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Wednesday, April 7, 2004

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?
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.
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.
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.
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.
"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.
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."
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 . . . .
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.
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.
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.
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.
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."
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.
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 6, 2004

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.
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.
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).
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).
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.
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.
Place name of the day: Archipelago of the Recherché (see here).
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.
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 5, 2004

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):




QueryMentions
InstaPundit480
talkingpointsmemo.com or (marshall w/s talking points memo)223
plural(Atrios)64 (the "plural" avoids "atrio," but includes some false positives)
DailyKos25
Volokh Conspiracy or volokh.com34


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.
Now on the Hugh Hewitt Show, talking about the Daily Kos controversy, together with John Hinderaker (Power Line).
"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.
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...
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.
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.
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." . . .
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.
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).
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 spectacular line-up. (Scroll down.) It's hard to tell from a head shot, but he looks like a pretty big guy. I'm guessing that his caffeine-to-body-weight ratio is lower than mine.
Driving While Black: Like most people, I suppose, I had thought that there was some pretty firm statistical evidence that racial profiling was going on in regard to highway stops -- i.e., that black drivers are a lot more likely, all other things being equal, to be pulled over by cops than white drivers. According to an article by Stephen Michelson in the most recent "Jurimetrics" , while racial profiling of this kind may be occurring, none of the studies purporting to demonstrates its existence actually does so. [Unfortunately, full-text of the article doesn't seem to be available online; you can reach the author at deltarex@mail.com for a reprint if you're interested]

     
It's pretty strong stuff, and a very persuasive argument. It's a little complicated -- that's part of the problem, of course, with de-bunking misuses of statistical evidence: it's almost always harder to explain what statistics actually show than to use them in a more simple-minded fashion -- but here's the gist of it: The studies thus far do demonstrate that the proportion of stopped cars that are driven by blacks is significantly higher than the proportion of cars that are driven by blacks that exceed the speed limit. That's disturbing, to be sure. But Michelson points out that, first, none of the studies measures the extent to which cops can actually perceive the race of drivers as they whiz by at 75 mph. If cops were completely unable to tell which cars are driven by blacks and which by whites, of course, whatever was accounting for this disproportionality could not, of course, be "racial profiling."

     
Second, and somewhat more complicatedly, the relevant baseline for comparison with the proportion of stopped cars with black drivers is not "the proportion of black drivers going over the speed limit," but rather "the proportion of black drivers going so far over the speed limit that they are likely to be stopped." That is: suppose (as is the case) one of the studies shows that 25% of blacks go above 55mph in a 55 mph zone, but that 45% of the stops there are of black drivers. Looks suspicious. But nobody gets stopped for driving 56 mph, or even 62 mph, in a 55 mph zone. The real question is: what proportion of black drivers are exceeding the speed limit by a significant enough amount to be likely to be pulled over -- i.e., what proportion of black drivers is going, say, 75 or higher. If 45% of the drivers going over 75 mph were black, the data's no longer so suspicious. And it turns out that all of the data collected thus far are consistent with the idea that blacks are significantly over-represented in this category -- enough to account for the higher proportion of blacks among the stopped cars.

     
At the very least, I think Michelson has conclusively demonstrated that this alternative explanation, which involves no "racial profiling," cannot be ruled out on the basis of the studies undertaken thus far -- news reports to the contrary notwithstanding. Interesting stuff.
NYT Joel Feinberg obituary: is here.

(This was a longer post until a moment ago; Blogger just ate my Feinberg story. Re-writing it will have to wait until later.)
Yeah, it's all the equipment manufacturers' fault: According to the Chicago Sun-Times,
Parents of a young woman [Rachel Corrie] who was killed by an Israeli soldier driving a Caterpillar bulldozer spoke Sunday at a rally to build support for two protests against Caterpillar this month in Chicago and Peoria. . . .

The rally was organized by the International Solidarity Movement, a Palestinian-led group of which Corrie was a member. . . .

Activists will protest the use of Caterpillar bulldozers to destroy Palestinian homes, at the company's annual stockholders meeting April 14 in Chicago. An "International Day of Action Against Caterpillar" demonstration will be staged April 23 at corporate headquarters in Peoria.

Caterpillar spokesman Benjamin Cordani said, "We don't have the legal right nor the means of policing the use of our equipment" in the Middle East.
     Of course they don't -- but that doesn't seem to matter in the weird moral universe that some of these protesters inhabit. (Thanks to reader Joseph Yosick for the pointer.)
Rockin' Book Tour Continues: This week's Rockin' Book Tour for Restoring the Lost Constitution takes me to Phoenix, Arizona.

Tuesday 4/6:
Phoenix Fed Society Lawyers (4:30pm - The Goldwater Institute)
Wednesday 4/7:
ASU (12:05 - 1:25pm, Armstrong Hall - 114)

Next week: Notre Dame on April 15th at 1:00pm.
Two Weeks: Universtity of Oregon, Washington University, Puget Sound Lawyers.
Ponnuru v. Gallagher on FMA: NRO's Ramesh Ponnuru takes on frequent NRO contributor Maggie Gallagher on Senator Hatch's proposed marriage amendment.

In a related item, AEI federalism guru Michael Greve argues that a "constitutional DOMA" (similar to the Hatch proposal) is the proper federalist approach to the gay marriage issue.
Canadian court decisions on file-sharing: It's not turning out to be so simple. Read this story. Not being a lawyer, I'm not even sure what the ruling means. I do know it favored the sued users and upset the big music companies. And this article explains why the indies are not nearly so upset.
Liberalism and Immigration: I second Tyler's excellent point, below. I once asked a very prominent "modern liberal" scholar, someone everyone reading this blog would likely have heard of, how he reconciled his support of a Social Democratic welfare state with general principles of liberalism holding that each individual has equal value, given that stringent immigration restrictions would inevitably be required to sustain the lowest echelon of society at the levels he had deemed (in print) necessary. Surely, I noted, he wouldn't argue that U.S. taxpayers were obligated to raise all Mexicans' standard of living to U.S. levels. He agreed, and initially argued that he also was against stringent immigration restrictions, lamely arguing that the affordability of massive levels of social welfare spending would not be affected by high levels of immigration. He eventually gave up on that one, acknowledging that ensuring that millions of new immigrants met his required standard of living for all Americans would be incredibly expensive. He then paused for a moment, and sheepishly said something to the effect that "maybe there is some kind of theory that we owe more of a duty to those already within our own political community." I'm with Tyler on this one; borders are arbitrary, and a political theory that strongly prefers the well-being of someone in El Paso to someone in Ciudad Juarez who wants to move to El Paso may somehow be justifiable, but it isn't liberal. I prefer the classical liberal tradition of (relatively) open borders and a (relatively) meager welfare state to a more closed Social Democratic system.

UPDATE: I'm now on a Passover blogging break, but be sure to check out Matthew Yglesias's interesting response to Tyler and my comments. I think these comments show that within the broad liberal camp, excluding Socialists, Social Democrats, and radical libertarians, there is actually broad agreement on many issues, with the main area of disagreement how good government is at providing certain public goods relative to the market, and whether certain items should be considered public goods to begin with.
Movies that defy standard categories: It is commonly noted that Hollywood prefers movies that fit into standard categories, such as "action movie," "romantic comedy," etc. If you prefer something unusual, I'll recommend Eternal Sunshine of the Spotless Mind, starring Jim Carrey (not a standard Carrey movie), Kate Winslet, and Kirsten Dunst. The core story line concerns a couple who split up and decide to erase their memories of each other. The movie raises questions of how a person can apply game theory to himself, how to make decisions when your preferences conflict, and whether Nietzsche wasn't right after all. I know that is a bit vague, but I don't want to give you any spoilers. If you like movies with a philosophical bent, go see this one. It is not a spoiler, but helpful, to know that most of the movie takes place in reverse time, from end to beginning. Don't leave your seat for popcorn, or you will end up totally baffled.
Why I am not a (modern) liberal: I often ask myself this question when I read Matthew Yglesias or Brad DeLong, two of the smartest liberals in the blogosphere. I can think of a few reasons why I am not a liberal, but here is arguably the most fundamental.

Immigration is a better anti-poverty program than is welfare spending. At the relevant margins, I would rather devote public sector resources to coping with additional immigrants rather than funding more domestic transfers.

Unlike many libertarians, I don't believe that we can do without welfare spending. Welfare, at the very least, contributes to political stability. So we need some welfare spending to keep the gears of capitalism in motion. That being said, I don't see the egalitarian case for increasing welfare spending above this basic level. People in other countries are much needier. Furthermore immigration is the best anti-poverty institution we have. A rural Mexican earns $1 a day; in Houston he earns $10 an hour (admittedly his rent goes up too). The next generation does even better, and legal immigrants do better yet. How many government programs bring that much value added?

To draw another contrast with (some) libertarians, I don't believe that additional immigration is necessarily a win-win game at all margins. More immigrants will bring some very real fiscal burdens, ask anyone in California, or any hospital near the Mexican border. So if we want more immigrants, at some point it will cost us something. Furthermore the bigger the welfare state, the more the costs of immigration are socialized in an unfair, unsustainable, and undesirable way. So immigration and the welfare state are substitutes at the relevant margin. I choose immigration.

Modern liberalism might defend itself by embracing some form of anti-cosmopolitanism. Along these lines, it could be argued that our government has a special duty to its own citizens. I take this argument seriously, but it does not convince me. First, more workable and affordable immigration will benefit the majority of Americans. Second, I take national borders to be in the final analysis morally arbitrary, even putting aside the Treaty of Guadalupe Hidalgo. Third, this case for liberalism is very different from what is usually presented. Modern liberalism would in essence be required to oppose a principle of beneficence, rather than favoring it.

So that is a significant reason why I am not a liberal. I prefer high growth, minimum domestic transfers, and a higher rate of immigration. Growth plus resource mobility is the best anti-poverty strategy we are likely to find. And this recipe is closer to classical liberalism than to modern liberalism. I might also add that the United States, through immigration, satisfies the Rawlsian formula better than does Western Europe.

Sunday, April 4, 2004

Movies: Like Randy and Howard Bashman, I liked Shattered Glass, and will reiterate my recommendation of it, and also urge you once again to see my favorite recent movie, American Splendor, which Howard also really liked.
Sunday Song Lyric: I have been on a bit of an Ella Fitzgerald kick the past week. So last Sunday I posted a Duke Ellington lyric popularized by Ella. Today, I thought I would go with Cole Porter, another masterful song writer whose work Ella helped make famous (though, like Ellington, Porter's body of work extends far beyond the songs Ella sang). There are many Ella hits from the Cole Porter Song Book from which to choose, but I settled on Every Time We Say Goodbye, definitely one of Porter's classics (and, frankly, one of his more substantive songs).
Everytime we say goodbye, I die a little,
Everytime we say goodbye, I wonder why a little,
Why the Gods above me, who must be in the know.
Think so little of me, they allow you to go.

When you're near, there's such an air of spring about it,
I can hear a lark somewhere, begin to sing about it,
There's no love song finer,
but how strange the change from major to minor,
Everytime we say goodbye.
Gaddhafi's son praises America, Israel, democracy (at least to some extent): No really, or so says this AP story:
The son of Libyan leader Moammar Gadhafi said Wednesday Arab countries should support President Bush's campaign to promote democracy in the Middle East. . . .

"Instead of shouting and criticizing the American initiative, you have to bring democracy to your countries, and then there will be no need to fear America or your people,'' said Seif al-Islam Gadhafi. "The Arabs should either change or change will be imposed on them from outside.''

Seif denied reports that he is a candidate to succeed his father, who rules Libya with little tolerance of opposition.

"Many Arab countries are now following the policy of inheriting the leadership, but there are hundreds of Libyans who are better (suited) than I,'' Seif said.

Seif even praised Israel, saying that unlike Arab countries, sons do not tend to succeed their fathers in power there.

"We don't put the appropriate person in the right place, but Israel is a democratic country,'' told the Al-Jazeera television station.

In Syria, Bashar Assad became president on the death of his father in 2000, and in Egypt, the son of President Hosni Mubarak is playing an increasing important role in affairs of state and the ruling party. . . .
Huh. I have no idea what's really going on here, but it seems noteworthy. I also have no idea how sincere he is, but that's actually not the most interesting part -- his saying this sort of thing, whether sincerely or not, is pretty important.

     Thanks to Don Kates for the pointer.
Brief Spam-Related Apology: Several readers e-mailed me with interesting reactions to my post My Name. I did not initially receive their messages while traveling because they were screened by my anti-spam program running at home. Because I was only at home for a few hours on Friday night before leaving early on Saturday morning for Las Vegas (where I am now), I did not get a chance to acknowledge or respond. Now they are on my PC at home and not here with me so I still cannot reply until after my trip to Phoenix and ASU. I do need to figure out a better system for managing my email while I am traveling, as well as a better approach to spam.

I liked using McAffee SpamKiller because it screens spam on my home PC so it does not load my Inbox while traveling. But the version I use is now overwhelmed by new spamming techniques, and the new version of SpamKiller is pretty inferior in how it operates so I uninstalled it. Norton's anti-spam program only marks spam as spam so you can send it to a folder and delete it (big deal) and only works with Outlook which I do not run while checking email while traveling. I am considering moving to a challenge-response approach, but that makes it harder to receive automated acknowledgments of on-line transactions. I use Outlook on my home PC and check my mail via HTML on the BU website when traveling. Off-line suggestions of approaches that have worked for you--including effective challenge-response programs and/or services--would be appreciated, but I may not receive them until my return home on Thursday, thanks to my current anti-spam program.
Rent Shattered Glass: I have no sympathy for deliberate serial cheating reporters, like Janet Cook or Jason Blair, especially those who have enjoyed a career of privilege. I am appalled at the life after what should be professional death that is sometimes enjoyed by those who happen also to be of the right political hew. Like Mike Barnacle, now a fixture on Boston talk radio and soon to be a columnist again. For this reason, I had no interest in seeing Shattered Glass, the film about Stephen Glass, the disgraced serial liar whose fictional writings in the New Republic included a trashing of young conservative Republican males. I fully expected it to glamorize and implicitly excuse Glass's transgressions by explaining their root causes, and that simply does not interest me. I think I am more personally irked by Glass than by Cook, Blair and Barnacle, as a subscriber to the New Republic who actually read him before his deceptions were exposed. And Glass is attempting a comeback with his novel, The Fabulist, about a lying reporter.

But as I now have a really wonderful 2.8 lb. notebook with a built in DVD player (the Panasonic CF-W2 which I highly recommend), I have recently taken to renting DVDs at the airport (from Inmotion) to watch on the plane during my book tour when I am too drained to read. The pickings of small-screen-worthy films are thin, so I broke down and rented Shattered Glass. To my great surprise, it is a helluva film.

First of all it is understated in its presentation, and the acting is superb. Hayden Christensen as Glass, Hank Azaria as editor Michael Kelly, and especially Peter Sarsgaard, as Chuck Lane are really wonderful in the subltety of their portrayals. So are all the more supporting actors. But, given my attitude towards the subject, I suppose the most impressive part of the film is how unforgiving it is of Stephen Glass. It is not as though the film dumps on him either. That is not required. Rather it seems almost documentary in its dispassion-though not in its presentation-leaving it to the viewer to judge. We are allowed to see Glass at his youthful seductive best before watching him (and the holy New Republic) crash and burn when exposed by the internet publication, Forbes On-line. Explanations for his behavior are only hinted at, and never asserted by the film to be either true or genuine excuses. There is only one self-congratulatory scene at the end concerning the New Republic that offended me, but just one scene in a film that could have offended me at any moment is pretty impressive.

I won't say any more about the movie, except to say that if you refused to see Shattered Glass for anything like the reason I did, you should rent this film. Then, after viewing it, watch the 60 Minutes interview on the DVD. I also highly recommend rewatching the movie with the director's commentary on. I rarely do this and intended to do so for a few minutes and proceeded to watch the whole thing. Significantly, it features not only commentary by director and script author Billy Ray on the techniques he used on this his first film, but he is joined by Chuck Lane who comments throughout on the authenticity of scenes and dialogue. You find out which were verbatim, which characters were composites, and which incidents were the result of dramatic licence. And you also get an even more negative impression of Glass than you do from the film itself. Lane has clearly not forgiven Glass, and neither need we.
Article on Israel's Arab Minority: An excellent piece on the dilemmas faced by a Jewish, democratic state in dealing with its minority population, and vice versa, by my GMU colleague Peter Berkowitz.
Housing Bubble? Matthew Yglesias is staying out of the D.C. housing market. After an abortive bid on one house, so am I. The market seems absolutely insane. Every economic analysis I've read (edit: not sponsored by the housing industry) suggests that housing prices in Northeastern markets are out of whack by every historical measure (compared to apartment rents, compared to housing rents, compared to incomes, you name it), and a brief venture into the market bears that out.

A ten minute walk from the Crystal City metro, folks are paying $400,000 for a 1,000 square foot house (usually built around 1940). I used to live in the Crystal Square apartments, right on top of the Crystal City metro, no walking outdoors in bad weather required. The building has a gym, pool, food court just below, underground parking, etc., and you can also get 1,000 square feet of living space starting at $1,230 a month. I've done the math, and if you are planning to stay put for five years or so, it's a lot cheaper, even with ownership tax breaks, to live in Crystal Square, unless you are expecting housing prices to continue a sharp rise. A market in which people are expecting continued sharp rises in housing prices is a good market to stay out of.

One thing I hear from many people is that "prices can't go down." Maybe they will stabilize, but they can't go down. Why not? Prices in Arlington, Virginia, have more or less doubled in five years. If prices were to go down by, say, 20% over the next two years, that would still amount to a none-too-shabby 60% price increase over seven years. A 10% decrease in prices would leave an 80% seven year increase in prices. And it's not like prices didn't fall in the DC area in late '80s, the last time housing prices were equally out of whack with standard valuation measures (it's hard to believe in today's market, but the house I bought in Annandale when I moved to D.C. in 1995 had been sitting on the market for a year!). The "prices can't go down" mantra sounds very much like the "NASDAQ can't go down" mantra of the late '90s, and listening to people at cocktail parties discussing their successful amateur ventures into real estate ("bought that townhouse in Silver Spring; figure I'll rent it out to some students for two years, then flip it for a bigger property in White Flint") sounds very much like listening to people discussing their stock trades circa Fall 1999, though there are obviously fewer people involved.

It's possible I'll still decide to buy something. Interest rates seems as low as they are likely to be in the foreseeable future, my lease expires in July and my landlords may be returning from their State Department gig abroad, and it took me months to find a suitable rental last time, and at least with a house you know you get to move on your schedule. But if I do so, I'll be expecting it to be a financial mistake.

UPDATE: Read this excellent survey on surging housing prices from last May's Economist.

Friday, April 2, 2004

The Bush Administration is Finally Exercising Some Fiscal Discipline, but House and Senate Republicans won't play along.
"World's Leading Anglican Weekly Newspaper" demonstrates contempt for the handicapped: Oliver Kamm writes:
See if you can spot the non sequitur in this unhinged editorialising by the Middle East correspondent of the Church Times, the newspaper of the Church of England:
The assassination of the Hamas leader, who was disabled, has intensified Arab anger over what is perceived as Israel's arrogance -- and its uncritical support from the United States.
If I were a murderous bigot in a wheelchair, I'd be pretty offended at the insinuation that I was any less culpable for my acts of terror merely because I was physically incapable of carrying them out other than through an intermediary. . . .
Remember: He wasn't disabled -- he was differently able. Really, he was.

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

UPDATE: Reader Lewis Maskell says the Church Times is not the paper of the Church of England, and quotes this:
The Church Times, founded in 1863, has become the world's leading Anglican weekly newspaper. It has always been independent of the Church of England hierarchy.
I don't know who's right (I assume the quote is literally correct, but that's not inconsistent with the paper's being in practice and informally the organ of the Church), so I thought I'd mention both sides. If you know more details on this, please let me know. I've also changed the post title from "Church of England demonstrates contempt for the handicapped" to "'World's Leading Anglican Weekly Newspaper' demonstrates contempt for the handicapped" just in case Kamm was mistaken and Maskell is correct, since I'd rather err on the side of caution on this.

FURTHER UPDATE: Oliver Kamm confirms that Lewis Maskell is right: "Lewis Maskell is quite correct on this: I ought to have described the Church Times as the world's principal Anglican newspaper, published independently, rather than as the newspaper of the Church of England. Apologies to Eugene for my error: I shall put an amendment on my own blog." Many thanks to Mr. Maskell for the correction.
One Last Post on Rankings: Brian Leiter provides a handy chart, with the U.S. News top 40 law schools, faculty quality as determined by Leiter's rather good survey of top law professors, LSAT at the 75th percentile (as a measure of student quality), and class size.

Leiter notes that George Mason's 165 75th percentile LSAT is based on a very small full-time class, which is true. On the other hand (and this isn't true of our competitors across the river), our part-time program is traditionally very similar to our day program statistically, and our top part-time students tend to be our best students (in part because we have a well-regarded part-time intellectual property program that attracts many older students with science backgrounds).
Bomb found on Spanish railway line: The New York Times reports. Thanks to Dan Schmutter for the pointer.
How Hollywood milks European governments, by RiShawn Biddle in the American Spectator:
To see how Hollywood has turned Germany's -- and Europe's -- crusade against so-called American cultural imperialism to Tinseltown's Titanic advantage, check out The Punisher, the action film based on a Marvel Comics comic book about a vigilante antihero.

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

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

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

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

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

And obviously, lots of us avoid firms altogether. Career Services at YLS has statistics on this. In the first year out, over half clerk. In the second year, over half are at firms -- but as I recall, it's something like 60-70%, meaning a large remainder chooses something else (typically: criminal work for the govt, fellowships, more school, business jobs, etc.). Of the 60-70% who do firms, I don't know what % of those are in NYC. I'd be surprised if it were much more than half. Moreover, if you look a few years down the road, the % at firms drops substantially.... Not everyone follows Vault.com to Skadden.
Plainsman of Southern Appeal agrees that my initial conversation gave exaggerated influence to Vault.com, while acknowledging that things may have worsened in the last year or two, as the rankings became more established in students' minds. And Waddling Thunder, a 2L at Harvard, agrees with Plainsman.
We Jews are apparently a biased, untrustworthy lot -- but at least we can read. Empty Days begin its response to my legitimacy post this way:
The Volokh Conspiracy (which is an all-jewish neocon outlet by its own admission) doesn't understand how giving some international legitimacy to the Iraq war could improve things there.
Oh, that's what's important! We're all Jews (not quite accurate, but close enough), and neocons to boot. Actually I've never said that I'm a neocon (I haven't figured out the articles of faith enough to decide whether I am or not), but never mind. Here's how our Jewish biases apparently manifest themselves:
That's interesting because that's exactly how a whole lot of people think about this. They're convinced that 90% of Iraqis are basically favorable to US presence, despite whatever reservations, and that it's only a small group of rabid insurgents who cause all the havoc and need stamping out, like a burning cigarette in a pile of hay. The logic is simple: just keep stamping out those cigarette buts and all will be well in the end.

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

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

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

(The thing about Arab League doesn't deserve much discussion - these guys won't mess with Iraq at this point for the life of them, it's too much of a messy issue, they'll rather wait to see how the UN fares in there first.)
As I said, we Jews are apparently evil and selfish, but we are smart, and we can apparently read better than other people. When reading my post, for instance:
I don't get this. It wasn't the French who killed the four contractors. It wasn't the U.N. It wasn't anyone who cares about "legitimacy." Would Islamist radicals behave any differently if NATO were controlling the show rather than the U.S.? Would the ex-Baathists? Would even the local supporters of the killers support them any less if NATO were in charge?

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

Legitimacy is not an end in itself, at least in this situation. It is a means towards effective peace-keeping, which of course means to the extent necessary, effective war-making (since even the most "legitimate" body will have to hunt down those people who keep fighting against them). I don't see how any of the other examples that Kaplan points to will be more effective.
we'd notice that none of it remotely relies on the notion that 90% of the Iraqis like us. Rather, the post argues that (1) there's little reason to think that Iraqis will like NATO more than they like us, and (2) even though some of them might like the Arab League and conceivably the U.N. more than they like us, being liked isn't good enough -- you also have to be effective, and the Arab League won't be.

     But the admitted Canadian (there's that little maple leaf flag on the blog, and obviously it tells us volumes) Mr. Days seems to have somehow missed this. Our flaming Jewishness must have temporarily blinded him.
Jon Rauch writes:
On March 22, in Gaza, Israel shot a helicopter-fired missile at Yassin. Reaction was swift and scathing. The British condemned the attack as an "unlawful killing." The European Union said that extrajudicial killings were "contrary to international law." Turkey's prime minister said, "This was a terrorism incident." Most of the United Nations Security Council lined up behind an Algerian resolution condemning "the most recent extrajudicial execution committed by Israel" and denouncing "all attacks against any civilians as well as all acts of violence and destruction."

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

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

The rap on Clinton, of course, is not that he tried to kill bin Laden but that he failed. Last week, while Israeli Prime Minister Ariel Sharon was being fricasseed for hitting Yassin, the September 11 commission was grilling Clinton's former secretaries of State and Defense for missing bin Laden. Even by Washington's standards, the inconsistency was glaring. Whatever the tactical differences between the two cases, morally they are indistinguishable. . . .
The rest of the piece is also very much worth reading, as usual with Rauch's work.
Another K-12 school T-shirt case: From the AP:
An openly gay teenager received a $30,000 settlement from the city over her suspension for wearing a "Barbie is a Lesbian" T-shirt to school, her attorney announced Thursday. . . .

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

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

Thursday, April 1, 2004

The limited benefits of legitimacy: Fred Kaplan (Slate) writes, about the Fallujah killings:
If there is a way to deal with the insurgents, it will be fundamentally political -- and it will have to take shape in the next few months. Two things are necessary. First, the occupying "coalition" must be broadened, and the occupation authority must be turned over to some international body. The Bush administration seems to realize this -- hence Bremer's recent urgent calls for the United Nations to mediate internal disputes in Iraq. Will an international organization -- the U.N., NATO, the Arab League, or whatever -- be more effective than the U.S.-led CPA? Maybe, maybe not. But it would be more legitimate. . . .
     I don't get this. It wasn't the French who killed the four contractors. It wasn't the U.N. It wasn't anyone who cares about "legitimacy." Would Islamist radicals behave any differently if NATO were controlling the show rather than the U.S.? Would the ex-Baathists? Would even the local supporters of the killers support them any less if NATO were in charge?

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

     Legitimacy is not an end in itself, at least in this situation. It is a means towards effective peace-keeping, which of course means to the extent necessary, effective war-making (since even the most "legitimate" body will have to hunt down those people who keep fighting against them). I don't see how any of the other examples that Kaplan points to will be more effective.
Feinberg: The University of Arizona has posted an obituary of Joel Feinberg, as has the AP.
Chicken law: From the Smithfield Times (in Virginia):
The Grace Street chickens remain under threat after Smithfield town attorney Bill Riddick issued one chicken owner a March deadline to get rid of her chickens or face potential legal action.

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

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

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

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

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

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

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

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

When asked if chickens are still living on Grace Street, [Bill Hopkins, the town director of planning, engineering and public works] replied, "I don't do chicken patrol very often."
Thanks to Becky Dale for the pointer.
Ranking the Law Schools by Median LSAT on US News's website (premium access required), Georgetown moves up to seventh, Fordham to sixteenth, BYU to 21st, U. Washington to 25th, GMU to 31st, Cardozo to 35th, Baylor to 36th, San Diego to 44th, Brooklyn to 46th, and Lewis and Clark to 47th. As I mentioned previously geographic desireability seems a significant factor in attracting good students. Given these LSAT rankings, these schools are likely much harder to get into than their ranking suggests, although an even better indication would be their twentienth percentile LSAT. Many premier state schools, including Texas, Iowa, Illinois, and North Carolina drop based on their LSAT, so these schools are likely easier to get into, especially for in-state students, than their U.S. News ranking would suggest.
Polls: I'd be happy to see Tom Daschle be defeated in his Senate race, but this item doesn't much excite me:
Daschle Slipping in SD Polls

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

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

UPDATE: Glen Whitman takes a different view; but while his point may be sound in some situations, I stick by my analysis in this case.
Sons of Martha: Something reminded me this morning of this poem, which is one of my favorites; so I thought I'd blog a link to my earlier post about it, nearly two years ago now. One might not think a poem about engineers (more or less) could be great, but this one is.
The Israel-Egypt Peace After 25 Years: Interesting analysis here (link requires free registration with Jerusalem Post). The author notes that Begin made a huge strategic blunder in retaining control of Gaza, thereby linking it with the West Bank and strengthening Palestinian identity and the case for a unitary Palestinian state (before 1967, Egypt controlled Gaza, Jordan controlled the West Bank, and no one talked about a Palestinian state that would encompass these territories).
Duke University buys up public domain! IBiblio reports:
In a move shocking to all, Duke University, of Durham, North Carolina, purchased the entirety of the public domain late last evening for a fee of 2.2 trillion dollars. . . . As a result of the purchase, Duke University is the sole rights-holder to a huge collection of materials, including the Bible, the works of Shakespeare and Dante, and Francis Scott Key's The Star Spangled Banner.
Wow, quite a story.
My Name: One of the greatest things about blogging is hearing from readers. I try to answer or at least acknowledge messages, but all too often they slip past me, especially when I am traveling. A couple weeks ago, I blogged about anti-Semitism and one reader whose last name is "Barnett" wondered how someone Jewish like me came to have such a non-Jewish sounding name. Indeed, it is so non-Jewish sounding that when I joined the Conspiracy, Eugene touted this as adding diversity because I was not Jewish. When Richard Posner did his survey of public intellectuals (for table click here), he categorized me as non-Jewish too. Perhaps both intuited that I am not observant, indeed I am no longer a believer, but I think it was my last name that misled them.

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

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

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

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

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

Once settled into their new homes, however, anything could happen. Millions of immigrants had their names changed voluntarily or by clerks or by schoolteachers who couldn't pronounce or spell children's names. Some immigrants changed their names in order to obtain employment. Many immigrants found it easier to assimilate into American culture if they had American-sounding names, so they gladly went along with whatever their neighbors or schoolteachers called them.
I was always told by my parents (who did not know from first-hand experience) that the name changes were made to assist the immigrants in assimilation, sometimes because these names were hard to pronounce, not that the immigration officials themselves could not pronounce them. Still, I found these revisionist accounts quite interesting.

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

Related Posts (on one page):

  1. Harris Barnett:
  2. My Name:
Crypto-Jews in Spain and Portugal: Hard to believe, but more than five hundred years after the forced conversion/expulsion of Jews from Spain and Portugal, there are still individuals in those countries that retain vague ties to their Jewish pasts (one entire community in the town of Belmonte, Portugal managed to maintain a secret quasi-Jewish life into the 1970s, when the community finally felt safe in "coming out.") Via forwarded e-mail, I received the following report about a recent meeting of such individuals:
More than fifty descendants of Spanish and Portuguese crypto-Jews attended an intensive three-day seminar held in Madrid this past weekend by the Jerusalem-based Amishav organization, which reaches out and assists "lost Jews" seeking to return to the Jewish people.

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

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

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

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

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

"I waited 500 years for this seminar," said one participant from northern Portugal. "And now at last I feel that I have taken a first step on my way back home, to rejoin my people - the Jewish people."
So-called "crypto-Jews" are even more common in Latin America and the American Southwest, because secret Jews from Spain and fled there to evade the Inquisition, which arrived there late and had trouble tracking people in remote frontier wilderness.

Wednesday, March 31, 2004

Schmitt redux: More on that odd Alan Wolfe article I lmentioned a couple of days ago, the one that documents the fascination of the intellectual left with Carl Schmitt and then proceeds to say that contemporary American conservatives are Schmittians-in-practice, the evidence for which is that Ann Coulter is vicious.

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

2) Russell Arben Fox offers this skeptical analysis. The Jens 'n' Frens bloggers have been discussing the article as well; the most substantial posts are here and here.
You can't take it with you: The following article might stimulate your thoughts in several different directions. It asks whether you should give away or invest your money. How much you should leave for your heirs. Whether religion is needed to stimulate more charity. And whether you should target the poorest people with your aid or seek to build up institutions instead. I'll offer an excerpt without further specific comment:
"Tom White...will get his wish. At 84, the construction millionaire has given away his fortune. If he has his way, he'll be down to his last quarter when he draws his last breath. Since [WWII]...he estimates he has given away $75 million, pretty much all of his assets. He has supported more than 100 causes over the years, but his biggest gift by far has gone to Partners in Health, the program made famous last year with the publication of Tracy Kidder's book "Mountains Beyond Mountains." The book details the work done in Haiti and other Third World countries by Dr. Paul Farmer, a Harvard professor and infectious-disease specialist whose work on AIDS and tuberculosis for the world's poorest has been hailed as groundbreaking. White put up the initial money for the program and has steadily funneled tens of millions of dollars
into it.

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

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

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

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

Here is the full story. Thanks to Selena Maranjian for the pointer.
Search engine query that somehow got someone to our site:
jewish woman fetish what to call it?
I have no idea.
The new (2005) U.S. News rankings of law schools are being posted and discussed all over the web. Biggest surprise: Boalt drops to thirteen. George Mason continues its climb, to 38. I'm sure Brian Leiter will have some choice words to say about the rankings, as usual. I'm not a huge fan of U.S. News's methodology. As an example of why, GMU typically gets approximately the same "academic reputation rank" as schools whose entire faculties are outproduced in any given year by one or two of my colleagues, and GMU's actual peer reputation is much, much higher than U.S. News's methodology determines.

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

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

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

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

ALSO, via email, Brian Leiter objects to using LSAT scores as a "student desireability ranking":
Such information is not given very clearly, however, by median or even 25th and 75th percentile LSAT scores, and for a reason you allude to, in effect, in your comments on Washington & Lee: differing class sizes. Needless to say, we are vividly aware of this issue at a school with roughly 500 students in each entering class. It turns out, for example, that we attract more students each year with LSATs over 169 than Duke, even though Penn's 75th percentile LSAT is 169 and ours is 166. The difference, of course, is that Duke is less than half the size of Texas.
On the other hand, Texas has a relatively captive in-state market as an inexpensive state law school that is by far the best law school in a populous state, so one would expect the very top of its class to be extremely strong. Each school has its own "story" (how much better GMU would do if we didn't have to compete with Georgetown and GW in the DC area, and William and Mary and U. Va. for in-state Virginia students!) so any single ranking has to be taken with a large grain of salt.
Leiter has more comments on U.S. News here.

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

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

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

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

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

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

Of these two possibilities, the former is more likely (although far from certain). But all of these issues will likely be dealt with in the coming weeks because Oklahoma has set a May 18 execution date for one of the Mexican nationals covered by this ICJ judgment. My very able former colleagues at Debevoise & Plimpton in New York are probably preparing briefs and motions to file in the next few days.
I'm no expert on this subject, but Prof. Ku is, so I thought I'd pass along his thoughts.
Still more stuff that will prevent this blog from passing your web-filter: As if all Eugene's child-pornography posts weren't enough.

Both of the following via Radley Balko.

Someone has finally slipped down a slope that I've been mentioning (awkwardly) for a few years. A Georgia bill to ban female genital mutilation (already a federal crime, by the way, and I'd argue that the cases we really want to prevent could already be prosecuted as child abuse) has been amended to ban female (only) genital piercing.
The bill would make such mutilation punishable by two to 20 years in prison.... Amendment sponsor Rep. Bill Heath, R-Bremen, was slack-jawed when told after the vote that some adults seek the piercings.

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

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

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

Radley's other story: A Virginia woman is being prosecuted for the felony of "crimes against nature" for having received oral sex.
On Monday - under an agreement with prosecutors - the man pleaded guilty to the lesser charge of indecent exposure. The woman was offered the same plea, said Newport News Assistant Commonwealth's Attorney Jill Schmidtke. If convicted of the felony charge, the woman could face up to five years in jail.

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

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

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

Schmidtke also said that the constitutionality of the statute "is a matter for the legislature."
Judge Sugg, of course, doesn't have to rule de novo on the constitutionality of the statute; that's already been done for him by the Supreme Court. He appears not to have gotten the memo. I'd like to have seen the complete Schmidtke quotation to know excatly what it is he said was a matter for the legislature. As the passage stands, he seems to lacka working familiarity with the whole concept of judicial review.
Crime and Federalism: I became a state court prosecutor for the Cook County State's Attorney's Office in Chicago after graduation from law school, rather than a federal prosecutor, because I cared about the most serious of real crimes with real victims: murder, rape, home invasions, armed robberies, etc. (While I am extremely proud of my service there and enjoyed it immeasurably, because of the war on drugs--which I consider to be highly unjust--I could not today in good conscience be a prosecutor of any kind, but instead would be a public defender.)

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

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

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

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

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

We used to be able to count on one hand when Congress could define or punish crimes. Now no one can know the extent of potential criminal liability under federal law. This blog will explore what happened.
Welcome to the blogosphere!
Child porn and pictures of naked kids: Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren't lewdly exhibited -- which probably refers to how they're likely to be seen by the typical observer, and not to the intentions of the minor -- presumably wouldn't be child pornography. (Conversely, a picture of a child who isn't nude, but that is focused on the child's genitals, may well be child pornography, see U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994).)

     At the same time, what's lewd exhibition and what's not is in the eye of the beholder (cf. Tom Lehrer). Knox, for instance, applies a six-factor test:
1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Some pictures would clearly qualify, others would pretty clearly not, but quite a few will end up being in a very dangerous gray area. I suspect that in practice nudity will indeed be the most important factor for many prosecutors, judges, and jurors (though, I stress again, neither a necessary nor a sufficient one). So when in doubt, you might want to cut down on the nude pictures, especially once you're getting past the clearly socially well-accepted (e.g., the naked infant in the tub).
BedRoc: Marty Lederman (SCOTUSBlog) tries hard to make this Supreme Court decision interesting -- in my book, he succeeds, but I find all sorts of odd things interesting.
Sex and pictures of sex: A friend of mine sent me a message with the title "Child porn," and the body:
I've never sent an e-mail with such an explicit title before...

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

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

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

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

     Allowing oneself to be photographed having sex falls much more into the category of smoking or chewing tobacco, I think, rather than having sex. It's not that great an interference with people's choices; and there aren't as many hormones and social pressures that will lead the ban to be routinely flouted. It's not irrational, then, to try to stop immature people from making such a decision, even when the law decides not to block such people's decision to have sex.
Child prosecuted for child pornography -- of herself: Michael Froomkin reports and comments, quoting this story:
State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

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

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

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

     In any case, though, it's an interesting and complex case, perhaps more complex than it at first appears. If anyone has more factual details that might shed light on the prosecutors' decision, I'd like to hear about them.
Heh. Y'know, this is made even better by the fact that it's Rhode Island, traditionally home to corruption in state and municipal government that could have kept a super-hero busy for years, and home to Buddy Cianci, who would have been vetoed as a crimelord-mayor villain by any comic book editor for being too unrealistic. (Registration required to follow the link.)
When the former [Rhode Island] attorney general, Sheldon Whitehouse, took office in 1999, he installed a bronze plaque outside 150 S. Main St. declaring: "I will not cease from mental fight. Nor shall my sword sleep in my hand. . . ."

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

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

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

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

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

"Attorney General Lynch?"

"Yes."

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

"Yes."

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

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

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

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

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

"Tell him 'Thank you' and, absolutely, that's what we'll put on the sign."
Just to do my alma mater proud, and to reinforce the (false!) image that people who read comics never read anything else, we've also got this:
Lynch said he's not going to get rid of Whitehouse's plaque. Rather, it will go on display in a boardroom that Lynch is dedicating to the history of the attorney general's office.

When asked to recite lines from Blake's poem, Lynch just shook his head. "I went to Brown [University]," he said. "I may have read Blake, but I can't recall if I did." Then he added, jokingly, "It might have been a morning after a frat party."
Providence is also home to the building (the Industrial National Bank) that served as the model for The Daily Planet building in the old George Reeves Superman television show, according to a disputed local legend.

Elsewhere in comics: Cerebus. Ah, yes, Cerebus. It's done now, in case you hadn't heard yet. See this Julian Sanchez post for a roundup, and for the following terrific Warren Ellis quote:
A testament to utter determination and vision. I mean, it pretty clearly drove the guy insane, but it's an astonishing achievement.
But of course, everyone who cares to know already knows that the comic is over, and that Dave Sim has been driven insane. I just wanted to point you to jaw-droppingly car-wreck-watching-fascinating funny-and-sad evidence of it. Belle Waring points to this Onion AV Club interview with Sim. I'll repeat here what I said in Belle's comment section: The surprisingly odd thing about the interview (as opposed to all of the odd things I've come to expect about Sim) was this:

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

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

As Belle says, "Did I mention he was crazy?
Was the Right to Bear Arms Conditioned on the Militia?: A new and improved version of my review essay, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" has been accepted by the Texas Law Review. Although it won't appear in print until December (at the earliest), you can read a pre-edited version now by downloading the file from the SSRN. Here is the abstract:

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.
Download it here. (If you read an earlier version of this paper, this one is much expanded and improved, with additional analysis and evidence.)
Why You Should Attend Cato University This Summer: For the past several years, I have lectured at the Cato University--a week-long feast of libertarian lectures and discussions in the most pleasing atmosphere of the Rancho Bernardo Inn near San Diego. This year the seminar conflicts with my annual lectures at the Europe and Liberty Seminars organized by the Institute for Economic Studies, which this summer will be held in Gummersbach, Germany (near Cologne) July 25-31.

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

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