The Volokh Conspiracy

Gorelick recusal rule: This Eric Muller (IsThatLegal?) post is so useful that I thought I'd link to it and excerpt it even though InstaPundit has also already done it. The bottom line:

Under these guidelines, it certainly seems to me that Ms. Gorelick should not be participating in the portion of the Commission's investigation that focuses on law enforcement's role in counterterrorism. I think it would have been wise for her not to be present at the hearing yesterday.

On the other hand, she's a very smart lawyer and her participation in other hearings has, to my eye, been very focused and helpful.

I think the calls for her outright resignation are exaggerated. On the other hand, I think she should confess that she ought not be playing a role in the Commission's law-enforcement-related inquiries, and should recuse herself from all further deliberation on the matter.

For the text of the guidelines, and more from Eric, see his post.

Who benefits? I'm hardly one to espouse a naive (or sophisticated) self-interested view of political action. That being said, I chuckled when I read the following:

" Last year's tax cut proved to be a significant windfall for its main architect and political instigator, saving President Bush tens of thousands of dollars on his 2003 return."

Bush's income fell four percent over the last year, to $822,126. His current income tax liability fell fifteen percent, saving the Bush family about $30,858. The Cheneys saved more than $88,000. But most of these savings were due to write-offs. In fact the Cheneys were hit by the Alternative Minimum Tax.

How about Kerry?

"Meanwhile, for Sen. John F. Kerry (Mass.), the Democrat seeking to drive Bush from the White House, his tax burden more than tripled on income that surged with the sale of a million-dollar painting."

The Kerrys filed separately, but John reaped $1.35 million from the sale of a painting by Dutch Baroque artist Adam Willaerts.

Here is the full story, brief registration required but subscription not needed.

Wall of Separation: You might find this excerpt from Attorney General John Ashcroft's testimony before the 9/11 Commission to be of interest:

The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents. Government erected this wall. Government buttressed this wall. And before September 11, government was blinded by this wall.

In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required. The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall "effectively excluded" prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail.

In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI Headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

At that time, a frustrated FBI investigator wrote Headquarters, quote, "Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems'. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, UBL, is getting the most protection."

FBI Headquarters responded, quote: "We are all frustrated with this issue ... These are the rules. NSLU does not make them up."

But somebody did make these rules. Someone built this wall.

The basic architecture for the wall in the 1995 Guidelines was contained in a classified memorandum entitled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations." The memorandum ordered FBI Director Louis Freeh and others, quote: "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."

This memorandum established a wall separating the criminal and intelligence investigations following the 1993 World Trade Center attack, the largest international terrorism attack on American soil prior to September 11. Although you understand the debilitating impact of the wall, I cannot imagine that the Commission knew about this memorandum, so I have declassified it for you and the public to review. Full disclosure compels me to inform you that its author is a member of this Commission. . . .

It is difficult to blame Commissioner Gorelick for her failure as Deputy Attorney General to forsee 9/11 when she issued this directive. Had she anticipated 9/11, there is little doubt she would have acted differently.

UPDATE: Instapundit links to blogospheric reaction to press coverage of this disclosure and Gorelick's conflicts of interest.

Fast-Track Ramesh Ponnuru writes:

While I'm on the subject of this blog, I may as well mention a post there that had caused me some puzzlement. Jacob Levy, in the course of making a point about originalism that I think is wholly sound, remarked that he thought that the "fast track" procedures for approving trade agreements were unconstitutional. ("Fast track" has been relabeled "trade promotion authority" for obscure p.r. reasons.) I had previously associated this view with crackpots, not people who know what they're talking about, so I was surprised to see it coming from Levy--and I'd be interested in seeing why he takes it.

I appreciate that Ponnuru was surprised rather than unsurprised to see me espousing a crackpot view...

It's a view that has mostly been espoused in court by unions trying to block NAFTA, though Lawrence Tribe represented them on one occasion, as I recall. Neither is entirely comfortable company, to be sure.

The Constitution requires a two-thirds vote of the Senate to ratify treaties; the Senate has the right to amend these or ratify them only in part. The post-World War II innovation of a "Congressional-executive agreement" moves many international agreements out of the category "treaty" and into the catgeory of something else (an agreement) that can be submitted by the President for a straight up-or-down vote-- by simple majorities of both houses.

This is not the treaty-ratification procedure. Neither is it the ordinary legislative procedure. (One might think that NAFTA was just a legislative act, as far as U.S. domestic law was concerned, because it lowered tariffs and did other things that Congress has to do legislatively. But it doesn't fall under the category of ordinary legislation.) When Congress and the President arrange a new procedure for enacting... stuff, and when that "stuff" falls between Constitutionally-recognized categories (treaties and legislation), I think we have good grounds to worry that something constitutionally dubious is going on. Congress and the President aren't supposed to create new extra-constitutional procedures in side agreements between themselves.

Moreover, there appears to be no consistent standard as to when something counts as a treaty and when it is eligible for a Congressional-executive agreement. It's not only trade; and when it is only trade, that's just because Congress said so. This allows for the Treaty Clause to be gutted; the President and Congress might agree to have everything submitted for fast-track approval rather than 2/3 Senate approval. (As far as international law is concerned, we'd still be bound by the treaties-that-aren't-treaties-as-a-matter-of-domestic-law.)

Whether something is a treaty or not has been held by the courts to be a non-justiceable political question-- also often a red flag. The "political questions" doctrine is sometimes right, that there are things that the political branches do that the courts lack the competence to inquire into. But it always means that there's something potentially unconstitutional going on under its cover. On balance I think the courts are right to stay out of the question of whether a given military action is a war for the purposes of triggering the requirement that Congress declare it. But that means that, at least sometimes, at least potentially, there are military actions that should properly be constitutionally classified as wars that won't be. At least some of the choices that the political branches are left free to make on any given subject by the political questions doctrine are probably unconstitutional; the courts simply hold that they're not competent to determine which ones.

Finally, during FDR's presidency, when progressive thought turned against so many of the procedural and substantive limits that the Constitution placed on policymakers, the Treaty Clause was one of the objects of derision. In the early 40s, a number of states passed resolutions calling for a constitutional convention to replace the Treaty Clause power with majority approval by both houses. The House passed a constitutional amendment doing so, in 1945. But the amendment and the movement for a convention died, because Truman found that it wasn't necessary; he submitted many of the postwar agreements to both houses of Congress under Congressional-executive agreements.

This seems like pretty compelling evidence to me. Even New Deal-era progressives thought that the Constitution had to be amended to authorize two-house-majorities rather than 2/3 Senate approval for treaties (and they didn't tend to be scrupulous about pursuing Constitutional amendments to change the Constitution). Some states as well as the House considered the Treaty Clause worthy of amendment. And then-- mirable dictu! a heretofore-undiscovered category of international-agreements-that-aren't-treaties is found, and that category's proper means of approval is found to be what the amendment would have prescribed for treaties themselves. This is not the stuff of good-faith constitutional interpretation. This is the stuff of Roosevelt-era constitutional amendments without using the amendment procedure. Not coincidentally, it resulted in a significant strengthening of executive power, because the President now has the ability to cherry-pick the procedure that is most likely to yield a favorable outcome. (Trade treaties couldn't survive the amendability of the straight Treaty Clause power, but many other Congressional-executive-agreement agreements are military and could have.) Also not coincidentally, it resulted in a weakening of the Senate, one of the constitutional bogeymen of the era, held up as an aristocratic anachronism.

One more nail in the coffin as far as originalists and textualists are concerned should be the following: the most influential defense of the constitutionality of the agreements has come from Bruce Ackerman, and his defense has been that in 1944-46 we had one of those extra-textual "constitutional moments" that (according to his theory) result in a new constitution without the bother of formal amendments. It's of a piece with his New Deal "constitutional moment" that originalists and textualists know to treat with grave suspicion

I wish the amendment had passed; and I'd truly hate to see my argument carry the day in court, because it would knock the U.S. out of the trade-agreement business, possibly for a long time. (I doubt that the amendment could pass today, when it would be understood as the vehicle for trade agreements.) But I can't see either an originalist or a textualist account that says we're constitutionally allowed to proceed as if that amendment had passed.

UPDATE: Professor Julian Ku writes in:

With respect to your recent blog posting on congressional executive agreements, I'd agree with you that the originalist/textualist case for such agreements is a bit problematic, but I don't think it is as impossible as your post suggests.

The Constitution does recognize the existence of non-treaty agreements (the power to make "compacts" that are denied to the states without congressional approval). It is reasonable to assume the power to make these sorts of non-treaty agreements lies with the President. The hard question, of course, is whether there is a subject matter limitation on these non-treaty agreements, which were made from the Washington administration to the present, but which only recently have dealt with trade.

I would recommend to you the best originalist analysis I've seen, by Michael Ramsey at 77 N.C.L. Rev. 134, if you are interested. Basically, he argues that the non-treaty agreements power was understood to be held by the President, but that they could only be temporary agreements, deal with minor matters, and that they could never have domestic effect without congressional implementation.

This last point suggests a tenable distinction: executive agreements can be made on whatever the P. wants, but unlike treaties, they can never be self-executing. Alternatively, others have argued that treaties could extend beyond Congress' commerce clause powers against the states, while executive agreements were limited.

I think you are right that the law is a bit iffy here, but I think there are plausible textualist or originalist arguments for non-treaty international agreements, even in the trade area, that might survive judicial review by an originalist court.

I'll follow up and read the Ramsey article; I'm intrigued. I appreciate the reference.

Does Europe face a Muslim demographic time bomb? Maybe not, read this article. Here is one provocative bit of several:

"Figures of eight million French Muslims are regularly tossed around, based, it seems, on panicked fears of high Muslim immigration and a high Muslim birth rate. These figures are vastly overestimated, though. Figures on religious affiliation and ethnic background aren't kept by the French government, as part of a long-standing reaction against the misuse of those figures by Vichy to deport immigrant Jews to the concentration camps. The suggestions of The Economist that there are a bit over four million French Muslims seem to be more sensible and generally accepted. This amounts to roughly 7% of the French population--a significant number, to be sure, but not an overwhelming majority.

If this minority population grew for the next 50 years at a rate of 2% per annum (a high rate, and one that doesn't seem to be supported by signs of an ongoing demographic transition), while the remainder of the population shrunk at a rate of 0.5% per annum (also a high rate of decrease, and one that doesn't seem likely to be achieved for a while given generally high French fertility rates), at the end of this 50 year period the total French population would have shrunk by 9%, and France's Muslim population would amount to roughly one-fifth of the total. You'd have to wait for a century to approach a position of parity between the two populations, assuming the same unrealistic growth rates. This is definitely not any sort of imminent threat, nor as I shall demonstrate is it a very plausible threat at all."

Or how about this:

"The French Muslim community, after all, is barely more than a generation old. In Tunisia, fertility rates have fallen below the levels needed to sustain the population over the long term; Algeria and Morocco, Turkey and Tunisia, are not much further behind. There isn't any more reason to assume that French Muslim fertility rates will remain above replacement rate, after all, than there was to expect Western fertility rates to remain above replacement level. If anything, quite conceivably Maghrebin fertility rates could fall far below replacement levels. Societies with a certain minimal level of female autonomy, fairly low living standards, and access to contraceptive technologies can have rather low birth rates despite being generally conservative--look at Romania and Bulgaria, for instance, or Poland and China, or even Italy and Spain. It isn't difficult to imagine a situation where, one day, the countries on the southern shore of the Mediterranean will have a lower fertility rate than the countries on the northern shore of the Mediterranean. I have already. The impact that this will have, of course, on French Muslim fertility rates can hardly be anything but negative."

I would need to play around with the numbers for a long time before I could endorse all of these conclusions. Nonetheless it is worth pointing out that there is another side to the story. Too many people assume, without further investigation, that parts of Western Europe will rapidly become a Muslim sea.

Thanks to the ever-insightful Chris at CrookedTimber.org for the pointer to the article.

"Intoxicated Man Seeks Job With Police": Thanks to the CrimLaw blog:

Robert Gulley, an unemployed radio technician, was ticketed for alleged drunken driving as he drove away from the patrol office in this city near Vancouver. He had asked for a job application. . . .

When Gulley walked into patrol headquarters Wednesday afternoon, he was slurring his words, had glassy eyes and his breath smelled of alcohol, Trooper Maureen Crandall said.

When she told him it wasn't a good idea to apply to be a trooper while intoxicated, Gulley denied drinking, another trooper said.

So Trooper Rich Bettger, who'd overheard what was going on, offered to measure Gulley's blood alcohol level with a hand-held breath tester.

Gulley blew a 0.095, above the state's legal limit for driving of 0.08, indicating he'd had at least three drinks, March said. . . .

When the troopers asked Gulley how he got to the station, they said he told them he'd been given a ride. The officers said they warned Gulley not to drive home.

But after leaving the office and pacing back and forth on a nearby side street for 10 minutes, Gulley got into his car and drove away, troopers said.

He was promptly pulled over and ticketed. . . .

"I actually still want to join the police department," Gulley said. "Those guys are doing their job keeping the roads safe."

But state troopers said Gulley's career prospects with the patrol appear dim. . . .

"First Amendment right not to speak on radio or television": I agree with those who fault Justice Scalia for asking that "the electronic media . . . respect[] my First Amendment right not to speak on radio or television when I do not wish to do so."

     Scalia probably has a constitutional right not to speak on radio or television when he does not wish to do so. Congress probably can't order him to speak about something on radio on television, except under narrow circumstances such as if it subpoenaed him to testify at a televised hearing, or if it provided by statute that Supreme Court hearings be televised (and presumably that each Justice ask at least one question). This, though, probably relates more to separation of powers and the limits on Congress's power to order around independent judicial officials, not the First Amendment. Government employees probably can be required to speak on radio or television, at least to answer questions.

     Now it's true that a private citizen would have a presumptive First Amendment right not to speak on radio or television; the government couldn't mandate such speech by private citizens, again outside some contexts such as compelled testimony. But this right, like other First Amendment rights, could only be violated by the government, not by the electronic media. A radio rebroadcast of a tape of Scalia's speech wouldn't violate or even fail to "respect" Scalia's First Amendment rights, though it might fail to respect Scalia's copyright in his speech, or conceivably (though I highly doubt it) Scalia's contractual rights (I doubt this because I don't think that announcement of this policy would create any such contractual obligation).

     The one support that Scalia might have is this language from Harper & Row v. Nation Enterprises, which upheld a copyright lawsuit based on the unauthorized publication of excerpts from Gerald Ford's then-unpublished memoirs:

Moreover, freedom of thought and expression "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). We do not suggest this right not to speak would sanction abuse of the copyright owner?s monopoly as an instrument to suppress facts. But in the words of New York?s Chief Judge Fuld:
"The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect." Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (1968).
Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.

But as I argue in my Freedom of Speech and Intellectual Property article (pp. 724-28), this analysis by the Court is mistaken; it's inconsistent with the Court's other cases, and would yield some highly unsound results. (And even if it is accepted on its own terms, it's not clear to me that it would apply to the audio publication of material that's said to hundreds of people, and licensed to be reprinted in text; recall that Harper & Row involved publication of material that was then entirely unpublished.)

Of course, I suspect that Scalia isn't talking about his First Amendment right, but rather against what he sees as his moral right -- which he wants to suggest is consistent with broader First Amendment principles -- not to have the audio or video of his speech broadcast without his permission, or a right flowing from the obligations of good manners to respect a speaker's desires in this situation. One can debate about whether such a moral or good manners right exists. But I think that calling this a "First Amendment right" is an inexact and unfortunate usage.

UPDATE: Chris Lansdown writes:

I don't think that it's correct to fault Scalia for claiming a legal right not to speak on radio or television, since that plainly seems not to be the case if you read the whole sentence:
The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue.
He's clearly calling respecting his "First Amendment right not to speak on radio or television" a courtesy, not asserting that it's a legal right. This juxtaposition is quite odd, but I think that since it's contained within the same sentence one must interpret the first half in the context of the second clause (even if they are two conjoined independent clauses). Whatever Scalia means, it can't be implying a legally enforceable right.

If one is required to guess what Scalia meant by "First Amendment right", I would imagine he meant that the right to silence is as much a part of the spirit of the first amendment as is the right to speak, and so when he wants to be silent, or partially silent, granting him this right is within the spirit of the First Amendment, and hence a matter of courtesy. . . .

Chris raises a fair point; perhaps I didn't focus enough on the "courtesy" part. At the same time, the term "First Amendment right" has such a firmly legal meaning that the "courtesy" sounds more like understatement than an acknowledgment that the "First Amendment right" is really no right at all but just a matter of kindness or good manners. So I still think that the "First Amendment right" usage is unfortunate and inexact, in large part because it makes the assertion sound like a claim of legal entitlement, with the "courtesy" at the end of the sentence not materially softening the sound.

Scalia and print vs. electronic media: Will Saletan of Slate points out that Justice Scalia's policy -- to "permit recording for use of the print media," but to ask the "electronic media" to "respect[ his] First Amendment right not to speak on radio or television when [he does] not wish to do so" -- seems to prohibit recording for transcription onto Internet-based magazines and blogs, which are "electronic" rather than "print."

I suspect that Scalia is trying to draw a distinction between text uses and audio or video uses, and is using "print" and "electronic" without really thinking about Internet media. But it's not clear, and, if I'm right, it's a reminder that people's terminology hasn't fully caught up with the new media.

The Passion of the Easter Bunny: My friend Arvin Tseng points to this story:

A week ago Saturday, about 250 residents of the community settled into their seats at Memorial Stadium, expecting a local version of an Easter play.

Depending on whom you talk to, what the audience got was either a sadistic torturing of the Easter Bunny or a lesson in what Easter is really all about.

Both sides agree that various performers explained to the Easter Bunny the death of Jesus and what he endured, using streamers to portray how Jesus was whipped, and either plastic eggs or something else to depict stoning.

From there, the stories differ a bit.

Non-church members called the performance disturbing to smaller children, who cried when they saw the bunny being "whipped" and eggs trampled or thrown at him. Then, they said, performers shouted that there is no Easter Bunny, causing further trauma to the children. . . .

Church members, however, said the whole thing was overblown.

They said the bunny was not whipped or chased. The performance simply showed how Jesus was crucified. Only about a dozen children were upset, they said. The rest understood it to be a play. . . .

Please save us from ourselves, Ms. Legislator! News.com reports:

A California state senator said Monday she was drafting legislation to block Google's free e-mail service "Gmail" because it would place advertising in personal messages after searching them for key words.

"We think it's an absolute invasion of privacy. It's like having a massive billboard in the middle of your home," said Sen. Liz Figueroa, a Democrat from Fremont, Calif.

"We are asking them to rethink the whole product," she said.

In late March, the Web search giant announced plans to launch Gmail--a service that would offer users 1GB of free storage, more than 100 times the storage offered by other free services from Yahoo and Microsoft.

But in return for the extra storage, users would agree to let Google's technology scan their incoming e-mail, then deliver targeted ads based on key words in the messages. For instance, a user receiving a message about a friend's flu symptoms might also receive ads for cold and flu remedies. . . .

     Uh, and if I agree to have a massive billboard in the middle of my home -- in exchange for a discount on some service that I'd like to buy -- what exactly is wrong with that? People have lots of options in e-mail services. Google is offering one extra option, under which users would voluntarily surrender their privacy in exchange for some goodies. Why should users be spared from that?

     Presumably Ms. Figueroa really doesn't want anyone other than the recipients looking at her e-mail, even if that's a computer program that doesn't report the contents to anyone but just tailors advertising to her. In that case, I have an innovative surprising high-tech patent-pending solution for her . . . don't use Gmail! But if some people think it's just fine to have Google tailor advertising based on the contents of their message, why should she stop them?

     I realize that there are sometimes plausible arguments for saving people from their own folly; I don't always agree with them, but I respect them -- for instance, if their folly seems likely to get them killed (consider bans on dueling, seat belt laws, and the like), or likely to get them addicted and thus drastically diminish their ability to undo their error (that's a common justification for bans on certain drugs), or likely to seriously harm others as well as themselves.

     What's striking about this proposal is how utterly inapplicable those arguments are here. The Nanny State (or, at this point, one of its directors) is trying to save us from the irreversible, appalling horror of getting custom-tailored advertising based on the context of our e-mail. We're in trouble indeed.

UPDATE: A couple of people suggested that the bill might be trying to protect senders from gmail's learning things about them. But as best I can tell from press accounts, gmail would only be connecting information about a gmail user's e-mail with that gmail user, and using it to market to that gmail user.

     When I send a message to someone, I understand that the person might report its contents to others, which is why I'm often quite cautious with confidential e-mail; so even if gmail somehow associated this information with my name, and then either used that to market to me or publicized that information, I'm not sure how much of a legitimate objection I would have to that. But there at least there'd be serious room for debate. If, however, my understanding is right, then my messages to a gmail user are not associated with me in the gmail output -- they're just associated with the gmail user. And if the user agreed to that, I see no grounds for me as the sender to complain.

More on Free Speech in Canada: While Canadian authorities are busily penalizing speech critical of homosexuality, Daniel Pipes reports that Mohamed al-Asi recently presented a speech at York University in Toronto (sponsored by Muslim, Middle Eastern and Pakistani student groups) accusing the "Jewish Lobby" of responsibility for the 9-11 attacks. As blatantly false speech intended to promote hatred against a specific group, al-Asi's talk seems to clearly run afoul of Canada's hate crimes laws.

Of course, I believe that such liberal societies such as the U.S. and Canada should tolerate such speech, because the government cannot be trusted with the power to draw the line between acceptable and unacceptable speech. But if hate speech laws are to exist, they must be enforced in a strictly neutral way, so that they are less likely to become a political tool of the powers that be. Moreover, certain groups that support such laws will do so much less enthusiastically, if at all, once they recognize that their own freedom of speech will also be in jeopardy. So, is al-Asi under arrest, or at least under investigation, and if not, why not?

NYT on DDT - Better Late than Never: This Sunday New York Times magazine story, "What the World Needs Now Is DDT" has sparked lots of comment. The story points out that DDT is arguably the most important tool for fighting malaria in the developing world. A recent Cato Institute paper makes the same point (as does Africa Fighting Malaria). Of course, regular readers fo this blog have known about the benefits of DDT for quite some time. I blogged about on DDT nearly two years ago here. As I posted at the time:

What lessons should we draw from DDT? I think there are several. First, DDT, like most chemical substances, is reasonably safe when used responsibly, and harmful when used indiscriminately. Second, doing without DDT is relatively easy in wealthy countries like the United States, as we can afford alternatives. Doing without DDT in many poorer countries, however, means that people die. Third, the story of DDT illustrates the trade-offs that are inherent in most environmental policy questions. Pesticide use (or overuse) can cause environmental harms, such as the decline of bird species due to DDT. The prohibition of pesticide use can mean the loss of habitat or, in the case of DDT, a resurgence of malaria. It is not clear to me why good environmentalists must be more concerned about the former than the latter.

Of course, DDT is not without its downsides. In the United States, there is a strong case that DDT use threatened several species of birds (see here and here). This merely reinforces the point that trade offs are ubiquitous in environmental policy.

The New York Times Needs A Lesson on The First Amendment: The Times closes an editorial today on Justice Scalia's apology as follows:

Justice Scalia's apology is welcome. Most unwelcome, though, and offensive to the First Amendment, was his suggestion that he retains a "First Amendment right" to bar audio and visual coverage of his public speeches by the electronic media. There is no such right, as any person charged with safeguarding America's cherished free speech rights should easily see. With due respect, Justice Scalia, this is about something larger than being camera shy.

Justice Scalia has no obligation to give any public speeches. A fortiori, he has the right to condition his willingness to speak at a given venue on the absence of audio and visual coverage. (Edit: Of course, Justice Scalia could not stop a t.v. or radio station from airing footage of one of his speeches, if they acquire it. But he certainly could refuse to go ahead with a talk if he sees microphones or t.v. equipement present.)

Though I think Justice Scalia could bend a bit on this issue, I do like the fact that the Justices' relative anonymity allows them to live more or less normal lives. I once stood in line in back of Justice Ginsburg and her husband at a Gilbert & Sullivan production in D.C. (To her great credit, she did not pull rank to either avoid the line or get particularly good seats.) There must have been federal marshals somewhere, but I didn't notice them. We already have an Imperial President and an Imperial Congress. We don't need an Imperial Judiciary, too.

UPDATE: My understanding of the Times' editorial was that the editors were implying that Scalia had some sort of legal obligation to the public, as a government official, to permit t.v. and radio to rebroadcast all or excerpts of his public appearances. I have heard such an obligation, in fact, discussed in terms of the public's "First Amendment" right to know. I pointed out that in fact Scalia has no obligation to speak to the public at all, and thus cannot be under any obligation to speak when radio or t.v. equipment is present. A rule forcing him to speak under such circumstances would, in fact, violate the First Amendment. Thus, despite the objections Eugene notes in his post above, I maintain that Scalia is technically correct that he has a First Amendment right not to speak on radio or television. The accent should be on the "to speak", not on "the radio or television." He certainly has the contractual right to require that his hosts ban t.v. and radio equipment from his speaking venues. This contractual right is in the service of his First Amendment right to speak when, where, and under the conditions that he has voluntarily agreed to.

Light blogging and conference advertising: Blogging will be low, and responses to blog-oriented e-mails will be slow or nonexistent, until I'm through the next several weeks of conferences-- especially this one:"Colonialism and Its Legacies," the 2004 Annual International Meeting of the Conference for the Study of Political Thought, will be held April 23-25, 2004 at the University of Chicago's Gleacher Center in downtown Chicago, 450 North Cityfront Plaza Drive.

Special note to those who will be attending the APA Central annual meeting that weekend: the Gleacher Center is within walking distance of the APA conference site. Please drop in for a panel or three!

Scalia and the Fourth Amendment: Justice Scalia really ought to apologize to the reporters whose recordings of his speech were illegally seized and erased by federal marshals. I know that Scalia did not ask or authorize the marshals to do this, but they were acting on his behalf, in an attempt to enforce with his anti-recording policy. It would be a gesture worthy of a man of his stature.

UPDATE: It turns out that Scalia already has apologized. Good for him!

Jeff Jacoby on the 9/11 Commission: I haven't been following this issue closely, but Jacoby seems to make some pretty good points.

Canada: A "Pleasantly Authoritarian Country": Picking up on a theme expressed on the Volokh Conspiracy and elsewhere (and citing my You Can't Say That!), John Leo notes the growing threat to freedom of speech from antidiscrimination legislation in Canada. (Via Instapundit) In particular, Canada, joining many of its provinces (and several European countries), is on the verge of making public criticism of homosexuality a crime.

Fifteen years ago, when I was in law school, supporters of hate speech rules argued that there were no slippery slopes, that Holocaust deniers' and pornographers speech could be restricted without damaging the First Amendment. In Canada, they started making exceptions to their constitutional guarantee of freedom of speech just fifteen years ago. Those cases involved Holocaust deniers and pornographers, and now it's illegal to quote biblical condemnations of homosexual acts. No slippery slopes, indeed.

Volokh beats North Korean tyrant: Well, in a limited venue, as Steve Sachs reports:

Nowadays, North Korean dictator Kim Jong Il is primarily known for his reclusive nature, his pursuit of nuclear weapons, and his tyrannical rule of a famine-ridden gulag state. But those who know him well also know him as something of a film buff. In fact, in 2001, he published a book of criticism, On the Art of Cinema, which you can buy at Amazon.com. I haven't had the pleasure of reading it yet, but here's an excerpt from the preface:
The cinema is now one of the main objects on which efforts should be concentrated in order to conduct the revolution in art and literature. The cinema occupies an important place in the overall development of art and literature. As such it is a powerful ideological weapon for the revolution and construction. Therefore, concentrating efforts on the cinema, making breakthroughs and following up success in all areas of art and literature is the basic principle that we must adhere to in revolutionizing art and literature.
Unfortunately, On the Art of Cinema hasn't sold very well thus far, with a disappointing sales rank of #455,145. Kim's other critical work, Kim Jong Il on the Art of Opera: Talk to Creative Workers in the Field of Art and Literature September 4-6, 1974, ranks even lower at #789,855. And his real potboiler, Our Socialism Centered on the Masses Shall Not Perish, reached only a paltry #1,060,827.

What kind of showing is that for the absolute leader of a totalitarian state? Where are the mass purchases, the sycophantic reader reviews? Which faceless apparatchik has fallen asleep at the wheel? (I was tempted to buy a few copies, just to help the poor guy out, but decided that I could find better uses for my money than supporting the concentration camps.)

In a strange twist of fate, Kim's literary success has now been eclipsed by that of UCLA professor Eugene Volokh, whose Academic Legal Writing (which I purchased in the course of revising my thesis) now ranks at a healthy #2,118.

Which should just go to show you: in the fight between the friends and enemies of freedom, the bloggers will always win.

Hear, hear!

Things best left not reported to the police: From the Cameron Herald (Texas), via Vice Squad:

[L]ast Friday evening[,] a man walked into the [police] department to report that a woman had stolen his crack cocaine. . . .

[Police officer Philip] Anelli said the man told him that he and a woman were riding around when he decided to pay for two rocks of crack cocaine. The man planned to smoke one of the rocks and give the other to the woman in exchange for sexual favors. The plan was apparently moving along fine, until the woman smoked both rocks and then ran off without giving up any favors.

Angry, the man went to the police department to turn the woman into the police. . . .

The police pointed out to the man that if his story panned out, both he and the woman would be in pretty serious trouble; "the man weighed his options, then told authorities that he felt like he and the woman could work out the problem on their own, without help from police."

Rockin' Book Tour Enters Home Stretch: The Rockin' Book Tour for Restoring the Lost Constitution is drawing to an end. This week I go to Notre Dame. Next week to the Pacific Northwest.

This week:
Thursday 4/15:
South Bend, Indiana
Notre Dame law school (1:00pm, Moot Courtroom)

Next week:
Monday, 4/19:
Eugene, Oregon
Universtity of Oregon law School (noon, Room 142)
Portland, Oregon
The Cascade Institute & The Portland Federalist Society Lawyers Chapter (5:30- 7:00pm, Details here [RSVP requested])

Wednesday, 4/21:
Seattle, Washington
University of Washington law school (12:30pm, William H. Gates Hall, Room 133)
Puget Sound Lawyers Chapter and the Seattle University Law School Chapter of the Federalist Society (6:00-7:30pm, Details here [scroll down])

"The Americans Are Jews": Boston Globe:

The 70,000-member police force the US-led coalition has sought hard to promote collapsed in disarray in many parts of the country. Hundreds of police officers and members of the Iraqi Civil Defense Corps quit during the fighting, as barracks and police stations were taken over by militias. Many switched sides and fought US troops.

In Shuala, a Shi'ite suburb of Baghdad that saw fierce fighting between Sadr's militia, the Mahdi Army, and US troops last week, police officers pulled up to the Sadr office in pickup trucks throughout the day to get instructions from the clerics.

"We are policemen, yes, but also Mahdi. And the Mahdi is stronger," said Natik Hussein, a 21-year-old policeman busy taping a poster of Sadr to his police truck as his colleagues played with the siren, turning it on and off. "Sadr is the ultimate authority. The Americans are Jews."

There have been no Jews to speak of in Iraq in this man's lifetime, yet the Jew nevertheless plays in his mind the traditional role of the malevolent outsider, the usurper, the follower of false authority, the evil force against which petty demagogues and thugs of all stripes can organize their militias. If Jews didn't exist, the Hitlers, Stalins, and Saddams of the world would have to invent them, as Sadr and his followers, in effect, have in their own context.

Sunday Song Lyric: While we're on the subject of great songs popularized by someone other than the composer, I thought it appropriate to post one of my absolute favorites: "Crazy." This song was one of Patsy Cline's greatest hits, but she did not write it. Rather, the lyrics were penned by Willie Nelson. Not being much of a country music fan (Patsy and Hank are exceptions), I've always found this a bit surprising. "Crazy" is a great song nonetheless.

Crazy, I'm crazy for feeling so lonely
I'm crazy, crazy for feeling so blue
I knew you'd love me as long as you wanted
And then someday you'd leave me for somebody new
Worry, why do I let myself worry?
Wond'ring what in the world did I do?
Crazy for thinking that my love could hold you
I'm crazy for trying and crazy for crying
And I'm crazy for loving you
Crazy for thinking that my love could hold you
I'm crazy for trying and crazy for crying
And I'm crazy for loving you.

Song Lyric Revisited: One reader takes me to task for omitting the poignant prologue to last week's song lyric, Cole Porter's "Every Time We Say Goodbye":

We love each other so deeply
That I ask you this, sweetheart,
Why should we quarrel ever?
Why can't we be enough clever, never to part?

The ever-vigilant James Lindgren also found it "odd" that I suggested Ella Fitzgerald "helped make famous" songs by Porter and Duke Ellington. My point was not that either Porter or Ellington toiled in obscurity prior to Ella's recordings of their work. To the contrary, I noted that each man's body of work extended far beyond the songs she recorded or otherwise performed. Rather, my point was that her recordings popularized much of each composer's work. Indeed, I suspect that Ella's renditions define some Ellington and Porter songs for many, particularly today. In any event, Prof. Lindgren passed along this link to more on Ella's recordings of the Duke Ellington and Cole Porter songbooks.

LadyKillers & Bob Jones University: I just saw the Coen Brothers' latest film, The Ladykillers. Although a remake of an older film, it retained the quirky Coen feel. One particularly odd touch: an elderly, chuch-going and morally upright African-American woman who sends monthly checks to Bob Jones University. As this was a Coen production, I suppose the reference to that infamous school was deliberate, but it was odd nonetheless.

Which one is it? When you talk with this woman in person, she refers to asymmetric information, not "asymmetrical" information. My dictionary lists the choice as optional, she could have called her blog Asymmetrous Information as well, though that is archaic. Here is her excellent post on health care, from a few days ago.

Student writing gets noticed: Eric Soskin (Per Curiam) reports:

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

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

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

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

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

Daily constitutional: I'm with Will. This question from Milbarge at Begging the Question is too easy.

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

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

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

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

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

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

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

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

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

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

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

Easter Peeps: Slate's Explainer says that 700 million Peeps will be eaten this year.

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

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

I know this is a minor point, but... It really aggravates me.

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

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

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

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

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

Obscenity and spam: One correspondent suggested that a porn crackdown is needed because of the prevalence of porn spam:

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

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

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

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

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

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

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

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

Religious hate crimes: The Daily Ablution has an interesting report on how the Times (London) is reporting religious hate crime statistics. The facts from the British government report:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the abstract:

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

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

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

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

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

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

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

     So we have three possible outcomes:

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

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

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

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

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

     So we really have three options:

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

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

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

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

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

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

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.

Wednesday, April 14, 2004

Tuesday, April 13, 2004

Monday, April 12, 2004

Sunday, April 11, 2004

Saturday, April 10, 2004

Friday, April 9, 2004

Thursday, April 8, 2004

Wednesday, April 7, 2004