. Settlers would never fire on a white taxi without at least investigating the occupants. I'm amazed even a confabulating journalist missed the color codes; I noticed it literally on the taxi ride from the airport on my first arrival.
Israel also used to color-code license plates even within the country, with Jews and Israeli-citizen Arabs getting different colors. This was dropped in the mid-1960s for a system where Arabs got plates with distinctive numbers. I believe this, too, was abolished, in the 1990s, but can still be seen on legacy plates. Note that I have no independent knowledge on this subject (either on whether Hebron settlers are absolutely awful, or on the taxi color-coding item), but I thought it was passing along as one data point. FURTHER UPDATE: Joe Schick, who posted the Zionist Conspiracy post cited above, also writes: Further to the point made by Andrew Lazarus about the color of taxis, Kelley's reference to Highway 60 as the place where the shootings occurred is very suspect. That's the main road in the West Bank, going from the Ramallah area in the north to the Hebron area in the south. There are a number of IDF checkpoints on the highway and many Palestinians drive through, but USA Today could not find a single Israeli soldier or Arab civilian who witnessed anything resembling Kelley's report.
Creative cities: do they grow more rapidly?
Richard Florida, a Carnegie Mellon professor, has been arguing that cities must become trendy places to compete in the new economy. His book The Rise of the Creative Class has been a big hit. In his view a city should try to attract gays, bohemians, and ethnic minorities, all to lure creative workers. Those workers will in turn start innovative, fast-growing companies. To get entrepreneurial residents, Florida claims that cities should spend heavily on cultural amenities and adopt a progressive social stance. This sounds intriguing but unfortunately it does not fit the facts. Read this devastating review. Here is one excerpt: "The professor's creative index—a composite of his other indexes—lists San Francisco, Austin, Houston, and San Diego among the top ten [creative cities]. His bottom ten include New Orleans, Las Vegas, Memphis, and Oklahoma City, which he says are "stuck in paradigms of old economic development" and are losing their "economic dynamism" to his winners. So you'd expect his winners to be big job producers. Yet since 1993, cities that score the best on Florida's analysis have actually grown no faster than the overall U.S. jobs economy, increasing their employment base by only slightly more than 17 percent. Florida's indexes, in fact, are such poor predictors of economic performance that his top cities haven't even outperformed his bottom ones. Led by big percentage gains in Las Vegas (the fastest-growing local economy in the nation) as well as in Oklahoma City and Memphis, Florida's ten least creative cities turn out to be jobs powerhouses, adding more than 19 percent to their job totals since 1993—faster growth even than the national economy." Nor do these same "creative cities" generate more small-size firms or attract more professionals. Read the whole critique, it is an object lesson in debunking pseudoscience. It also turns out that Detroit, a favorite city of mine, has been remarkably entrepreneurial of late.
Monday, January 12, 2004
Backing Up My Assertion:
Several readers questioned whether Jews really give half of all money raised by the Democratic Party. I've seen this figure quoted for years, and it seems well-accepted. Here, for example, is the Washington Post in December: "Jews provided at least half the money donated to the DNC in the 1998 and 2000 election cycles". Another Post article, however, qualifies this by noting this refers solely to donations by individual donors, and does not take into account corporate and labor union donations, which have been, to say the least, substantial. Some of the readers who wrote to me fear that mentioning such figures will stoke anti-Semitism. In my view, the high levels of Jewish participation in political activism is nothing to be ashamed of (though I'm not thrilled with many of the directions that activism tends to take), and, indeed, should be a badge of honor. As full, first-class citizens of the U.S., Jewish individuals have just as much right to donate to candidates as anyone else--they aren't doing so as part of a shadowy Jewish conspiracy, but as publicly-committed Democrats or Republicans who are also Jewish. Good for them!
Interesting Findings from the American Jewish Committee Survey of American Jewish Opinion
1. Do you approve or disapprove of the way President George W. Bush is handling the U.S. campaign against terrorism? Approve 41 Disapprove 54 Not sure 5 Comment: This is ambiguous, as I suspect a fair percentage of Jews think the president has not been vigorous enough in opposing terrorism, especially Palestinian terrorism. 19. I would like you to rate your feelings toward some countries, institutions and people, with one hundred meaning a very warm, favorable feeling, zero meaning a very cold, unfavorable feeling, and fifty meaning not particularly warm or cold. You can use any number from zero to one hundred. How would you rate your feelings toward [ ]. Mean Score a. Iran 27 b. The European Union 54 c. Saudi Arabia 29 d. Germany 45 e. Jordan 43 f. Egypt 45 g. Great Britain 77 h. Poland 56 i. The Palestinians 21 j. France 33 k. China 44 l. Syria 24 m. Turkey 52 n. India 55 o. The Vatican 51 p. Italy 62 q. Spain 62 r. Russia 51 s. South Africa 53 Comment: OK, France is bad, but worse than Egypt, whose official media engages in blatant anti-Semitism? 22. I'm going to read you a list of political views that people might hold. They are arranged from extremely liberal to extremely conservative. Where would you place yourself on this scale? Extremely liberal 4 Liberal 19 Slightly liberal 17 Moderate, middle of the road 33 Slightly conservative 13 Conservative 12 Extremely conservative 2 Not sure 1 Comment: Judging from experience, I find it hard to believe that liberal Jews outnumber conservatives only 40% to 27%, but perhaps that's because I've been in and around academia too long. 25. Do you think the number of immigrants from foreign countries who are permitted to come to the United States to live should be increased a lot, increased a little, left the same as it is now, decreased a little, or decreased a lot? Increased a lot 4 Increased a little 11 Left the same as it is now 43 Decreased a little 21 Decreased a lot 20 Not sure 2 Comment: This is surprising, as Jews have traditionally been pro-immigration. Perhaps 9/11 changed many minds; it certainly has caused me to rethink my views on immigration. 31. Which one of the following qualities do you consider most important to your Jewish identity? Being part of the Jewish people 41 Religious observance 16 Support for Israel 6 A commitment to social justice 19 Something else 17 Not sure 2 Comment: The philosophy of Reconstructionism, which focuses on Judaism as an evolving religious civilization with an emphasis on peoplehood, has apparently won a smashing victory in the battle to define Jewish identity, soundly beating both religious observance and "a commitment to social justice." 37. Looking ahead over the next several years, do you think that anti-Semitism in the United States will increase greatly, increase somewhat, remain the same, decrease somewhat, or decrease greatly? Increase greatly 10 Increase somewhat 39 Remain the same 42 Decrease somewhat 7 Decrease greatly 1 Not sure 1 Comment: Anti-Semitism has been steadily decreasing the U.S. for sixty years. But being a Jew often means being a bit paranoid, and for good historical reason. 38. In your opinion, what proportion of each of the following groups in the United States is anti-Semitic-most, many, some, very few, or none? Most Many Some Very few None Not sure a. Asians 2 3 41 39 9 6 b. Muslims 28 27 33 8 1 3 c. Hispanics 3 6 51 29 6 5 d. Blacks 6 15 55 18 4 3 e. The Religious Right 20 21 37 14 3 6 f. Catholics 5 9 59 21 3 3 g. Mainstream Protestants 4 8 57 24 3 4 Comment: Surveys I've seen show the "religious right" to be no more anti-Semitic than Americans generally, and certainly nothing approaching the likely figures for American Muslims (many of whom recently immigrated from countries where anti-Semitism is rampant) or, for that matter, American blacks or Hispanics, who have higher than average levels of anti-Semitism (I know I should find the relevant stats to link to, but I can't right now; anyone care to help?). I'd wager, however, that only a small percentage of Jews actually know anyone in the religious right, and therefore are susceptible to both stereotypes and the constant fundraising letters from People for the American Way etc. Moreover, since a disproportionate percentage of American Jews are very liberal, they tend to overestimate the "evils" of any conservative grouping. Interesting that the survey didn't ask about the "far left", which seems far more anti-Semitic than the religious right. You can read the full study here. UPDATE: Reader Ronald Iltis provides a link to this 2002 ADL study of anti-Semitism in America, which confirms that both African-Americans and Hispanic Americans are far more anti-Semitic than are white Americans, and that "religion is not a driver of anti-Semitic propensities in the United States," nor, contrary to those who see Klansmen lurking in every conservative organization is "political ideology."
Volkswagen Phaeton drivers beware: Here is the scoop on the original Phaeton: The son of the sun-god Helios. When Phaeton ("the shining one") finally learned who his father was, he went east to meet him. He induced his father to allow him to drive the chariot of the sun across the heavens for one day. The horses, feeling their reins held by a weaker hand, ran wildly out of their course and came close to the earth, threatening to burn it. Zeus noticed the danger and with a thunderbolt he destroyed Phaeton. He fell down into the legendary river Eridanus where he was found by the river nymphs who mourned him and buried him. The tears of these nymphs turned into amber. For the Ethiopians however it was already too late: they were scorched by the heat and their skins had turned black. Not the best name for a car, eh? At least you should be sure never to lend it to your son. (Yes, I know that phaeton is also the name of a sort of carriage, and also a term for a touring car.)
Brazil fingerprinting decision:
Reader David M. Rosenberg reports: A judge in Rio de Janeiro has accepted the petition of the city to suspend the registration of photos and fingerprints of US tourists. For the time being, the decision only has effect in Rio (I'm not sure if it refers to the entire state of Rio de Janeiro, or just the municipality of the same name), but could be extended to the entire country. According to the press report I just read, the judge's opinion was as follows:"If the United States of America has reasons to adopt the measures being questioned by the Federal Public Minister, then Brazil, without a plausible motive, seeing that the fear of terrorist attacks, happily, is not a part of [our] daily life, cannot do the same solely based on reciprocity because it would cause losses of millions of dollars to the national economy, and not just to the petitioner, by way of the flight of tourists confronted with restrictions on entering [Brazil] who will seek other destinations, and, consequently, the loss of the flow of North American tourists and the incalculable amount of money they would spend here." UPDATE: David M. Rosenberg reports further: The government of Brazil is now arguing that today's decision by the judge in Rio should not take effect due to the publication of an executive decision (authorized by the president of the Republic) mandating that the collection of photos and fingerprints for Americans continue to take place throughout the entire country of Brazil. A working group has been formed to study "rules for the control of the entrance of foreigners" that is mandated to conclude its work and make a report within 30 days. The executive order requires that the Federal Police (roughly equivalent to a combination of our FBI and ICE) continue to archive the photos and fingerprints while this working group is in existence.
According to the Ministry of Justice, today's decision by the judge in Rio didn't prohibit the collection of the photos and fingerprints; it just said that the Federal Police weren't obligated to collect this data. The publication of the executive order makes this obligation explicit. At this point I don't have a copy of the judge's complete decision (I'll look for it). The solicitor who made the original petition for the data collection has stated that due to the executive order, the Rio judge's decision is moot, however I haven't found a response from the city of Rio de Janeiro which brought the [successful?] action to have the data collection suspended.
Both judges (the one in Matto Grosso who ordered the collection, and the one in Rio who ordered it suspended) are federal judges. At this point, I think you will need somebody with some Brazilian legal training to help sort out the issues here, but it has clearly entered the realm of politics.
What should you eat?
Hasn't all this talk about the Atkins diet made you suspicious? For years it was neglected and now many scientists are saying it works. Have there been so many big changes in our understanding in such a short time? The Atkins idea, after all, dates from the nineteenth century if not earlier. And surely it is easy to observe which diets work. I have read that most models (i.e., the private sector!) use some form of the low-carb diet. Are they so far ahead of scientists? Michael at www.2blowhards.com asks some similar questions. Like Chris Mooney, I tend to think the problem is usually not enough science. So I was hearted by this month's (February) Discover magazine (not yet on-line), which offers an extensive treatment of the latest scientific knowledge on dieting. The article, by Brad Lemley, is called "What Does Science Say You Should Eat?" Many of the results are based on an extensive Harvard study, started in 1976. So what are we told? 1. White flour and sucrose, in large quantities, are bad for you. 2. The Mediterranean diet is very healthy. Whole grain foods and olive oils are good for you. 3. Eat lots of vegetables and seafood. 4. Avoid margarine, deep fried foods, and packaged baked goods. If you coop up a pig and feed it grains, it will grow fat. 5. Saturated fat is indeed bad for you, contrary to some revisionist accounts. 6. Eggs are fine but soy may not be. Very little of this surprises me, but I am happy to see it supported by some real scientific evidence.
Canadian investigation of Muslim newspaper for anti-Semitic speech:
From the Toronto Star: Copies of a B.C. Muslim newspaper have been turned over to the province's hate crimes unit after it published an article accusing "the Jews" of everything from starting both world wars to staging the Sept. 11 terrorist attacks.
The Canadian Jewish Congress made a complaint seeking a criminal investigation into what it called "a virulently anti-Semitic article" published in The Miracle, a weekly newspaper distributed in Vancouver-area mosques.
The edition featuring the page-long list of misdeeds it claims were committed by Jews also includes a column by Liberal Senator Mobina Jaffer and an advertisement by local Liberal MP Joe Peschisolido.
"It isn't Arabs lying about and guilt-tripping us with 'the Holocaust' -- it is Jews," the article reads. "It wasn't Arabs who caused the Great Depression -- it was Jews. It wasn't Arabs who started WWI (the First World War) -- it was Jews. It wasn't Arabs who started WWII (the Second World War) -- it was Jews."
The Dec. 19 article, by Idaho resident Edgar Steele, blames Jews for 81 other items, ranging from pedophilia and organized crime to "race-mixing," militant feminism and "forcing us to allow homosexuals to lead Boy Scout troops."
The Miracle, published in Delta, has a circulation of about 2,500. Its editorial page claims it is dedicated to Islamic brotherhood and bringing "harmony amongst all Muslim and other communities."
Chief editor Nusrat Hussain said he had no regrets about publishing Steele's article.
"We try to keep freedom of speech and not necessarily that we agree with the article and that is what Canada is about," he said.
"We certainly did not publish it with intentions of hate crime. But if the Jewish congress considers it that, then of course it is their right to think that way."
Hussain said the newspaper published the article because the editors found it interesting. . . . Steele is apparently not just an anti-Semite but also an anti-black racist; and my guess would be that he'd have relatively little love for Middle Easterners, too (and certainly not for the tens of millions of Muslims in black Africa, or for that matter for the east Asian Muslims). But, hey, hatred makes strange bedfellows. Also see this story for more information.
Just for Fun:
Other than the Iowa Electronic Market, is there a way to legally bet from outside Vegas on who will win the Democratic nomination? My own suspicion is that contrary to the odds I've seen, there is a more than 15% chance that one of the "major" Democratic contenders other than Clark and Dean will get the nomination.
UPDATE: Several readers have referred me to tradesports.com, an Irish outfit. Any other suggestions?
Dumb Wedding:
Can there be a dumber reason to rush a wedding than wanting to be able to cast an inconsequential vote (as all individual votes are) in the Iowa caucuses (via Opinionjournal)? And will the couple divorce so the new bride can go back home and vote in the Illinois primary, too?
Tobacco Deal May Violate Sherman Act:
The Second Circuit has reinstated a lawsuit arguing that the multistate tobacco settlement violates federal antitrust law. When the settlement was announced, my entrepreneurial side thought about starting a new cigarette brand called "Death Sticks," and, when states tried to force my company to pay into a fund for the health problems caused by my unworthy competitors' cigarettes, to sue the heck out them, for both antitrust and constitutional violations. Maybe I should have.
Bad News for the Dems:
From the AP: U.S. Jews would overwhelmingly support any major Democratic candidate over President Bush if the election were held today, according to the 2004 Annual Survey of American Jewish Opinion.
Joe Lieberman, the only Jewish candidate, would defeat Republican Bush by the largest margin, 71 percent to 24 percent, the poll found.
In one-on-one matchups with the president, Howard Dean, Wesley Clark, John Kerry and Richard Gephardt would each receive about 60 percent of the Jewish vote, compared to about 30 percent for Bush, according to the survey conducted for the American Jewish Committee and released Monday. 30% would be about double Bush's total in 2000 among Jews (the article says that only 66% of those surveyed supported Gore in 2000, but retrospective polling is notoriously unreliable, polls done at the time showed 80%+ figures), and does not account for the 10% undecided, nor for the fact that some of Dean's bizarre statements re Iraq have not yet seeped into public consciousness. Also, the articles notes a "slight" increase in Jewish identification as Republicans from 9 to 16%. That's not slight, that's almost double! Jews are only about 2% of the population, but are older and vote more than other groups, so they are more like 4% of the electorate, and are concentrated in swing states. Moreover, Jews are responsible for giving about half of the money the Democrats raise (and 15-20% of Republican cash). This poll has to be ringing some alarm bells at Democratic headquarters in Washington.
Rats!
Well, the Supreme Court refused to hear the McFarlane v. Twist case (in which I wrote the amicus brief). Too bad, but not unexpected: The Supreme Court agrees to hear only about 1% of the cases that it's asked to hear each year; the odds were always against us, even though I do think the case is certworthy. Still, it's an interesting issue, on which there's a real disagreement among lower courts. I hope the Supreme Court gets to revisit soon.
Now Shipping: Restoring the Lost Constitution:
It looks like Amazon is now (free) shipping my new book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton), though the formal publication date is February 1st. My book tour starts next week in DC (Georgetown, Caltholic, George Mason & George Washington), and next Monday I will start posting weekly updates of the time and location of speaking appearances. Here is the jacket cover: 
Israel and copyright law:
Best of the Web writes, linking to this article: "Israeli officials have drafted a copyright bill that would halt compensation to American artists and their record companies when their songs are played on Israeli radio stations and in Israeli clubs," the Jerusalem Post reports:Other artists, Israeli and foreign, would continue to receive payment under current practices, sources in Washington familiar with the bill told The Jerusalem Post. . . .
Israel seems to be considering excluding US artists and companies from payment, since officials believe only artists from countries which are party to the Rome Convention--a 1961 copyright treaty that grants protection to performers, record producers, and broadcasting organizations--should be compensated.
While 76 countries, including Israel, are party to the convention, the US is not. Israel became a member in 2002.
The bill, if passed, could anger the US, which has been sharply critical in recent years of Israel's efforts to combat illegal copying of copyrighted and trademarked items. In May, the US rewarded Israel for improved police efforts in the area by removing it from its list of worst copyright pirates. Israel, however, remains on a watch list. Such an attempted theft is an outrage, especially coming from a country to which America has been such a steadfast friend. It's also stupid since, unlike many other copyright scofflaws, Israel actually has an advanced, knowledge-based economy that produces lots of intellectual property that Jerusalem would presumably like America to protect. It seems to me, though, that Israel is not behaving badly here -- in fact, it's only threatening to do to American performers what American law already does for all performers. Under American law, performers are not paid each time their song is played on normal radio or on a CD player in a bar, though the composers and lyricists are. An example: Peter Gabriel (the performer) records his version of Suzanne, which was written by Leonard Cohen (the composer and lyricist). When a radio station plays the song in the U.S., or when a bar plays it on CD, Cohen is paid, but Gabriel isn't. (When a record company makes copies of the song, both Cohen and Gabriel are paid, not when someone merely performs the song.) Unfair? Illogical? Maybe -- but for historical reasons, that's the law. Under Israeli law, performers and composers are apparently both paid each time their song is played. (I'm not an expert on Israeli law, but this site and the Jerusalem Post article so suggest.) So Israel now gives all performers, American and otherwise, more rights than American law gives all performers. But the Israelis, upset that America doesn't give Israeli performers these rights (the Israelis don't care what America gives others), apparently want to play tit-for-tat, and put American performers in Israel in the same position as Israeli performers are in America. (I don't know where to find an English-language version of the proposed Israeli statute, but I'm pretty sure that it wouldn't affect the rights of composers, since the Jerusalem Post article refers to "performers," and to "artists," which usually means performers.) If I'm right, then the Israelis aren't engaged in "attempted theft," and aren't being "copyright scofflaws," under America's own rules. Our law doesn't believe in giving performers rights to payment when their recordings are played. We can't call the Israelis thieves or scofflaws for taking exactly the same view with regard to our performers. This is a pretty counterintuitive point; I don't fault the Best of the Web editor for not knowing this nicety of American copyright law, especially since the Jerusalem Post article doesn't explicitly note this distinction, either. But I did want to set matters straight (again, assuming my understanding of the Israeli proposal is right), and to keep the Israel for being blamed for doing to Americans what we already do to everyone, Americans, Israelis, or anyone else. OVERSIMPLIFICATION NOTES: (1) When I say "X must pay Y," sometimes I mean that X is required by law simply to pay Y, and sometimes that X is required to get a license from Y, which usually means he'll have to pay Y. Sometimes permission is needed, and sometimes payment is itself enough; I'm not going to get into this here. (2) When I say "pay performers" or "pay composers," that may often end up meaning paying those companies to which the performers or composers sold their copyright. ANOTHER NOTE: (3) You might wonder how composers can be efficiently paid whenever their songs are played (or how performers can be paid in those countries that mandate payment to perfoerms). The answer is the collection societies, such as ASCAP and BMI, from which radio stations, restaurants, and other businesses can buy blanket licenses that cover the works of thousands of composers; the societies then split the net revenues among the various composers, according to a formula that supposedly relates to the composers' likely market share.
Sunday, January 11, 2004
Yippee!
Just finished grading my exams from last semester. What a load off my back.
Interview with Glenn Reynolds of Instapundit:
Read here, just in case you missed it. We are one of his three favorite blogs. His favorite book is Neil Stephenson's Cryptonomicon, his favorite movie is The Stunt Man, his favorite composer is Bach, I can only say great taste all around! Here is one nice excerpt: "Can you name a major moral, political or intellectual issue on which you've ever changed your mind? > Loads of them. When I was a student, I thought that public-choice theory was self-serving conservative twaddle. When I became a lawyer/lobbyist, I discovered that it was exactly right.
What philosophical thesis do you think it most important to disseminate? > That there are more things in heaven and earth than are dreamt of in philosophy.
What philosophical thesis do you think it most important to combat? > That life should conform to a philosophy." Read the whole thing.
Saturday, January 10, 2004
More things you won't find on this site,
even though these search engine queries led some people here: 10 Jan, Sat, 13:18:20 Altavista: jesus conspiracy christianity
10 Jan, Sat, 14:00:57 Google: marvel comics characters jason mutant 143
10 Jan, Sat, 15:00:04 Google: thomas friedman synagogue
10 Jan, Sat, 15:04:15 Google: washington d.c. democratic primaries toothbrushing
10 Jan, Sat, 15:31:36 Yahoo: will tylenol cause speech slur
10 Jan, Sat, 15:43:30 Google: Conservatives Club letterhead
10 Jan, Sat, 15:48:15 Google: professors' views on hamlet's mother
"Danes claim blister gas find": Danish troops have found dozens of mortar rounds buried in Iraq which initial tests show could contain blister gas, the Danish army said on Saturday local time.
The Danish army said the 36 120mm mortar rounds found on Friday had been buried for at least 10 years.
"All the instruments showed indications of the same type of chemical compound, namely blister gas," the Danish Army Operational Command said on its website, cautioning that further tests were needed.
Blister gas, such as mustard gas, an illegal weapon which former Iraqi leader Saddam Hussein said he had destroyed, was extensively used against the Iranians during the 1980 to 1988 war. . . . I'll believe it when more thorough tests are done -- in the past, supposed discoveries of chemical weapons haven't panned out -- but I pass along the news for whatever it's worth.
Adobe anti-counterfeiting feature:
Reader Jim Herd points to this Toronto Globe & Mail story: Adobe Systems Inc. acknowledged on Friday it quietly added technology to the world's best-known graphics software at the request of government regulators and international bankers to prevent consumers from making copies of the world's major currencies.
The unusual concession has angered scores of customers.
Adobe, the world's leading vendor for graphics software, said the secretive technology "would have minimal impact on honest customers." It generates a warning message when someone tries to make digital copies of some currencies.
The U.S. Federal Reserve and other organizations that worked on the technology said they could not disclose how it works and wouldn't name which other software companies have it in their products. They cited concerns that counterfeiters would try to defeat it. . . .
Adobe revealed it added the technology after a customer complained in an online support forum about mysterious behavior by the new $649 "Photoshop CS" software when opening an image of a U.S. $20 bill.
Kevin Connor, Adobe's product management director, said the company did not disclose the technology in Photoshop's instructions at the request of international bankers. He said Adobe is looking at adding the detection mechanism to its other products.
"The average consumer is never going to encounter this in their daily use," Mr. Connor said. "It just didn't seem like something meaningful to communicate."
Angry customers have flooded Adobe's Internet message boards with complaints about censorship and concerns over future restrictions on other types of images, such as copyrighted or adult material.
"I don't believe this. This shocks me," said Stephen M. Burns, president of the Photoshop users group in San Diego. "Artists don't like to be limited in what they can do with their tools. Let the U.S. government or whoever is involved deal with this, but don't take the powers of the government and place them into a commercial software package." . . .
The technology was designed recently by the Central Bank Counterfeit Deterrence Group, a consortium of 27 central banks in the United States, England, Japan, Canada and across the European Union, where there already is a formal proposal to require all software companies to include similar anti-counterfeit technology. . . .
Richard Wall, the Bank of Canada's representative to the counterfeit deterrence group . . .[,] said nearly all counterfeit currency in Canada is now created with personal computers and ink-jet printers.
"We've seen a shift of what would normally be highly skilled counterfeiters using elaborate equipment to basically counterfeiters who need to know how to use a PC," Wall said.
Some policy experts were divided on the technology.
Bruce Schneier, an expert on security and privacy, called the anti-counterfeit technology a great system. "It doesn't affect privacy," he said. "It stops the casual counterfeiter. I can't think of any ill effects."
Another security expert, Gene Spafford of Purdue University, said Adobe should have notified its customers prominently. He wondered how closely Adobe was permitted to study the technology's inner-workings to ensure it was stable and performed as advertised. . . . It's hard to fully evaluate this, because for understandable reasons Adobe isn't revealing the exact details of this feature -- we don't know for sure, then, how much of a burden it is on law-abiding customers. It's also hard to tell for sure the circumstances of how the government persuaded Adobe to do this -- whether it was simply appealing to Adobe's public-spiritedness, or whether it was using heavier-handed tactics (e.g., threatening harassment of some sort). But if all is as Adobe describes, sounds to me like a pretty decent step on Adobe's part (though it might have been better if their documentation had at least mentioned this). Counterfeiting is a serious problem, and if businesses can voluntarily do what they can to prevent crime with relatively little burden on the law-abiding, that's generally pretty good.
More on Saddam as POW:
Phil Carter agrees with my analysis from last night, and has more.
Faked survey results:
From the Washington Post: A survey a judge cited in his decision to move Scott Peterson's capital murder trial out of Modesto contained made-up information, criminal justice students who conducted the survey told a newspaper.
The 10-county survey suggested that more jurors without bias could be found in the San Francisco Bay area or Southern California than in Stanislaus County, which includes Modesto, home town of Peterson's slain wife, Laci.
But several of the California State University, Stanislaus students who compiled the report told The Modesto Bee they used a lot of fake information because it had been too hard to gather all the data properly. The students requested anonymity, the paper said. . . . For more on the story, see here and here. Some polling experts say, probably correctly, that the professor should have supervised the students better, and not required them to call on their own time and money -- not because the students' conduct is excusable, but because it was foreseeable, and the professor had a duty to the users of his survey to try to deter even inexcusable misconduct by the students. Oh, and here's something pretty annoying: One of the seven unidentified students said Friday, "I'm really disappointed in the school. They never said how Dr. Schoenthaler didn't have permission to do this and they seemed more upset with the students. It wasn't an approved assignment."
A self-described spokesperson for the unidentified students said Friday that they are worried about backlash for their whistle-blowing, but continue to stand behind the decision. Oh, how disappointing! The administration is more upset with students who cheated than with a professor who supposedly violated an internal administrative Human Subjects Review rule (1) that's aimed at protecting survey subjects, not at protecting the surveytakers or the accuracy of the survey, and (2) that would have been largely superfluous at protecting the survey subjects here, because the research project had none of the attributes (e.g., administration of medical procedures, questioning about embarrassing information, danger of revelation of private data, etc.) that justify Human Subjects Review requirements. So the professor's violation, if it was a violation (I don't know the details of how broadly applicable the CSU rule is), is a very small thing compared to the students' misconduct. And "whistle-blowing"? Does the connotation of that term really apply to the situation when someone alerts the press about his own cheating (and, incidentally, tries to avoid any punishment for it)? Does the connotation of "backlash" really cover the possibility that a cheater would be punished for his cheating? Thanks to How Appealing for the pointer.
Establishing a New Court for Terrorists:
There is a particularly thoughtful article by Thomas Powers in the current Weekly Standard ( Due Process for Terrorists? The case for a federal terrorism court) that's not what you'd expect. Powers contends that the Bush Administration should take the initiative to protect both the national security and the due process rights of detainees by proposing to Congress that it establish a new federal court in which to try accused terrorists. Though the author is clearly sympathetic to the claims that terrorism presents legal challenges that cannot be dealt adequately with in federal civilian courts, he also is skeptical of the effectiveness of military tribunals. In addition, he criticizes the Bush administration's passivity in response to criticism and court challenges, some of which are valid, and challenges the administration to protect the rights of the innocent--whether innocent victims of terror or those innocent of terrorist activities. . . . .INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.
To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. . . . As I said, this article is unusually thoughtful and presents a proposal well worth considering seriously.
Supporting Ethnic-Religion Based States:
I occasionally get email from readers suggesting that Israel is unworthy of support, or even existence, because it is an ethnic/religion-based state. So what about Poland? After World War II, Poland expelled its Germans and Ukrainians, absorbed Poles tossed out of Russia, and tolerated pogroms against the remaining Jewish population (for one source on all this, see here). A state that was ethnically and religiously diverse before WWII became homogenously ethnic Polish and Roman Catholic, and by design. No one talks about this much anymore, because there are no irredentist elements within and near Poland demanding that Poland either has no right to exist or must otherwise accommodate their corporate identities. (As an aside, this, I believe, is why Benny Morris argues that Ben-Gurion was too moderate in his War of Independence policies--I should also note that Morris, to his own surprise, came across evidence that the Arab powers ordered the Arab women and children of Palestine to evacuate the area, a point likely to be lost in the furor over his interview.) I would add that no one after WWII, when Poland engaged in "ethnic cleansing," claimed Poland had no right to exist, and that at the time of the expulsions from Poland, the local minorities were not allied with hostile outside powers surrounding Poland and seeking to liquidate Poland and massacre its population. So how about it--does Poland have the right to exist? Oh, and if Israel has no right to exist, what should replace it? Certainly not an ethnically-based Palestinian state with officially Islamist policies. Perhaps the land should be turned into a Biblically-themed amusement park?
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