Another Bushism, this one from the Financial Times, debunked, by my former student, Raffi Melkonian:

My favorite newspaper, the Financial Times, enjoys its forays into the land of Bush-isms . . . . Here's today's entirely misguided effort in the admittedly lighthearted "Observer" column:

Where's the beef?

George W. Bush is proud of his "No Child Left Behind Act". But one problem with the policy is it provides no help for children left behind years ago -- like Bush himself.

In Minnesota on Monday, Bush did his best to show off his knowledge of geography and science: "I shared a story the other day during a press conference where I talked about a dinner I had with Prime Minister Koizumi of Japan. And we're eating Kobe beef."

So far, so good . . . until: "I don't know whether it's grown here in Minnesota or not, but it's real good."

Hold on Mr President, Kobe beef grown in Minnesota? It's a good thing those Japanese cows can't vote.

Of course, if the "Observer" had stopped revelling in his or her own intellectual superiority for more than a second, he or she would have noticed that Kobe beef may not be produced in Minnesota, but it definitely is in Idaho, Nebraska, Oregon, and a whole host of other states throughout the country. Yes, of course -- true Wagyu Kobe is from Japan. But that's neither what the President said or meant . . . .

     Good point; but what's more, if you look at the transcript, it seems clear that the very reason Bush mentioned Kobe beef is that he knew that it's originally a Japanese dish. The line is an aside in a speech that has nothing to do with beef. It's obviously a little joke (not very funny, I realize) of the tie-the-story-to-this-occasion variety; there's just no other possible explanation. Given this, why would Bush mention that he doesn't know whether the beef is from Minnesota? Either it's also a gag (these days, you can have Kobe beef from Minnesota just like you can have Chryslers assembled in some foreign country), or it's another attempt to tie the story to the location. It's certainly not confusion about whether Kobe beef is or is not originally Japanese.

     So another failure of the "Bushism" genre -- a genre that's prone more to showing errors on its authors' part than on Bush's part.

UPDATE: Two readers pointed out that the italicized "grown," and the reference to "knowledge of . . . science" suggest that the Financial Times is making another point besides Kobe beef being Japanese -- that beef isn't grown but rather (presumably) raised. On reflection, I agree that the article must be making that point; but I missed it because it's such a stretch. My New Shorter Oxford defines "grow" as, among other things, "produce (plants, fruit, wool, etc.) by cultivation," which clearly covers animal products, and beef presumably as much as wool. The American Heritage defines "to raise" as one definition of "to grow." A LEXIS search found a bunch of examples of "grow beef" (in Bush's sense of raising cows, not just in the narrower sense of making cows bigger). There's just nothing wrong with Bush's statement.

FURTHER UPDATE: Reader Bruce Holder wisely suggests a google search for "beef growers," which finds references to the the Natural Beef Grower's Network, the Southern Beef Growers Cooperative, a headline in Iowa Farmer Today (it's attached to an AP story, but I believe the headlines are typically written by the newspaper, not the wire service), and more.

Michael Kinsley will head L.A. Times opinion and editorial section: So says Editor & Publisher. I think Kinsley did a very good job as founding editor of Slate -- and, in particular, welcomed a wide mix of political perspectives, including the unorthodox -- so I'm quite pleased by this move.

Debra Saunders on the New York Times and Jose Padilla: Here's an excerpt from her piece in the San Francisco Chronicle (thanks to How Appealing for the pointer):

[H]ere's the paragraph in the story by [New York Times] reporter Deborah Sontag that truly baffles me: Padilla's "journey covered significant territory, geographically, emotionally and spiritually, and family and friends paint a vivid picture of Jose Padilla. If he lived a double life, they were unaware of it. And the American government has said so little beyond its initial, startling allegations about Mr. Padilla that it is difficult to reconcile the two portrayals -- the man his relatives thought they knew and the man the government calls an enemy of his homeland."

What's difficult to reconcile? Where is the good Jose Padilla that is supposed to balance the bad? When he was young, Padilla was a thug [committing a brutal armed robbery, brandishing a gun in a fit of road rage, and attacking a prison guard]. After he found God as an adult, he was a heel [getting engaged to an Arab woman while he was still married to his American wife, who only learned of the betrothal through a friend]. Whether he's guilty of plotting to set off a dirty bomb, I don't know, but Padilla's biography certainly raises questions that beg for answers. . . .

Other errors by Washington Gov. Locke: The same story contains the following:

Locke delivered a free-ranging speech that also . . . said the federal Patriot Act reminded him of the internment of the Japanese during World War II. . . .

Locke also criticized the Patriot Act approved in the aftermath of Sept. 11. Apparently referring to detainment of suspected enemy combatants, he said the law reminds him of the internment of Japanese-Americans during World War II.

     Well, if the reporter interpreted Locke correctly, then Locke is badly wrong. First, the detention of suspected enemy combatants, whether the Guantanamo detainees or Padilla and Hamdi, is pursuant to other authority, not the Patriot Act, which says nothing about such military detention.

     But second, and much more importantly, even if Locke used "Patriot Act" as highly imprecise (though recently quite common) shorthand for "the Bush administration's policies," the military detention is vastly different from the internment of Japanese-Americans. The Japanese-Americans were interned because of their race (some of them were Japanese citizens and thus enemy aliens even if they lived here a long time, but the policy applied even to nativeborn citizens of Japanese descent). The military detainees are being interned because the government has specific reason, quite unrelated to their race (Padilla is Hispanic, not Arab) to believe that they are enemy soldiers.

     It is conceivable that the reporter misunderstood Locke, and that Locke was referring to sec. 412 of the Patriot Act, which makes it easier for the government to detain, before deporting them, noncitizens who are suspected of terrorist activity or other illegal or dangerous conduct. (I think it's less likely that this is what Locke meant, given the newspaper account, and given that the section has gotten much less publicity than the military detentions have -- if Locke had been referring to that section, then I suspect he would have realized that he had to more specifically explain what he was talking about.) But again this is very different from the detentions of Japanese-Americans: It applies to citizens as well as noncitizens, and it's triggered by specific suspicion of misconduct.

     One can criticize the government's detention policies on various grounds; as blog readers are aware, I think the government's position in the Padilla case, for instance, is probably mistaken. But the analogy to the Japanese-American internments is just wrong.

Washington governor urges judges not to drink in public:

Gov. Gary Locke, in a valedictory to the judiciary, on Monday urged judges to take the pledge against drinking in public -- or at least to hold themselves to a single drink.

Locke advocated a "stringent and even harsh standard of conduct," which he said could apply to all elected officials, as part of his prescription for building public confidence in the courts. . . .

Locke said public drinking undermines public confidence in judges. . . .

Even a single drink at a cocktail party or restaurant can set tongues wagging, so it's best to not drink in public at all, or "adopt a rigid one-drink rule," said Locke, a teetotaler.

Locke said later he was also thinking of the numerous legislators who have gotten nailed for drunken driving.

"It hurts everybody" when a judge, lawmaker or any public official is nabbed, he said. . . .

     "Even a single drink at a cocktail party can set tongues wagging"? Well, maybe a single drink followed by dancing with a lampshade on one's head -- but I find it hard to believe that a single drink alone will do it.

     I'm fully aware of the harms that drunken driving, and drunkenness generally, causes. But setting up these sorts of rules -- which will then naturally lead to all sorts of tangential complaints about supposed "appearances of impropriety" -- are hardly the way to solve it. Most adults can handle drinking at social functions, and even drinking more than one drink. Those that can't handle it shouldn't drink. But the existence of that minority shouldn't require the responsible majority to become public teetotalers, whether they're judges or not.

     Thanks to How Appealing for the pointer.

Contagiousness: Responding to my "how contagious am I?" post, reader Bob Woolley writes that what I hoped for -- a home test that would "somehow objectively measure just how contagious one is likely to be -- perhaps some sort of quickie home saliva test or some such" is unlikely to be available soon. But here's what he suggests:

But you have a pretty good qualitative assessment built in: your level of contagion (for ordinary colds, anyway) is proportionate to the amount of (pardon me) goo you're producing. The virus wants nothing other than to reproduce and spread itself. It does this by stimulating the formation of respiratory mucus loaded with copies of the virus, and by stimulating coughing and sneezing, to disperse droplets of that mucus. You could probably make a decent gauge of a person's infectiousness by weighing the used tissues produced in an hour. . . .

He also wrote that this still holds true even when one's goo output is reduced by taking cold remedies:

To whatever extent they reduce goo production and expelling, they reduce your contagiousness. . . .

More on anti-Americanism in the Middle East: Jeff Jacoby has a good column on this.

A sobering data point on actuarial projections: The tables I mention below are fascinating, and I suspect generally highly reliable. Still, check out this table, and explain to me how anyone could possibly make remotely plausible projections about future rates of death. The projections about changing rates of death due to violence are particularly laughable -- though we can probably predict that trauma care will keep improving, we have no idea how homicide will fluctuate. But even projections about death due to heart disease, cancer, and the like can't possibly be right for more than a few years out; who knows what sort of medical care improvements we'll see in the coming century? If anyone is relying on these projections, especially out to 2040 and the like, they're living in a fantasy.

Cool data on life expectancy: Mary Campbell also points to some cool tables available from the Social Security Administration. Check out the data here and here, for instance, to observe how infant mortality has plummeted.

UPDATE: Some helpful details, again from Mary Campbell:

In the blog item linking the SSA tables, you might want to indicate which column to look at, and what each column means.

q_x = one-year probability of death at age x
l_x = expected # of people alive at age x, given starting 100K people at birth
d_x = expected # of people dying from age x to x+1, in the population starting with 100K people at birth (obviously, l_(x+1) = l_x - d_x and d_x = q_x * l_x -- there's a lot of redundancy in the mortality tables. These might not work out exactly on this table because of rounding.)

L_x and T_x are somewhat complicated, and I'd rather not explain them.

e-circle_x = average number of years left to live from age x

In any case, you see that 737 babies dying in 2000 vs 14,596 dying in 1900 before their first birthdays for boys, and a similar drop in mortality for girls.

By the way, you can't simply average the rates for boys and girls, or the life expectancies, because naturally (without sex-selecting abortions) more boys are born than girls. I think the natural ratio is 104 boys to 100 girls, or something like that. I don't have those stats at hand. Once I found an article about how the ratio has changed in places like China... in some areas, where the one-child doctrine is strictly enforced, the ratio can get up to 1.3 to 1, I think. Not very pleasant to think about. Especially as Americans and others are adopting abandoned Chinese girls... But that's an entirely different issue.

More on life expectancy: Reader Mary Campbell, an actuarial assistant in New York writes, based on Social Security Administration tables:

There are two types of mortality tables available -- cohort and calendar year. Using the 1900 cohort tables, I find the following probabilities (and life expectancies) (my table does not include mortality before age 5, as early childhood mortality is difficult to get accurate reports on -- this is true even today, as many babies are reported as stillborn in other countries who would be counted as born alive here, as we've got neonatal intensive care units to try to help these children survive...):

We usually report life expectancy as additional years to live, but to make it simpler, I will report on total lifespan.

For a 10-year-old girl born in 1900:
The lifespan expectancy is 71.5 years
Median lifespan is 77 years.
She has a 25% probability of reaching age 87.

For a 10-year-old boy born in 1900:
The lifespan expectancy is 65.5 years
Median lifespan is 69 years.
He has a 25% probability of reaching age 80.

---

For a 10-year-old girl born in 1950:
The lifespan expectancy is 81.3 years
Median lifespan is 85 years.
She has a 25% probability of reaching age 92.

For a 10-year-old boy born in 1950:
The lifespan expectancy is 75.3 years
Median lifespan is 79 years.
He has a 25% probability of reaching age 87.

----
For a 10-year-old girl born in 2000:
The lifespan expectancy is 85.3 years
Median lifespan is 88 years.
She has a 25% probability of reaching age 95.

For a 10-year-old boy born in 2000:
The lifespan expectancy is 80.4 years
Median lifespan is 84 years.
He has a 25% probability of reaching age 91.

Now, there are some things being captured here and some things not. Improvements in women not dying from childbirth, improved nutrition, better medicine, and less cigarette smoking may all be involved. The Society of Actuaries does general mortality studies often, to see which factors have had the largest effect -- the 1900 cohort would have been impacted by WWI and the Spanish flu outbreak and infectious diseases in general. We pretty much have the complete mortality table for the 1900 cohort now (excepting a few stragglers). The 1950 and 2000 cohort tables are obviously made on model projections for ages past 53 for the 1950 cohort, and for almost all of the 2000 cohort. Time will tell if obesity, diabetes, cardiovascular disease, cancer, and what have you will have a large mortality effect. The main difference is that unlike infectious disease, these conditions do not kill the young as often. Then there is the issue of improved medicines for counteracting horrible lifestyles.

Notice the gender gap is closing for mortality, and some of it may be due to "stupid stuff" guys do in early adulthood, as well as the "protection" -- whether hormonal or otherwise -- pre-menopausal women get. If you look at age 65 men and women, the life expectancy gap narrows from about 5 years seen above to about 3 years.

I've also got those "calendar year" mortality tables you were wondering about, and those are what give the horrible life expectancies. These are harder to interpret, because they just capture the mortality for each age for the year 1900. That mortality structure does not persist past that year (okay, maybe for a few more years). So if I plug in a 10-year-old girl to the 1900 calendar year table, I get a lifespan expectancy of 61.1 years! Ten years less than the cohort table! But that's assuming it will be 1900 every year.

In the lifetime of that 10-year-old girl (should she survive the Spanish Flu in adulthood), sulfa drugs will be discovered, as will antibiotics. The Pure Food and Drug Act will be passed. With manure-spread roads going away with the advent of cars, the water actually becomes cleaner -- less cholera or dysentery, which killed quite a few of the young and elderly. Vaccination becomes widespread. Public sanitation improves.

So the life expectancies reported are much more pessimistic than actuality, even if you skip over the huge childhood mortality period, which greatly drops around age 10. . . .

I got the tables to do the above calculations from the Office of the Chief Actuary of the Social Security Administration (he's got a website, with all sorts of studies and projections). The Society of Actuaries also has tables (soa.org) as does the American Academy of Actuaries (actuary.org).

Canadian lawsuit seeks coordinates of Weblog comment authors: CalBlog reports:

Ted Franks has filed a petition in Montreal, Quebec, seeking the identity of various commenters on the Infotel thread. I was served by registered mail. I got the slip last night and picked it up this morning. The hearing is Friday. Did I mention in Montreal, Quebec?

The full petition is attached. I don't know if there's jurisdiction over me in Canada but my litigator's basic instinct says that I lose any right to complain of jurisdiction if I respond in substance. Plus, they want names addresses and phone numbers, none of which I have. So my immediate reaction is to not respond. . . .

The post includes the text of the Canadian motion to compel the production of the posters' names. Note that, despite the similarities in the names, La Canada is pretty far from Le Canada.

Names: Those who think that it is only in recent years that people have started giving their children unfortunate names (such as Latrina) -- and those who have complained that their own names are unpleasant -- should check out this record from the 1880 Census. If you search here for the same first name, you'll find 20 more Americans with such a first name, plus one Canadian and one Briton.

     And of course think of how much more fun you can have with that search engine.

In Jesse Jackson's world, Yasser Arafat deserves to be embraced -- but the invasion of Iraq is a "crime against humanity," and "murder." The one thing that finally gave the Iraqi people the opportunity (we'll see if they can take advantage of it, but at least they have a chance) to have some semblance of democracy, human rights, rule of law, and freedom from ethnic and religious mass killing -- and this supposed "civil rights leader," and President Clinton's special envoy to Africa, thinks it's a "crime against humanity."

Exceptions for making fun of dictators: Jeff Jarvis (BuzzMachine) writes:

Among all the absurd, meddling, and stupid rulings from the FCC lately, this one really takes the Twinkie: The FCC fined a station for making a phony phone call to the real Fidel Castro -- and getting him on the line -- but not following commission rules about getting permission to put the person on the air.

InstaPundit seems to agree, suggesting that "There should be an exception for making fun of dictators" (though I'm not sure how serious he is).

     The FCC, though, is in a difficult position here. Though the government has (rightly or wrongly) broader authority to regulate over-the-air radio and television broadcasts than it has over newspapers, books, the Internet, and other media -- it may, for instance, restrict profanity, and require broadcasters to carry opposing views -- it probably does not have the power to impose viewpoint-based restrictions. I doubt that the government is constitutionally entitled, for instance, to ban songs that glorify illegal drugs (though in fact the FCC did do this in the early 1970s), or to require broadcasters to provide equal time for opponents of racist views but not for opponents of egalitarian views.

     Likewise, much as I sympathize with criticism of Castro, I don't think the FCC's broadcast speech regulations can discriminate in favor of this viewpoint any more than they can discriminate in favor of other viewpoints. So if one thinks that the FCC's general rule -- a broadcaster can't just call you and then unbeknownst to you publicly broadcast the conversation -- is generally sound, then the FCC can't make any Castro exception or dictator exception to that. (They might conceivably create a viewpoint-neutral exception for political humor, but that would be a pretty broad exception, probably broad enough to swallow a huge chunk of the rule.)

UPDATE: A couple of people suggested that the FCC could create a viewpoint-neutral exception for unauthorized broadcast of conversations with public figures. I think such an exception would be constitutional, but again I suspect that many supporters of the basic rule would oppose it. If you think that it's dishonest to surreptitiously broadcast your phone conversations with people, then I suspect you'd think it's dishonest even when it's done to, say, a local politician, a prominent scholar, a well-known movie star, and the like. That the person is a public figure might make something of a difference, but I doubt that it would make enough of a difference to change the proper outcome. I can certainly understand why the FCC would be hesitant to create such an exception.

"Religious Fanatics, Out To Impose Their Morals On The American Public": Clayton Cramer has the details:

Since 1983, with the formation of Eco-Justice Working Group, the National Council of Churches has been providing an opportunity for the national bodies of member Protestant and Orthodox denominations to work together to protect and restore God's Creation. A major task of our environmental ministry is to provide program ideas and resources to help congregations as they engage in environmental justice. . . .

Christian Leaders call on Bush to protect God's gift of Air

In a letter to President Bush released on Earth Day, more than 100 national and state leaders of the National Council of Churches expressed moral concern over the President's stewarship of the environment -- particularly on the Administration's "clean air" policies and its implications on public health. . . .

     I rather doubt that many people who regularly criticize conservative religious groups for "mixing religion and politics" will criticize these religious groups for doing so. Most people would, I think, conclude that it's generally quite proper for religious people and organizations to seek bans on conduct that they see as immoral and harmful to people and to the Earth, just as it's proper for secular people and organizations to do the same.

     Now naturally one can still disagree with the specific agenda of the groups: One might, for instance, think that the environmentalists' claims are morally unsound, just as one can think that pro-life forces' arguments that fetuses should generally have the right not to be killed are morally unsound. And one can also believe that these sorts of religious arguments might be unpersuasive.

     But I doubt that one would say that there's something per se improper with the National Council of Churches -- as opposed to the Sierra Club -- urging that its views on the environment be implemented in government action. And if that's so, then the same would, I think, apply when churches urge that their views on fetal rights be implemented in government action.

Blogging, the academy, and adjuncts: The Chronicle of Higher Education has a good piece on the late Invisible Adjunct blog, its anonymous author, blogging, the academy, adjuncts, and more. Thanks to Ralph Luker for the pointer. (I'm told that the Chronicle piece should be available for free for five days.)

Life expectancy: As I mention in the post immediately below this one, I much liked Radley Balko's TechCentralStation piece. I do think, though, that this line falls into a common error:

But I doubt that Easterbrook longs for the early 20th century, when 45% of American laborers toiled in the fields -- and most of them could expect to live all of 47 years.

If life expectancy is 47 years, this does not mean that most American laborers could expect to live "all of 47" years. First, it means that the average lifespan of Americans born in 1900 was 47 years. If the 47 years were the median lifespan, then half of Americans could expect to live 47 or more years, or alternatively half of them could expect to die by age 47 (setting aside the tiny fraction that would live exactly 47 years, on the dot). This is already not quite the same as "most of [Americans] could expect to live all of 47 years."

     But the 47 years is the average, and since there are many more people dying on the far left end of the age distribution curve (near age 0) than on the far right (near age 94), the average is biased downwards from the median, and thus the median is likely to be considerably higher than the average. (Simple, because oversimplified, example: If in a group of 10 people, 3 die at age 1, 4 die at age 50, and 2 die at age 60, and 1 dies at age 90, the average lifespan is 41.3 years, even though the median is 50 -- because more people die on the far left of the curve than on the far right, the average [41.3] is less than the median [50], and considerably more than half the people live to the average [41.3] age.) Thus, considerably more than half of all Americans born in 1900 would have lived to be over 47.

     (Note also that the 47-year figure, like most life expectancy figures, asks how long people born in 1900 would have been expected to live on average. It doesn't address what the quote literally refers to, which is how long people alive in 1900 would have been expected to live; I don't know of any sources for such a number.)

     Second, the life expectancy figures include the deaths of infants and children. Such deaths are tragic, of course, but infants and children aren't literally "American laborers toil[ing] in the fields." And even going beyond the literal, I think it paints a misleading picture to just cite a life expectancy of 47 picture when in reality we have very many children dying before age 10, but the survivors living on average until 60 or so.

     In fact, according to this data, Americans who survived until age 10 in 1900 did have an average lifespan of about 60 years (the data is broken down by sex and race, so I don't have the precise numbers, but 60 is likely the rough average). Not great for those who survived childhood, and awful for the children who died young and for those children's parents -- but not quite as grim as having most of American laborers being expected to live all of 47 years. (I have no evidence on the lifespan of American laborers who toiled in the fields, but I imagine that the data there was probably not that much different from the data for the country at large.)

     In any case, this doesn't materially undermine Balko's piece, which I much like. But it is an important thing to remember whenever one hears life expectancy numbers.

UPDATE: D'oh! My original post had an error in the portion labeled "First," because I foolishly characterized the life expectancy as a median rather than a mean. I've corrected that portion; thanks to reader Brock Sides for pointing this out to me.

FURTHER UPDATE: Mike Anderson (Mere Dicta) has some more on this.

Why prosperity really is pretty good: Radley Balko forcefully critiques those who harp too much on prosperity's discontents, in particular focusing on those people who are making much of our supposed obesity, general unhappiness, and frustration flowing from having too many choices. Some closing paragraphs, which are perhaps a titch hyperbolic but still pretty sensible:

We don't need to slow the engines of capitalism down, we need to ratchet them up, so their drippings reach places like Chad, Nigeria and Cambodia. It would be awfully selfish of us to deny the third world the fruits of our development simply because we're bored with the excesses of comfort. We need more production, coupled with wide-open trade, to bring the burdens of wealth articulated by the free market's wet blankets to the people who long to bear them.

We should strive to saddle women who scavenge city dumps in Cambodia and fistulas sufferers abandoned for coyotes in Niger with the tyranny of mustard, the frustration of rush hour gridlock, and the aggravation of spam email. We ought to work to make Bangladeshi parents agonize over putting their hyperactive sons on Ritalin. We ought to see how many Malaysians we can get addicted to Paxil, and Papua New Guinean housewives to Valium.

When the critics of capitalism are reduced to mining the suburbs for languor and tedium, when consumers in market economies gripe not about scarcity or pollution, but about too many ketchups and self-check grocery aisles, perhaps it's safe to say that free-marketeers may finally have the central planners on the ropes.

Let's see how long we can keep them there, and how many of the world's poor we can infect with the afflictions of prosperity while we're at it.

More on Why do they hate us? Reader Adam Badawi writes, apropos my post on the virulently anti-Semitic libels being printed by Egyptian government newspapers:

As I am of partial Egyptian heritage I had a couple reactions to your post. First, the writer's comments are obviously bigoted and delusion. It saddens me when I read the anti-Semitic bilge that often comes out of the Arab press. Second, I think you are incorrect to suggest that these articles contribute to the Arab hatred of America and Jews. As you note in your post Al-Gumhouriyya is a government run newspaper. For this reason a lot of Egyptians mock this particular periodical for the farcical nonsense it produces. It is the mouthpiece of a corrupt and authoritarian regime and as a consequence it has a substantial credibility problem. I do not mean to downplay the animus that exists in the Arab world toward Israel and American policy, and to somewhat lesser extent toward Jews and Americans. There clearly is problem here -- I just don't think that government propaganda is the source of that problem. I have many more thoughts on these issues, but I also have a dissertation to finish in the next month so I'll have to stop here. . . .

I agree that we shouldn't assume that all of the anti-American and anti-Semitic feelings in the Middle East are caused by propaganda from government newspapers. But I suspect that they do indeed have something of an effect, certainly not on everyone, but on quite a few. Even if a lot of Egyptians mock Al-Gumhouriyya, quite a few others might be more open to its message. I of course can't be sure, since I'm not remotely an expert on Arab public opinion; and my correspondent might be much more knowledgeable about this. Still, it seems to me that these sorts of attacks are indeed likely to have an aggregate effect.

"Diaperless Babies Seen as Earth-Friendly Solution":

As environmentalists celebrate the 34th annual Earth Day, some in the green movement are now advocating "diaper-free" babies to help save the planet.

Citing concerns about plastic disposable diapers clogging landfills and the amount of washing and detergents that cloth diapers require, many environmentalists are taking a page from tribal cultures and seeking to eliminate the use of the baby diapers altogether. . . .

I'm hardly an expert on this, but my guess is that the presence of extra human fecal matter -- which seems likely to happen notwithstanding the claim that "[i]nfants give recognizable signs of imminent peeing and pooping [and] it's possible to learn your infant's signs" -- is more of an environmental burden, both from a quality-of-life perspective and a public health perspective -- than extra space being consumed in landfills. As with many things, I doubt that "tribal cultures" have much to teach us on this score.

Most dangerous jobs: Apropos my post below, reader Barry Jacobs passes along the data on the 10 most dangerous jobs, expressed in yearly job-related fatalities per 100,000 people:

Timber cutters 117.8
Fishers 71.1
Pilots and navigators 69.8
Structural metal workers 58.2
Drivers-sales workers 37.9
Roofers 37
Electrical power installers 32.5
Farm occupations 28
Construction laborers 27.7
Truck drivers 25

Source: Bureau of Labor Statistics; survey of occupations with minimum 30 fatalities and 45,000 workers in 2002

Of course, the Presidency would fall below the Bureau's thresholds.

Dangerous jobs: How many jobs in the U.S. can you think of where the death rate from homicide alone has been nearly 2%/person/year (nearly 10%/person, with an average job tenure of 5 years)?

     I suppose there might be some specialized high-risk military categories during wartime that fit this profile, as well as perhaps some high-risk civilian job categories in the pharmaceutical distribution and urban social club sector. But focusing on legal civilian occupations, I doubt that there are any -- other than the President of the United States, of course. As my friend Raquelle de la Rocha pointed out, imagine what this must do to his worker's comp premiums.

UPDATE: Some people dismiss the historical examples on the grounds that they were before modern Secret Service protection, and that these days the risk of assassination is much less. Of course, Secret Service protection may well make a difference, and it's impossible to predict such risks with any accuracy. But given that Presidents Ford and Reagan avoided being killed largely by chance -- even though, as best I can tell, they had a roughly comparable degree of Secret Service protection to what is available now -- I suspect that assassination will continue to be a serious threat to Presidents, at least unless they drastically cut back on their public appearances (which would be unfortunate, and right now seems unlikely).

A dissenting view on gay marriage, in the Washington Blade (cute name for the newspaper, no?).

Was Oppenheimer indeed a Communist? I am rationally ignorant on this subject, but those who are interested might check out this San Francisco Chronicle article. (Thanks to Dan Gifford for the pointer.)

Why do they hate us? Could it be partly because their governments are distributing material such as this? (From MEMRI, which to my knowledge is a highly credible source, quoting an article from the Egyptian government daily Al-Gumhouriyya by deputy editor Abd Al-Wahhab 'Adas; thanks to lawprof Michael Krauss for the pointer.)

"If you want to know the real perpetrator of every disaster or every act of terrorism, look for the Zionist Jews. They are behind all the violent and terror operations that have occurred everywhere in the world. [They do this] first of all in order to slap [the label of the attacks] on the Arabs and Muslims, and second to harm them, distort their image, and represent them to the world as terrorists who endanger innocents. What is even more dangerous is that after every terror operation they perpetrate, they leave a sign, clue, or traces meant to show that the perpetrators are Arab Muslims.

"Their most recent operation was the bombings in . . .

"It is the Jews, with their hidden filthy hands, who play their part with expertise in order to harm the Arabs and Muslims and to intensify hatred towards them. . . ."

"Actually, it is they who are behind the events of September 11. . . ."

And by "us" I mean both Jews and Americans, who are of course being directly and indirectly slimed by these attacks as well.

Moussaoui opinion: The Fourth Circuit's Mossaoui opinion seems like a significant, though far from complete, victory for Moussaoui, relative to what the government would have liked. Moussaoui is getting less by way of evidence from various military detainees than the district court said he should have, but he's getting a lot more than the government wanted to give him. (Thanks to How Appealing for the pointer.)

     I'm probably not going to blog much about the details of the case, because it's pretty complex and I'll have to run shortly. But I thought I'd note it, and mention that the lead opinion was written by Judge William Wilkins, a Reagan appointee, a partial concurrence-and-dissent (a bit more pro-government in theory, but not much in practice) was written by Judge Karen Williams, a Bush 41 appointee, and the more pro-Moussaoui concurrence-and-dissent was written by Judge Roger Gregory, a Clinton recess appointee who was reappointed by Bush 43.

     This lineup makes it somewhat more likely that the government will go along with the panel decision, and that the Fourth Circuit will not reverse it en banc. But my guess is that the government will nonetheless ask for en banc, and then ask for certiorari, assuming there are no procedural bars to certiorari at this stage. (Certiorari petitions are generally supposed to come after a final judgment, and this case is a long way from that; but there are quite a few exceptions to this general rule.) If there are indeed no procedural bars, I expect that the Supreme Court will then grant certiorari. Can any Supreme Court procedure mavens tell me whether the early stage of the litigation will indeed keep the Court from granting cert at this point? My inclination is to say that one of the exceptions would apply, but I'd like to hear more expert opinion on this.

Weisbergism of the Day: Here's today's Bush quote in Slate's Bushism of the Day, selected by Slate's editor, Jacob Weisberg:

"My job is to, like, think beyond the immediate." -- Washington, D.C., April 21, 2004

Here's a transcript of MSNBC Hardball, Dec. 30, 2003:

WEISBERG: But I think a bigger problem is really where [Dean] is politically. You know, right of the point we are in the campaign where he is close to being the nominee apparent, I would be -- I would think he would be reaching as hard and as quickly as he could for the center to try to moderate some of these extreme-sounding positions he has taken on the war and a bunch of other issues.

And here's one of Hannity & Colmes, Dec. 1, 1999:

WEISBERG: I think you're applying a little right-wing political correctness here. I mean, it's maybe an injudicious expression, but I don't think it adds up to anything, other than her making the point that political campaigns have traditionally been run by white men, not by black women, and that, you know, it's a first, it's like the first time (inaudible)... black mayor was elected in the city. I don't think it's a racist comment.

Here's one of NPR, Nov. 30, 2000:

Mr. WEISBERG: I think we are getting there in the last week of the campaign. You know, the first point to make about these Bush response ads is the one I think you were just getting at a second ago where you say don't actually respond to this Gore charge about the trillion dollars of Social Security money. . . . What he's hoping to do is change the debate from the issue to Gore's character and saying, in effect, in these ads, you know, 'You can't believe anything this guy says, so why would you believe this?' And that second ad does it in a sort of sarcastic way.

From CNN's Greenfield at Large, Aug. 6, 2001:

WEISBERG: Well, there is a little bit of a popular strain that says, you know, we have less to fear from an unintelligent President than from a highly intelligence president. He can't do as much to us if he wants to.

ABC News, June 30, 2002:

Mr. WEISBERG: But, you know, George, in some ways, I mean, the--the resistant to voucher choice has, I think, led people to believe that it's more of a solution than it is. . . . ["Resistant" may well be a transcription error. -- ed.]

Now I'm not trying to claim that Weisberg is generally inarticulate. His "you know"s, like some people's "like"s, are commonplace in people's conversations. Our oral comments are full of this sort of filler, and of grammar and usage errors of various sorts. Nearly anyone who has read a transcript of his own comments can tell you that.

     But given that articulate, thoughtful people like Weisberg say these sorts of things, where's the humor, the aptness, or anything else in finding instances of Bush doing the same?

UPDATE: Mark Liberman (Language Log), a linguistics professor at Penn, agrees.

The Confusion (by Neal Stephenson): Just finished, and thought it was excellent. I thought Cryptonomicon was fantastic; Quicksilver was quite good, and worth reading, but not nearly up to the level of Cryptonomicon. The Confusion was a good deal better than Quicksilver (though not quite as good as Cryptonomicon), and definitely worth the time and the money. It also makes Quicksilver work better in retrorespect; I expect that the entire trilogy -- Quicksilver, The Confusion, and the forthcoming System of the World -- will work much better if one reads them together (all 2500-odd pages, if one has the patience) than if one reads them separately.

     I wasn't wild about all aspects of The Confusion -- the last 100 pages or so didn't work as well for me as the rest did, and there are a few too many reversals of fortune in Jack Shaftoe's story to be really credible. I still like the Eliza and the Daniel Waterhouse / Leibniz / other scientists sections more than the Jack Shaftoe sections. But Jack Shaftoe sane works better for me than Jack Shaftoe crazy; and on balance the book was an excellent read.

From what I know about rugby, Jacob Levy won't be able to count on little Benjamin to suit up for the rugby match even when he's 16 and big (and chances are that he will be big) -- at least not if I have anything to say about it.

UPDATE: Rory Miller writes:

Prof. Volokh-

Many people think of Rugby as an exceedingly rough and dangerous sport. However, the instance of injuries as a result of playing Rugby are, in fact, far lower than those sustained in American Football, and are generally similar to that of Football (soccer). The reason for this, first and foremost, is that any of the padding worn by American Football players is not for defense, but for offense. A secondary consideration is that the other side is also without pads, which moderates a large amount of dangerous behaviour. Finally, the rules, unlike in American Football and many other contact sports, as they do not limit the number of times a player/team may be tackled before surrendering the ball, do not encourage situations that exacerbate injuries, such as fighting for the last yard.

A simple example, from personal experience. American Football players are taught to tackle straight into the target's chest, often including significant pushing with the helmet. This is simply asking for neck injuries. Additionally, no serious rules are in place regulating the technique, leading to many dangerous tackling forms, as well as the exceedingly dangerous (due to its unexpected nature) blocking tackle. In contrast, Rugby players' tackles are done at the shoulder, usually against the target's legs, allowing that person's momentum to complete the tackle, rather than attempting to stop them and force them backwards (again, a product of the lack of "downs" in Rugby). Furthermore, a Rugby player may only tackle the ball carrier, and their form is strictly regulated- you can be ejected from a game for dangerous tackling (using the neckline of the jersey or otherwise going above the chest and/or failure to wrap your arms around the opponent's legs).

Another appealing aspect of the game is its suitability for diverse player types- there's positions designed for the shorter, huge brutes with large leg strength (me) (the front row, mostly), the very tall (lock), as well as extremely small, light people (wings and/or scrumhalf, depending on how quick one is). One of my friends from high school, who went on to play top level Rugby for Cal, was 5'5" and, depending on the stage of his career, between 120 and 140 pounds. . . .

Although I do not currently play, my time as a Rugby team member was one of my favorite times, and I don't think that you should rule it out prematurely, particularly considering that California (well, mostly Northern California, although it's making headway in Southern as well) is the preeminent Rugby area of the country, both in terms of championship college teams (Cal, SDSU), strong high school leagues (Sacramento-area and Bay Area), professional, international level competition (the USA Eagles, our national team, play in San Francisco) as well as a vibrant adult-league community.

It'd be like living in Napa and strongly discouraging wine consumption (leaving apart the whole age-restriction thing).

Interesting points -- and yet with Ben I'll err on the side of caution . . . . (Of course, it's easy for me to say now, when Ben is still blissfully ignorant of such options.)

How contagious am I? I heard on the radio a story about how a good deal of illness -- and absenteeism -- is caused by "presenteeism": People coming to work sick. If people stayed home when they were sick, it would often be better for them, for coworkers, and for their employers. At the same time, there are obvious pressures to come into the office, and obvious barriers to employers' making it easier for people to stay home: Among other things, if employers were more generous with sick days, more people would stay home even when they aren't that sick, either because they're deliberately faking it, or because they think they might be sick but really aren't that sick.

     I don't claim to have any good answer to that problem, but I do think it would be helpful if one could somehow objectively measure just how contagious one is likely to be -- perhaps some sort of quickie home saliva test or some such. Are such things available? Are they likely to be available soon?

     I'd sure find it handy as an employee. And as an employer, I might be more willing to cut extra slack to trustworthy employees (i.e., ones who I think won't just fake the results) who call in and say "Sorry, I can't come in because my contagiousness level is [some high number]" than just those who say "Sorry, I can't come in because I'm under the weather." (In some situations, I might even demand that an employee who looks sniffly take a test, and go home if he's too contagious.)

     It might also be helpful for social purposes. I hate to infect my friends, but I also hate to stand up friends (especially for a small sit-down event such as a dinner party) when I've promised to join them. If I had an objective measurement of likely contagiousness, rather than just a subjective and imprecise measurement of how I'm feeling (which in any event is far from perfectly correlated with contagiousness), I'd feel much better either coming over or not coming over, whichever is right.

     Of course, I realize that contagiousness may vary both with behavior -- handwashing practices, closeness of contact, and the like -- and with the nature of the disease. But I'm willing to consider crude estimates, if no more precise ones are conveniently available.

     Oh, and finally, one other factor: I don't want to infect my baby, but I also don't want to stick my wife with all the baby-related work (and she doesn't want that, either). If I had some decent measure of likely contagiousness, then perhaps I'd know better when I should avoid handly little Benjamin -- and my wife would know that I'm not just coming up with an excuse to get out of baby duty.

The Victims' Rights Amendment has apparently been withdrawn -- there was supposed to be a committee hearing on it tomorrow, but the backers concluded that they didn't have the votes. I had written an op-ed (at the behest of ACLU people with whom I've been working on this) opposing the VRA, and the Orange County Register had agreed to run it, but now that the VRA has been pulled, they understandably decided to drop it. So I thought I'd just post it instead, for those who might be interested:

I support victims' rights -- but I oppose the Victims' Rights Amendment, on which the Senate will vote later this month. The amendment would unnecessarily strip power from state voters and legislators, and give it to federal judges. The amendment's vague terms would lead to years of litigation, and millions spent on lawyers. And part of the amendment may distract courts from their main business: figuring out who's guilty and who's innocent.

Most states already have victims' rights provisions, enacted by voters or by legislators. State voters can press for more, and can elect officials who will aggressively enforce the laws. All of us are potential crime victims, so victims' rights are a politically popular cause, and rightly so.

But the provisions understandably differ from state to state, just as the Constitution's Framers intended. Different states have different crime rates, different budget priorities, and different judicial systems. Montanans and New Yorkers might reasonably disagree about which rules are necessary and cost-effective.

The Victims' Rights Amendment, cosponsored by Senators Dianne Feinstein and John Kyl, would make victims' rights a federal matter -- so the important decisions will be made by federal judges, not by state voters and lawmakers. The amendment would give victims "the right to adjudicative decisions that duly consider the victim's safety." Who would decide what's due consideration? Federal judges. Likewise for the amendment's other provisions -- the right to be present and "reasonably . . . heard" at various proceedings; the right to due consideration of the victim's interests "in avoiding unreasonable delay" and in timely restitution; and "the right to reasonable and timely notice" of judicial proceedings and of a criminal's release or escape.

Of course, the Bill of Rights rightly imposes some fundamental constraints on state governments. No state, for instance, should be able to restrict people's free speech or deny defendants the right to counsel. These rules are needed to prevent major government abuses.

But such constraints are the exception. The rule is that most criminal justice decisions are made by local elected officials, not the unelected U.S. Supreme Court. Federal courts don't tell us how many police officers we must hire, or how aggressive district attorneys should be, though these are obviously crucial protections for crime victims. The same should apply to other victim protections.

The proposed amendment is also full of vague wording. No-one knows for sure what "duly consider" means, or what's needed to satisfy the right "reasonably to be heard." Those rights could be trumped "to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity"; no-one knows what that means, either.

Until the Supreme Court clarifies these terms, many cases and many years from now, state prosecutors and judges would need to spend time, money, and effort figuring out what they must do to comply. Even states that have strong victims' rights laws would be saddled with another ill-defined federal mandate. Only lawyers would profit from this vagueness -- at the taxpayers' expense.

Finally, consider one part of the proposed amendment: "A victim of violent crime shall have . . . the right to adjudicative decisions that duly consider the victim's safety." Sounds good at first.

But what's the most important adjudicative decision courts make? It's the decision about whether the defendant is guilty or innocent. That decision should be focused on only one thing: the facts. The proposed amendment risks diverting judges and jurors away from these facts about what the defendant did or didn't do, and towards speculation about what's good for the victim.

That's dangerous. It might be better for some victims' safety if a defendant could be convicted based just on strong suspicion, rather than proof beyond a reasonable doubt. It might be better for some victims' psychological well-being if they couldn't be cross-examined. But it would be bad for justice.

Our current system, in which each state's citizens make their own victims' rights laws, works pretty well. And if officials in some states aren't enforcing such laws, voters can throw the bums out.

We don't need to give more power to federal judges, and take it from state voters and officials. We don't need more litigation over vague language. And we don't need to distract judges and juries from what should matter most in a trial: figuring out the truth.

It looks like we'll get an additional federal victims' rights statute, mostly applicable to federal criminal prosecution, instead of the VRA. While I haven't looked closely at the new proposal's text, I find such an approach much less objectionable than a constitutional amendment that would apply to all states as well as the federal government. Depending on the specific text, it might actually even be a good idea, if done as a statute, and applicable to federal cases only.

But I do have time for a quick link (much less work than actually having to think through and compose a whole bunch of responses), to Matt Rustler's thoughts on the matter.

Regrets re: Guantanamo e-mail: I've gotten lots of interesting messages about the Guantanamo issue, but I'm afraid I have to regretfully leave them unreplied to -- my apologies, but between a trip tomorrow, family stuff today, and real articles (and an exam) to write this week and for the next several, I'm afraid I'm swamped.

American University Muslim chaplain and anti-Semitic, anti-Christian, and anti-Shi'a books: The Eagle, the American University student newspaper, reports:

AU's Muslim Chaplain Fadel Soliman, who is also the director of World Assembly of Muslim Youth (WAMY) International, which has published and distributed a handful of anti-Christian, anti-Semitic and anti-Shi'a Muslim books, said he made at least one of the books available to students curious about other religions.

Soliman said he does not teach from these books, as he focuses his teaching on Islam, though he acknowledges using them as a resource, as they are an encyclopedia of religions.

Until a week ago, The Eagle had two of Soliman's books published by WAMY in its possession. Entitled "A Handy Encyclopedia of Religions and Sects," the book was called "a tract of anti-Semitism comparable to the Protocols of the Elders of Zion (an infamous fabrication)" in the 9-11 Commission.

The encyclopedia was written by Dr. Maneh al-Johani, . . . the [late] secretary-general of WAMY . . . .

Soliman was asked why a chapter titled "Judaism and its Branches," which is in Arabic, included Freemasonry in a Feb. 28 interview. Soliman acknowledged that he put marks on the first page and subsequent pages, but didn't answer the question. . . .

In a phone interview before the page was professionally translated, Soliman said he thought the writing in the book was a good introduction to other religions and that he has used the book as a tool for students in the past and would recommend the book to students interested in other religions.

Inlingua, a translation service with offices in Maryland and Virginia, translated the first two pages of the chapter.

Inlingua translated the first part of the first paragraph as, "The religion ushered in by Moses is pure monotheism. After [King] Solomon, the followers of this religion distorted it, giving rise to Judaism. The acts of the Jews became filled with shameful things and sinful behavior. They became overcome with materialism. They came to view economic hegemony over the world as the only basis for the sovereignty of the Jewish race. They therefore fought with the entire world. They spread moral decay in the world. They supported oppression. They hallowed aggression. They distorted religion."

In a third interview at a rally in support of him, Soliman was shown the inlingua translation of the first page in person and was asked to comment on it. While he said he would have to study the first paragraph more, he asserted that the second paragraph was "scientific." The second paragraph includes the line, "Some [Jews] entered Islam to plot its downfall and to light the fire of discord within it."

The second page of the translation implicates the Lions, Zionism, Freemasons and the International Rotary as complicit in a Jewish conspiracy to "corrupt and tightly control the world."

In response to the full inlingua translation of both pages, Soliman wrote in an e-mail, "I assure you that I do not agree with most of what you sent as translation of selected parts from the Encyclopedia. I was a member of the interact myself, my wife was a member of the Rotaract, my father was a Rotary member till he died and my mother attends regularly the meetings of the Lions. My best friend in school was a Jew." . . .

According to Soliman, WAMY is the largest Muslim youth charity in the world and has done humanitarian work all over the world, in addition to setting up youth camps in the United States. . . .

Ali al-Ahmed, a Saudi Arabian man who is the executive director of the Saudi Institute, said in an interview in March that WAMY is not only anti-Semitic, but also anti-Shi'a and anti-Jesuit.

The Saudi Institute describes itself as a "private, nonprofit, nonpartisan" organization that "inspires and facilitates the development of transparency and civic society in the Kingdom of Saudi Arabia."

Ahmed said Soliman's book, as well as other WAMY publications, contains even more offensive tracts. According to Ahmed, some WAMY books also say "Shi'a Muslims are actually Jews, founded by a Yemeni Jew" and "Jesuits recruit widowed women and convince their daughters to sell their bodies to raise money for the Jesuits." . . .

In an e-mail, Soliman wrote that he met Ahmed and they talked about an anti-Shi'a WAMY book. In his words, "[Ahmed] told me about a controversial book that we have about the Shiaa, I read the book and took a decision at once to ban it, then I sent to WAMY in Saudi Arabia, they read the book and within 10 days they banned it and stopped its circulation all over the world for the exaggerations that it continued." . . .

In response to questions about WAMY and Soliman, Gary Wright, assistant vice president of the Office of Campus Life, said, "my interpretation as an administrator is that we make our judgments based on criteria that we admit students, hire faculty and staff."

Wright also said that the MSA said the Encyclopedia has not been distributed to their knowledge and that "by his actions, [Soliman] has been honorable." He went on to say that the chaplains in the ministry must "sign a form that says they will educate and respect the community" and that "we feel that he has honored the requirements." . . .

Should the location of the detainees matter? Jacob Levy asks me this. My tentative answer is that I don't think this should matter that much -- to me, the important questions are whether the detainees are U.S. citizens, and whether they were detained in military operations in a theatre of combat. If both are satisfied, then I think there's a strong case for leaving this to military and executive determination, not to civilian judicial determination.

     Nonetheless, historically the place of detention has seemed to be important (as Johnson v. Eisentrager stressed), possibly because of the historical understanding of the territorial jurisdiction of the courts to which a habeas petition was presented. As a matter of first principles, one might reject this distinction. But there is something to be said for sticking to precedent, especially when the results it reaches are pretty workable. So if the Court follows the Johnson v. Eisentrager line, and limits the unavailability of habeas to cases where people are detained on foreign soil (not just soil that's under foreign control -- Eisentrager involved a U.S. military base in occupied Germany, which surely was under American control), I won't be particularly bothered.

Amicus curiae briefs: My friend and colleague Stuart Banner just came out with an excellent short article called The Myth of the Neutral Amicus: American Courts and Their Friends, 1790-1890, 20 Constitutional Commentary 111 (2003). I found it quite enlightening and asked him for permission to post his Introduction; he kindly said yes, so here it is:

An amicus curiae ("friend of the court") is, in modern American practice, a non-party to a case who nevertheless has a strong enough interest in the case's outcome to file a brief. Common amici include the federal and state governments, ideological organizations like American Civil Liberties Union or the Washington Legal Foundation, commercial groups like the Chamber of Commerce or the AFL-CIO -- in short, anyone with a stake in influencing the content of judge-made law. The name amicus curiae is generally acknowledged as something of a misnomer, in that very few amici intend primarily to help the court. Virtually every amicus hopes instead to advance its own interest by helping one party or the other win the case. This mismatch between name and function is embodied, for example, in court rules that typically require amici to identify the party to the case on whose behalf they wish to argue.

The misnomer is conventionally understood to be a vestige of a time when amici actually did render disinterested advice, for the purpose of helping the court rather than one of the parties. The original role of an amicus, on this view, was that of a neutral bystander, someone without a stake in the outcome of a case, who offered information to the court gratuitously, just to help the court avoid error. The function of an amicus has changed, the story goes, but the name has not. This understanding of the amicus's history traces back to a 1963 Yale Law Journal article by the political scientist Samuel Krislov, who located the supposed "shift from neutrality to advocacy" in the nineteenth century. Krislov's conclusion has been repeated many times since.

In recent years, many courts have even relied on this supposed history to refuse to permit interested non-parties to file amicus briefs, on the theory that only the disinterested are eligible to become amici. As one federal district judge reasoned in 1999, it would be improper to allow a non-party to participate as an amicus where the non-party "has a specific pecuniary interest in the defendant's perspective," or where the non-party "makes no attempt to present itself as a neutral party."

To put the history of the amicus this way, however, only raises further questions, questions that to my knowledge have not been raised previously. Who exactly were these neutral amici in the early nineteenth-century United States? Why were they offering disinterested help to judges? Was there really a time when gratuitous public-spirited legal advice was more plentiful than it is today?

We might approach these questions with some skepticism about the conventional story of a transformation from neutral to partisan amici, because the story fits so perfectly into a common but unrealistically nostalgic version of the history of American legal practice. If one believes that the law was once a noble profession, staffed by officers of the court rather than mere advocates, and if one thinks of American lawyers as having gradually degenerated into paid mouthpieces for their clients, then one can readily believe that the institution of the amicus curiae has undergone the same decline. But if one considers the American lawyers of today no more or less venal than ever, the assumed change in the function of the amicus curiae becomes a puzzle.

There is a second reason for revisiting the issue. Krislov wrote in the early 1960s, before the existence of computerized legal research, so he had no easy way of counting cases. He drew his conclusion from a very small sample, a sample that nevertheless included cases clearly at odds with the point he was trying to prove. Today, with the benefit of an enormous word-searchable database of court opinions, we can do better.

In this paper I accordingly investigate the role of the amicus curiae in early American practice. The paper concludes that:

1. There was never a time in American practice when an amicus was only allowed to offer neutral advice. Some amici were partisan even in the early 19th century.
2. Neutral amici were slightly more common than partisan amici through the 1820s. Beginning in the 1830s, however, partisan amici seeking to advance the interests of their clients became much more common than neutral amici, and remained so through 1890, the study's endpoint.
3. Before the 1870s most neutral amici did not file written submissions. Neutral amici were almost always lawyers who happened to be present in court, watching the oral argument of a case in which they were not involved, and their advice was given orally and spontaneously.
4. The change in the middle decades of the 19th century, to amici that were much more likely to be representing the interests of a client than offering distinterested advice, was most likely caused by the shift from an oral to a written practice, not by any loss of neutrality on the part of lawyers.

These conclusions are at odds with the conventional understanding of the history of the amicus curiae.

But what if we were doing something really, really bad? Some people ask -- but what if we were doing something really, really bad to the Guantanamo detainees, or for that matter to Nazi or Japanese soldiers taken prisoner in World War II? Or, which is what the question amounts to, what if there were charges that we were doing something really, really bad: Torturing them (or, if you think that torture is sometimes permissible, torturing them just out of sadistic motives), or killing them on a whim, or the like. Shouldn't civilian courts get involved then?

     I think the answer is no, just like civilian courts ought not get involved when we do bad things in war to non-prisoners -- for instance, when we kill innocent civilians in misguided bombing campaigns. There are lots of awful things that the government may try to do to foreign nationals in foreign lands as part of a war effort. Some are necessary and some are not, some are proper and some are not, some are downright evil.

     But not every evil is properly remedied through civilian courts. That's been the traditional view throughout American history, that's likely the original understanding of the Constitution, and it seems to me that it's the most practically effective approach. Certainly we shouldn't mistreat prisoners, or unnecessarily bomb innocent civilians. I think, though, that the remedy for that should be through the executive branch (or possibly in some measure through Congress), as influenced by American citizens, and in some situations as influenced by the views of other countries (views to which the executive should quite properly listen to, though of course not always defer to). Historically, for instance, other countries have advocated on behalf of their citizens who are detained as wartime captives -- as has been apparently the case for some of the Guantanamo detainees.

     Civilian courts are good, though expensive, ways to resolve civilian disputes. They embody lots of protections aimed at keeping the government from entrenching itself in power at the expense of domestic dissenters. They are set up to err on the side of protecting liberty, since in most domestic law enforcement situations that's the right direction to err in. They enforce a Bill of Rights that has been developed through the experience of domestic law enforcement.

     But our reliance on civilian courts as a way of dealing with civilian problems doesn't mean that civilian courts must be the ultimate means for dealing with all problems generally, or even all problems that involve risk to innocent people's lives and liberties. The traditional practice has been to leave the authority -- and the responsibility -- for dealing with military matters, including military detentions, to the President, as constrained in some measure by Congress. On balance, I think it is best to leave it there, and to check that authority through the means of publicity and public pressure (both foreign and domestic), rather than by bringing in federal judges.

Guantanamo: My colleague Kal Raustiala writes:

Saw your blog query:

[W]hat if every criminal defendant in the US refused to plead out and demanded a trial[?] Is there a constitutional difference between this scenario and your "many prisoners in a war situation" scenario? Both would wildly overload the system. Is there a reason you see for permitting trials in the former case (even though aggregation would collapse the system) but not permitting habeas in the latter (same)?

Another correspondent asked something similar.

     I think this does shed light on a key question here. As I understand Kal's argument, presumably the U.S. would have to invest the time, manpower, and money -- including the time of soldiers who would be distracted from their military duties by having to provide information for the habeas hearings -- for tens of thousands of detainees taken captive in some future large military conflict. That's the price of justice, the theory would go; we need to pay it.

     And that's true if the obligations imposed by the Constitution apply equally, or even nearly equally, to (1) American citizens (or invitees of the American government) arrested for civilian crimes, and (2) foreigners captured on foreign battlefields and thought to be fighting in a war against America. (There are intermediate categories between the two, such as illegal aliens arrested in the U.S. for civilian crimes, who are generally given constitutional protection, U.S. citizens captured on foreign battles fighting against us, and so on, but for now let me stick to the polar extremes, which are actually quite common, and which are what this case is largely about.)

     But I don't think that's so. Our Constitution has never been understood as making it so. Making it so would potentially hugely burden our ability to fight wars; and, no, I don't think that protecting the interests of foreign soldiers who we think are enemy combatants justifies interpreting the Constitution otherwise.

     The relevant Bill of Rights protections that we have come from the Anglo-American experience of civilian law enforcement. They do impose serious burdens on the government, but the fact that these burdens are acceptable for civilian law enforcement doesn't mean that they are acceptable when fighting a war, and dealing with non-citizens who were captured outside the U.S. on foreign battlefields, and who are thought to have been trying to defeat us.

     Johnson v. Eisentrager (1950), the leading precedent in this field, got it right, I believe:

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it [a reference to the fact that soldiers are generally governed by military justice, with no real recourse to civilian courts], the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. . . .

As a matter of constitutional history and military need, enemy soldiers have long been treated by military justice and military detention, with virtually no intervention by civilian courts. It is a harsh system, as is the system of shooting and trying to kill them (with no trial, arrest warrant, or anything else) before they're taken captive. But I don't think the Constitution commands any other system.

More on Guantanamo, from Ann Althouse.

Detainees and unlawful combatants vs. POWs: My post about Guantanamo brought several messages about this perennial issue. Some complained that the Administration is trying to have it both ways by coming up with some novel category of non-POW detainees. Others didn't complain about the Administration's actions as such, but simply suggested that the courts could come up with a dividing line for habeas purposes -- POWs don't get habeas review, detainees do. Such a line, they pointed out, would reduce the burden on the court system to manageable limits, since the great majority of the hundreds of thousands of enemy soldiers that would be detained during a major war would be POWs.

     I've blogged about this general question before, but it seems worth mentioning again; so here are a few thoughts.

     1. There's nothing at all novel about the concept of an enemy detainee who isn't a POW. To the best of my knowledge, the practice of civilized nations has long recognized that there are two categories of wartime military captives. The first involves (more or less) soldiers who were fighting in uniform within organized command structures; these are generally seen as being entitled to "prisoner of war" status, which means (a) humane treatment, (b) limits on certain kinds of interrogations, and (c) immunity from being tried for actions that consist of "lawful warfare," e.g., shooting at our soldiers (while fighting in uniform within organized command structures). Usually shooting at a U.S. soldier is murder or attempted murder, and voluntarily being part of a group that goes to shoot at a U.S. soldier is conspiracy to commit murder. But if you're doing it while fighting in uniform within organized command structures, you get immunity from that sort of punishment -- though you may still be detained as a POW for the duration of the war, and in some measure beyond the cessation of hostilities.

     The second category, which I stress again has long been recognized by "the laws of war" -- in America, it dates back to the Revolutionary War, as the Supreme Court recognized in Ex parte Quirin -- is that of unlawful combatants. The quintessential examples are spies and saboteurs, but more generally it also includes soldiers who do not fight in uniform within organized command structures. Unlawful combatants are generally not protected in the ways I describe above; they have many fewer rights (I speak here of rights under international conventions and conventional practice) than lawful POWs. In particular, unlawful combatants may be tried and often executed for their unlawful conduct; they don't have the "lawful combatant" immunity from murder laws, for example.

     "Enemy detainees" is a good term to cover both categories, both POWs and unlawful combatants; though since POWs have a familiar name (POWs), "detainees" has often been used during this conflict to refer specifically to unlawful combatants. So the Administration's conduct is amply precedented, and generally consistent with American (and, to my knowledge, world) military traditions and "the laws of war." It's possible that the Administration has erred in classifying some detainees as unlawful combatants rather than POWs; and there's debate about whether it has complied with some of its duties under the Geneva Convention to provide a "competent tribunal" (a military tribunal, mind you, not a civilian one) for determining whether those detainees about whose status there's a legitimate dispute are entitled to POW status. But that's a matter of implementing the unlawful combatant vs. POW distinction. The distinction itself is very well accepted.

     2. This also suggests, I think, that it doesn't make much sense for purposes of American constitutional law, or the American law of habeas corpus, to provide habeas to unlawful combatants but not to POWs. The distinction is a matter of miiltary practice and treaty law, not of U.S. constitutional law. What's more, it doesn't make a huge deal of sense. Unlawful combatants and POWs are both deprived of their liberty by U.S. forces. Both can claim that they really weren't enemy soldiers, but were caught by mistake. If anything, the detainees who are detained on the grounds that they are thought to be unlawful combatants are likely to be more dangeorus than the POWs.

     The conditions of confinement might be somewhat different, especially as to the degree of interrogation to which the detainees are being subjected. (The U.S. has agreed to provide humane treatment to the detainees -- consistently, of course, with the need to maintain security -- so that potential difference between unlawful combatants and POWs doesn't much come into play.) But I don't see why this distinction should make a difference to deciding who's entitled to habeas and who isn't, especially since this distinction has historically been an artifact of treaty law and traditional military practice, not a matter of domestic constitutional obligation. More broadly, the historical U.S. constitutional practice has long been to treat all detainees alike for purposes of U.S. constitutional law.

     3. Now there is of course one important potential difference, which I alluded to in the first item. Once an unlawful combatant is tried and convicted for his unlawful actions, then he does stand in a different position from the POWs: He's not just being detained as a prophylactic measure for the duration of hostilities (however long that might take), but he's being imprisoned for a longer time as a punishment, or even being executed. At that point, there's a more credible case for civilian court review. I think it's probably still pretty weak, for various reasons. But he can no longer be squarely analogized to the bulk of other detainees.

     But none of the Guantanamo detainees has been tried yet on those grounds. Perhaps most won't be. Nor is there any obligation -- certainly no obligation under U.S. constitutional law, but I think not even under international treaties -- to try the unlawful combatants immediately, or within some time of their detention. Since even perfectly lawful combatants may be detained indefinitely, without trial, unlawful combatants may likewise be detained indefinitely, until their trial (or until the government decides, as it may wish to, to release them or reclassify them as lawful combatants).

     The current litigation thus isn't challenging punitive detention or execution, which hasn't taken place. Rather, it's challenging prophylactic detention -- the very sort of thing that was indeed done to German and Japanese soldiers captured during World War II. And, for the reasons I mentioned above, there's no reason in the U.S. Constitution or U.S. habeas corpus law for treating challenges to detention filed by alleged unlawful combatants more favorably than similar challenges filed by lawful combatants.