Saturday, August 28, 2004
On NPR this morning, Jim Nayder, host of the Annoying Music Show, quoted this gem
from William H. Harrison's campaign against Martin Van Buren:
Who rules us with an iron rod?
Who moves at Satan's beck and nod?
Who heeds not man,
Who heeds not God?
Van Buren, Van Buren!
Thanks to those readers who pointed me to the NPR archive and to Jim Nayder's identity (the original version of this post did not identify him), and to Michelle Dulak and N.Z. Bear who transcribed for me the text of the second stanza, which reads:
Who would his friends, his country sell
Do other deeds too base to tell
Deserves the lowest place in hell
Van Buren, Van Buren!
FASCINATING KOREAN BANKRUPTCY LAW:
For the record Orin, I would prefer the piece on Korean bankruptcy law
Then again, when I was in bankruptcy practice, we used to pester the lending and corporate attorneys to take us to meet their clients for whom they were closing deals and they always blew us off. One finally fessed up that taking a bankruptcy attorney to a deal closing was like taking an undertaker to a wedding. I never asked again.
In 2000 Alan Keyes lambasted Hillary Clinton for carpetbagging when she moved to New York to run for the Senate. Suddenly Keyes had a change of heart when given the opportuinity to run for the Senate in Illiois. Yet this has hardly been Keyes' only flip-flop, reports FoxNews
. He once opposed slavgery reparations, now he thinks otherwise. In 2000, while running for President, Keyes recommended abolishing the Agriculture Department, now he thinks it is worth keeping. Indeed, if the Fox report is accurate, Keyes attributes this last change to increased efficiency at Ag. And to think Keyes once had the reputation as a principled, if a bit unhinged, political figure. No more.
THE CELL PHONE MENACE:
concludes that drivers impaired by driving while talking on cell phones are more dangerous that drunk drivers. The abstract:
We used a high-fidelity driving simulator to compare the performance of cell-phone drivers with drivers who were legally intoxicated from ethanol. When drivers were conversing on either a hand-held or hands-free cell-phone, their braking reactions were delayed and they were involved in more traffic accidents than when they were not conversing on the cell phone. By contrast, when drivers were legally intoxicated they exhibited a more aggressive driving style, following closer to the vehicle immediately in front of them and applying more force while braking. When controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The results have implications for legislation addressing driver distraction caused by cell phone conversations.
It has always struck me that the real problem with driving and talking on cell phones is an adverse selection problem. Basically the argument goes like this. Driving and talking on a cell phone is clearly riskier behavior than not talking on the phone while driving. Given that, in general the people who are most likely to talk and drive are those who either are least concerned about externalizing the costs of their risky driving on others or those who tend to underestimate the risk associated with driving in the first place (i.e., below-average drivers). So in other words, it is precisely those who are the worst drivers in the first place who are most likely to ignore the risks associated with talking while driving. Whereas those who are ceteris paribus the best drivers are the ones who are most likely to recognize and account for the risk associated with talking while driving. Same analysis goes for those who eat, put on their makeup, and change cd's while driving.
So you have this downward spiral where the worst drivers do the riskiest things while driving. And at least some of the cost of risky driving behavior is borne as an externality by others. I doubt that banning cell phones while driving is efficient either because there are legitimate uses of course, so it may be a matter of trying to develop social norms that discourage people from gabbing while driving.
And this doesn't even account for them driving slower or poking along in the passing lane oblivious to the world around them because of their cell-phone conversations.
NEW CORPORATE LAW BLOG:
Its called BizFems
and its a collection of female corporate and commercial law scholars. Its just getting started but has some interesting people on it.
Friday, August 27, 2004
Tbogg has a moving post in memory of his father, who passed away on Wednesday. Thanks to TalkLeft for the link.
Clintonism of the Day:
Here's today's Bushism of the Day from Slate (note that "they" refers to the voters):
"They've seen me make decisions, they've seen me under trying times, they've seen me weep, they've seen me laugh, they've seen me hug. And they know who I am, and I believe they're comfortable with the fact that they know I'm not going to shift principles or shift positions based upon polls and focus groups." — Interview with USA Today, Aug. 27, 2004
The subhead of the column is, as always, "The president's accidental wit and wisdom," but this has nothing to do with the misspeaking — whether real or imagined, unusual or commonplace in the normal speech of normal people — that is supposedly Bush's hallmark, and that is thus supposedly accidentally funny. Nothing here is ungrammatical or a malapropism (unless, I suppose, the author is somehow picking on Bush for saying "under trying times" as opposed to "in trying times" or "under trying conditions").
The only thing that I can imagine the Slate author finding amusing is the "they've seen me hug" line, and more broadly the touchy-feeliness of the first sentence. But that's not a Bushism — that's an "I feel your pain" sensitive-guy Clintonism. I confess it puts me off a bit; I hope you'll never hear me say "they've seen me hug" in public. It says more, however, about the Clintonization (or 70s-ification, if you want to go that far back) of American politics than about Bush's accidental wit and wisdom.
UPDATE: Just to make it clear, occasional hugging is fine -- it's just talking a lot about hugging that I disapprove of.
More on Theodorakis's views on Jews:
The Theodorakis remarks that David Bernstein points to below aren't the first of his remarks about Jews to make the news. Last November, Theodorakis was reported as saying:
We are two nations without brothers in the world, us [Greeks] and the Jews, but they have fanaticism and are forceful. . . Today we can say that this small nation is the root of evil, not of good, which means that too much self-importance and too much stubbornness is evil.
He then tried explaining himself, but not quite persuasively, in my view. I posted about this here.
African American Self-Defense in the Jim Crow Era:
I've being doing some academic research on African American history from approximately the 1880s to the 1930s, and occasionally see a reference to an individual or community that responded to mob or other illicit violence with armed resistance. However, I've been unable to locate any book or article that discusses the subject in anything resembling a comprehensive way. Leads from readers would be appreciated (dbernste [at sign] gmu.edu).
I was going to blog this interview with Greek composer Mikis Theodorakis (most famous for "Zorba the Greek"), but Clayton Cramer beat me to it. A short excerpt:
So today's globalized capitalism is controlled very much by the Jews?
"Since we speak frankly, I will tell you something else. The Jewish people control most of the big symphonic orchestras in the world. When I wrote the Palestinian national anthem, the Boston Symphony was planning a production of my work. It is controlled by Jewish people. They didn't allow the concert to go on. Since then I cannot work with any great orchestra. They refuse me."
You ran into this problem with other orchestras too?
"Wherever there are Jews. Wherever there are orchestras controlled by Jewish people, they boycott my work."
You really feel Jews control much of the music world?
And the same applies to world finance?
"In America the Jewish community is very strong. It controls much of the economy. Certainly the mass media.
Theodorakis denies that he is anti-Semitic. Rather, he is just upset that besides controlling the music, financial, and media industries, the Jews control the Bush Administration (which, along with the Sharon administration, he accuses of pursuing "Nazi" policies) and help orchestrate its evil agenda. As Cramer writes, "the mind boggles."
Subsidies for Everything:
I think the idea of having affordable "flying cars" is very cool, but can anyone give me a plausible reason why the government is spending taxpayer money on researching this, rather than leaving it to the private sector? And how exactly did domestic transportation issues come to be within NASA's purview?
Update:Readers inform me that NASA has being doing basic aeronautics research for decades, along with its "sexier" agenda. I still don't see any need to spend taxpayer money on something as potentially attractive to private industry as flying-car research. On the general issue of whether the government should be funding scientific research more generally, especially research with primarily commercial outgrowths, I heartily recommend Terrence Kealey, The Economic Laws of Scientific Research.
Using how-to books for vicarious thrills:
I got many responses to my query; thanks very much to everyone who submitted items. I ultimately ended up choosing the ones for which I could find someone else saying (preferably in a reputable publication) that many readers were indeed likely to use the books to fantasize about doing, rather than to do. Nothing like having Authorities to Rely On, even if they're just someone who's making an educated guess about what's likely.
The items I'm using — and no need to submit more, thanks — are:
Lonely Planet: Antarctica. See Juliet Coombe, Planet Goes to China, HERALD SUN (MELBOURNE, AUSTRALIA), Jan. 30, 2004, at T11 (interview with Tony Wheeler, co-founder of the company that produces the Lonely Planet guidebooks) ("Q The Lonely Planet guide to Antarctica sells about 45,000 copies a year. Why is it so popular, despite relatively few people going there? [A] Science and wildlife expeditions are getting more exposure and lots of people are armchair travellers. The guidebook includes long sections on wildlife and the environment. For most of us, a trip to Antarctica is a dream."). Naturally, some of the readers are "armchair travellers" in the sense of people who are curious and want to satisfy their curiosity by reading rather than by traveling; but I suspect that some of the armchair travelers really do read the books to fantasize about actually being there. Thanks to Michelle Dulak Thomson.
WoodenBoat magazine. See, e.g., MICHAEL RUHLMAN, WOODEN BOATS 23 (2002) ("[A]n obscure magazine idea, a magazine devoted to wooden boats, became a resounding success precisely because readers didn't have to own wood to love it, admire it, or even dream about it. . . . [I]ndustry experts guess that fewer than 10,000 wooden boats exist in America, not including dinghies, canoes, kayaks, homemade plywood skiffs, and the like . . . . Yet this minuscule industry . . . generates a subscription base for Wooden-Boat of more than 100,000 . . . ."). Thanks to David Riceman.
Worst-Case Scenario books. See, e.g., Jayne Clark, `Worst-Case' Writers' Newest Scenario: Runaway Train to Fame, USA TODAY, Apr. 27, 2001, at 7D ("In this sequel to their best-selling The Worst-Case Scenario Survival Handbook, Joshua Piven and David Borgenicht have once again produced a very funny guide with a deadpan tone aimed at armchair Walter Mittys, as well as wannabe Indiana Joneses."). Thanks to many people.
Some cookbooks. See, e.g., Maurice Sullivan, Last Best Books of 1997, WINETRADER, vol. R, no. 6, http://www.wines.com/winetrader/r6/r6bk.html ("I have finally figured out that all these beautiful and expensive color cookbooks aren't for people who really want to cook, but rather are for folks on diets that want to fantasize about food!"). This is probably something of an overstatement, but I suspect that some of the cookbooks' readers do indeed use the books this way, even if others do actually use them to cook. Thanks to many people, especially Ashley Doherty.
"Why Revoke Tariq Ramadan's U.S. Visa?"
Apropos the story I mentioned yesterday, here's Daniel Pipes' argument for why revoking Tariq Ramadan's visa was a good idea. (My post dealt simply with why it's constitutional.) I don't know enough about the facts to speak to this myself, but I thought I'd pass the item along; I'll be happy to link to counterarguments, too. Here's an excerpt:
What's up? The DHS knows much more than I do, but it is not talking. A review of the press, however, gives an idea of what the problem is. Here are some reasons why Mr. Ramadan might have been kept out:
He has praised the brutal Islamist policies of the Sudanese politician Hassan Al-Turabi. Mr. Turabi in turn called Mr. Ramadan the "future of Islam."
Mr. Ramadan was banned from entering France in 1996 on suspicion of having links with an Algerian Islamist who had recently initiated a terrorist campaign in Paris.
Ahmed Brahim, an Algerian indicted for Al-Qaeda activities, had "routine contacts" with Mr. Ramadan, according to a Spanish judge (Baltasar Garzón) in 1999.
Djamel Beghal, leader of a group accused of planning to attack the American embassy in Paris, stated in his 2001 trial that he had studied with Mr. Ramadan.
Along with nearly all Islamists, Mr. Ramadan has denied that there is "any certain proof" that Bin Laden was behind 9/11.
He publicly refers to the Islamist atrocities of 9/11, Bali, and Madrid as "interventions," minimizing them to the point of near-endorsement.
And here are other reasons, dug up by Jean-Charles Brisard, a former French intelligence officer doing work for some of the 9/11 families, as reported in Le Parisien:
Intelligence agencies suspect that Mr. Ramadan (along with his brother Hani) coordinated a meeting at the Hôtel Penta in Geneva for Ayman al-Zawahiri, deputy head of Al-Qaeda, and Omar Abdel Rahman, the blind sheikh, now in a Minnesota prison.
Mr. Ramadan's address appears in a register of Al Taqwa Bank, an organization the State Department accuses of supporting Islamist terrorism.
To return to the legal question (and I stress again that I don't know enough about the factual issues to comment on them), if one thinks that aliens should have a right to enter the U.S., and should be barred based only on proof in court of criminal conduct rather than based simply on suspicion of connections with terrorists, then these allegations might not be enough. But U.S. law has not generally taken such a view, and I think it has been right not to take such a view.
"Wait a moment. We're supposed to haggle.":
It seems that one of the detainees being tried at Guantanamo, Ali Hamza Ahmed Sulayman al-Bahlul, wants to admit he is a member of Al-Qaeda
and doesn't want a lawyer to help him.
Mr. Bahlul at one point asked not to be interrupted. He declared that there was no evidence as important as a confession given freely and that everyone in the courtroom and around the globe should know that he was speaking without being forced.
He then said: "I am from Al Qaeda. And the relationship between me and Sept. 11 — "
At that point he was abruptly cut off by Colonel Brownback, [the presiding officer on the five-member commission panel,] who apologized for interrupting but said he wanted to remind his fellow panel members that Mr. Bahlul's statements should not be taken as evidence to be used against him. When Mr. Bahlul resumed speaking, he did not pick up where he had left off and never completed the sentence about his relationship to the Sept. 11 attacks.
Brig. Gen. Thomas L. Hemingway of the Air Force, a commission official, told reporters at the Pentagon in Washington after the session that Colonel Brownback had only been trying to protect Mr. Bahlul. There is, however, no protection against self-incrimination in the military commission proceedings.
Sounds like this will be pretty interesting. As for the title of this post, forgive me if the dynamics of the tribunal hearing remind me just a bit of this scene
from Life of Brian
Pledge of Allegiance story:
A tangentially related phone call from a reporter reminded me of this story that a law professor I know and trust told a while back.
It seems that a visiting colleague's students were going to a public school in Texas, and declined to say the Pledge of Allegiance. The teacher insisted that they say it, which of course violates Barnette v. West Va. Bd. of Ed., the 1943 case that held students had a First Amendment right not to recite the Pledge. Fortunately, the school backed down after getting a letter from the father.
The letter gave an explanation for the children's behavior, though it didn't have to (and though as a legal matter, there should have been no need for the letter). The explanation was that the visiting colleague, and his children, were visiting from a foreign country, and they were citizens of that country, not the United States. They thus don't owe allegiance to the flag of the United States of America, or the Republic for which it stands, wonderful as it may be. (Technical footnote: In a purely legal sense, noncitizen residents of the U.S. owe the nation a duty not to aid its enemies in time of war -- noncitizens can thus be convicted of treason -- which is sometimes called a sort of "allegiance," but this is not, I think, the solemn allegiance to the flag that the Pledge contemplates.)
Apparently the teacher not only didn't know or think about the students' First Amendment rights. The teacher also didn't think about what exactly the Pledge means, and why some students have an entirely simple and prosaic reason -- entirely unrelated to high constitutional debates about dissent and conscientious objection -- not to express that meaning.
Insider's Guide to Understanding Law Review Submissions:
The new academic year has arrived at law schools around the country, and that means it's fall law review placement season. Professors are sending out articles they wrote over the summer, and student articles editors are selecting articles to publish. I thought I might provide a public service to law review editors out there by offering a behind-the-scenes look at what professors are really thinking when they write law review articles. Here is a model title and abstract; just click on "translate" to see what a typical professor might be thinking and what message he might have wanted to send to the journal when he wrote the preceding text.
Deconstructing the Panopticon:
A Neo-Realist Critique of the Rehnquist Court
This article presents a neo-realist critique of the Rehnquist Court. By combining the architectural insights of Foucault's Panopticon with recent advances from Jungian psychoanalytic theory, the article exposes the Rehnquist Court as a contingent product of Hegelian substantive ethics.
Building upon and extending the insights of Akhil Amar, Lawrence Lessig, and Cass Sunstein, the article applies this framework to recent decisions in controversial areas ranging from affirmative action to the Court's decision in Lawrence v. Texas. It also explains how the Supreme Court should decide United States v. Booker and United States v. Fanfan, pending cases that consider how Blakely v. Washington applies to the United States Sentencing Guidelines.
It concludes by offering additional thoughts on the broader connection between Rehnquistian jurisprudence and social darwinism.
Of course, any similarity between this and any actual article title and abstract is entirely accidental.
Thursday, August 26, 2004
How-to books as providing vicarious thrills:
I'm looking for examples of factual books — preferably how-to books — that some readers read for the fun of imagining themselves using this knowledge. One example, though I don't know if such a book actually exists, would be a work that explains how someone could reconstruct civilization if stranded on a desert island. It may not be consciously aimed at the fantasizing market, but I imagine that a lot of people who read it would do it in part to imagine themselves as some super-savvy Robinson Crusoe.
Likewise, my sense is that the Hit Man contract murder manual — obviously a much darker and more dangerous work — has also been used mostly as entertainment for people who want to imagine themselves as soldiers of fortune. It apparently sold 13,000 copies, and I doubt that there are 13,000 would-be real contract killers in the country. The same may be true for the Anarchist Cookbook and similar works.
I'm looking for more examples, preferably of real how-to books, that people do use, or are likely to use, as means to imagine themselves as something else — a successful castaway, a contract killer, or something else. If you can give examples of people actually remarking (preferably in the press) that this book is good for that sort of thing, that would be best. But examples where it's simply plausible that many readers would read the book for that purpose would be fine, too.
This is for a tangent to my Crime-Facilitating Speech, which I'm just finishing up and getting ready to send to the journals, so responses that I get will come in very useful. Many thanks in advance.
[Note: Yes, I know that my first hypothetical is reminiscent of the "what technology could a smart 12-year-old reproduce if hurtled back in time to ancient Rome?" question. I have the 250 messages that I got in response on my desk, and I've gone through about 175, looking for what strike me as the best answers — I'll then try to do a bit more research on them, and post the answers, probably in a month or two. Thanks again to everyone who responded, and sorry for the delay.]
UPDATE: A bunch of people have recommended the Worst Case Scenario guides, and some others have recommended some other items (I'll blog more about this soon). In the meantime, more, more — I'm still not satisfied!
Revocation of visa based on alien's speech:
Venkat Balasubramani (Begging to Differ) points to what appears to be a revocation of a visa based on an alien's speech:
The US administration came under fire for barring prominent European Muslim scholar Tariq Ramadan from entering the country to take a post at the renowned Notre Dame University.
Ramadan, rated by Time magazine as one of the 100 most influential people in the world, was granted a visa in May only to have it revoked on August 2 by the US State Department on the recommendation of the Department of Homeland Security (DHS). . . .
Russ Knocke, a Department of Homeland Security spokesman, told Reuters on Tuesday, that the work visa was taken back because of a section in federal law applying to aliens who have used a "position of prominence within any country to endorse or espouse terrorist activity." . . .
(I say "appears" because the article is clearly an opinion piece, not an objective news account -- note the reference to "the Board of Deputies of British Jews [launching] a vile campaign against prominent moderate Muslim scholar Youssef Qaradawi's visit" -- but I'll assume that the account is complete and accurate for purposes of this post.) Balasubramani calls this "a good example of Patriot Act abuse" (because "The Patriot Act added the following clause which provides an additional ground of inadmissibility with respect to an alien who . . .'has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities'"); he also says that "[i]t's definitely not a no-brainer as to whether this passes First Amendment scrutiny," though in an update he suggests that "the case may be a bit less strong, and maybe because of the standing issue," and may present only an as-applied challenge.
But as a doctrinal matter, this is a "no brainer" in favor of the government; there's a 1972 Supreme Court case, Kleindienst v. Mandel that's quite squarely on point:
It is clear that Mandel [a self-described "revolutionary Marxist" foreign academic] personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. . . . The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel's admission. . . .
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court . . . [has] held broadly . . . that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers - a power to be exercised exclusively by the political branches of government . . . ." . . . The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." . . .
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [sec.] 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. . . .
One can debate whether the Court got it right in Kleindienst; I think it did, but that is a story for another day. One can also debate whether it's a good idea for Congress and the Executive Branch to exclude such aliens -- though note that the Patriot Act is not an innovation in this respect. But as a matter of existing First Amendment doctrine, the government has a clear winner of a case here (again, even if the press account that Balasubramani quotes is entirely accurate).
Forbes and Volokh coconspirator Stuart Benjamin on satellite radio:
Here's an excerpt:
Digital radio promised lower costs, higher quality and more variety. To portray this as a bad thing, the NAB turned the free-market logic of 18th-century economist Adam Smith on its head, stressing the harm satellite radio could do to the listening public.
Satellite's "purported benefits are, in the main, nonexistent, unrealistic or of minimal value," the group assured the FCC in 1995. Left free to compete, the NAB added, satellite radio would offer inferior programming and shove better-quality AM and FM service off the air. Thus competition would leave consumers worse off, the NAB said in an Orwellian conclusion: "Adding a new service would likely decrease the overall service to the public."
"Economists just don't take a lot of those arguments seriously," says Stuart Benjamin, a Duke University professor who studies broadcast regulation. "To be blunt, the NAB has power that is not commensurate with the persuasiveness of its arguments." . . .
Lewis Lapham apologizes for time travel:
The Harper's Magazine site contains the following (thanks to Christopher Rohrbacher):
[Letter to the Editor:] I was most impressed to read of Lewis Lapham's ability to travel in time in "Tentacles of Rage" [Essay, September]. As far as I can tell, on the day I received my copy of Harper's Magazine, the Republican convention had yet to take place, and living in New York, I think I would have noticed. Admittedly, the pablum will be predictable (barring some unforeseen event), but it seems awfully sloppy of Lapham to discuss feelings he had while watching something he has yet to watch, simply in order to put some additional feathers on one of his rhetorical barbs. What is most appalling is that he chose an actual piece of journalism, rather than his accustomed punditry, for this rather silly fillip. This doesn't exactly give me faith in his understanding of what it is reporters actually do.
On the other hand, if he has in fact traveled in time, I would appreciate it if he could let all of us subscribers know the outcome of the forthcoming election.
Lewis Lapham responds:
As Mr. Ostrowski properly notes, the rhetorical invention was silly. The mistake, however, is a serious one, and if I'd had my wits about me as an editor, I wouldn't have let the author mix up his tenses in manuscript or allowed him in page proof to lapse into poetic license. Both of us regret the injury done to the magazine and apologize, wholeheartedly, to its readers.
It's to Lapham's and Harper's credit that Lapham apologized, and did so promptly, via the Web. I'd like to know a bit more about how this error came about -- but in any event, I'm glad that it was promptly acknowledged.
Rock N Roll Treason:
Alice Cooper apparently has little patience
for all the rock bands touring the country to encourage their listeners to vote against President Bush. "To me, that's treason. . . . I call it treason against rock 'n' roll
because rock is the antithesis of politics. Rock should never be in bed with politics." Cooper continues:
When I was a kid and my parents started talking about politics, I'd run to my room and put on the Rolling Stones as loud as I could. So when I see all these rock stars up there talking politics, it makes me sick.
If you're listening to a rock star in order to get your information on who to vote for, you're a bigger moron than they are. Why are we rock stars? Because we're morons. We sleep all day, we play music at night and very rarely do we sit around reading the Washington Journal.
64 = 65 math puzzle:
A reader asks: "[C]an you explain this geometry puzzle?," pointing to the 8 x 8 = 5 x 13 puzzle that's been making the rounds. He adds:
Ever since I saw it, I've had a hard time concentrating on work. It seems to call into question an orderly universe, which is quite disturbing.
Well, I surely don't want American productivity — or for that matter American faith in an orderly universe — to decline. So the answer is
available by clicking here.
The diagonals of the blue shape and the green shape (and likewise of the red and the orange) in the 5 x 13 figure look like they match up, but they actually don't. There's a narrow gap between them, too narrow to see easily, but when it's added up over the length of the 5 x 13 figure, it amounts to the missing square. The slope of the bottom of the blue shape is 5/2 = 2.5; the slope of the top of the green shape is 8/3 = 2.666....
At x=5, for instance, the blue shape's y=2, but the green shape's y=5x3/8=15/8. The 1/8 difference between 2 and 15/8 is the gap I told you about.
UPDATE: Reader Jason Wolfkill articulates the general point well:
Your answer to the 64=65 puzzle showcases what I like to call the "do the math" principle. Our eyes and intuition may lead us astray, but the numbers don't lie (at least not to a degree that those of us living in the Newtonian/Cartesian world can detect).
Never mind . . .:
The JibJab "This Land Is Your Land" controversy (see here and here and several posts in between) is over: It turns out, thanks to an investigation by the Electronic Frontier Foundation, that the song may well be in the public domain -- and thus free for all to use -- because the original copyright had not been properly renewed. (Under the pre-1978 copyright law, a copyright had to be renewed after the first 28 years; that's not the case any more for new works.)
Ludlow Music still claims that they do own the copyright, but they have decided to withdraw their objections "to avoid the expense and difficulties of litigation." JibJab had earlier filed a lawsuit for declaratory judgment to establish their right to use the song, and that lawsuit has now been settled in JibJab's favor. See this Electronic Frontier Foundation press release and this Wired News story.
Thanks to readers Robert Schwartz and Matthew Sheffield for the pointers.
On Tuesday, a panel of the Third Circuit reversed and remanded an order of a district court judge who had simply copied verbatim the appellee's proposed opinion in the case. Here is an excerpt from the Third Circuit's opinion:
Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.
Good stuff. To make matters more interesting, the Third Circuit's published opinion includes both the proposed district court opinion and the district court's order as an appendix so you can compare the two yourself. (According to the Third Circuit, the appellant raised the verbatim copying argument as a ground for reversal only in a footnote.)
Wednesday, August 25, 2004
Janice Brown and "Battered Woman Syndrome"
Justice Brown, whose nomination to the D.C. Circuit has been stalled by Senate Democrats, easily gets the better of her California Supreme Court colleagues in a dissent. The majority's opinion makes it absurdly easy for a prosecutor to present expert testimony claiming that a woman's recantation of a prior claim of a single incident of domestic violence was due to the woman suffering from "Battered Woman Syndrome." The evidence in question clearly didn't meet the specific California statutory standard for the admissibility of this sort of evidence, nor should the evidence have been admitted under California's general expert testimony standard, which requires that expert testimony "assist the trier of fact." Even granting the (very controversial) theory behind "Battered Woman Syndrome," mainstream advocates of the theory haven't been known to claim that a single violent incident creates the "learned helplessness" that is a hallmark of the sufferer of the syndrome. Justice Brown has once again shown why she deserves to be a D.C. Circuit judge.
Update:The majority appears to be arguing that even though the expert apparently discussed BWS on the stand, the court would not apply the specific statute governing BWS. Instead, the testimony should still be admitted because it was helpful to the jury to have an "expert" with experience dealing with victims of domestic violence discuss the psychology of victims of domestic violence, and the "cycle of violence" that leads to domestic violence. However, the general rule in American courts is that expert testimony regarding a testifying witnesses' credibility (or lack thereof) is inadmissible, especially when the expert is not testifying regarding a body of established scientific knowledge, as opposed to experience-based witnesses. (See The New Wigmore: Expert Evidence, chapters 1 and 7.) In the case under the discussion, the expert in question was apparently not even a trained pyschiatrist or psychologist, but the "Program Manager for the Antelope Valley Domestic Violence Council."
Silly supposed math conundrum:
I'm amazed how often people think there's some puzzle about whether zero is odd or even. (Do a google search on "is zero even" and you'll see.) The question has even made its way into news stories, usually when some government institutes "odd-even" gasoline rationing in which the days you can buy gas depend on whether the last digit of your license plate is a 0.
The answer couldn't be simpler: Zero is even because it is exactly divisible by 2 (i.e., when divided by 2 it yields no remainder) or, if you prefer, because it is a multiple of 2 (just as 2, 4, and the like are). That's the dictionary definition, and it's also the standard mathematical definition.
Nor would there be any reason to define evenness the same way. Mathematical definitions are sometimes chosen with an eye towards convenience, for instance when prime numbers are defined to exclude 1, so as to guarantee that every positive integer above 1 has a unique prime factorization. One could define prime numbers so that 1 is included (any positive integer that's divisible only by 1 and itself) rather than so 1 is excluded (any positive integer that has exactly two different positive integer divisors); but mathematicians have chosen the latter definition for their convenience. Still, I know of no reason why evenness would be defined so 0 wouldn't be even, and I've never seen any such odd definition. (Of course, zero isn't an even positive integer, but that's because it's not positive, not because it's not even. I've also heard it said that in some versions of roulette, if you bet on the evens, you'll lose if the ball lands on 0, but naturally doesn't really tell us much about the mathematical definition.)
Incidentally, I once ran across an article whose author was saying some political question was unanswerable, much like the question whether zero is even. I e-mailed him to say that the is-zero-even question is very much answerable. He responded with an apology, and a suggestion that he should have used some other example, such as "Is there an infinite number of primes?"
I felt compelled to respond that actually there is an infinite number of primes, and there's an elegantly simple proof developed of this over 2000 years ago (by Euclid). Ah, the perils of drawing analogies to a subject that one doesn't really know well.
I should be on Bill O'Reilly's radio show today at 10 am Pacific, talking about the First Amendment rules that would apply to protests at the Republican National Convention.
10TH CIRCUIT UPHOLDS FUNERAL DIRECTOR'S MONOPOLY ON BOX SALES:
Disappointing decision by the 10th Circuit in Powers v. Oklahoma
this week upholding Oklahoma's law permitting only licensed funeral directors to sell caskets. Why someone would need a to embalm 25 bodies, pass a licensing examination, and complete a specified 60-credit program of undergraduate training for the required funeral director's license just to sell a box remains unclear to me. Indeed, given the complete lack of any link between box-selling and embalming, it is surprising that the funeral home directors don't just go ahead and have their monopoly extend to all forms of box-selling, including cardboard boxes and luggage.
These restrictions have always struck me as especially distasteful, in that these guys mark up their caskets by a couple hundred percent and take advantage of people who may be grieving. To add insult to injury, the price-gouging morticians defend their practices by saying that they are proctecting people in their time of need.
One of the more disturbing aspects about this opinion is that it suggests that protecting an interest-group from economic competition is itself a legitimate government purpose. "In contrast, the Supreme Court has consistently held that protecting or favoring one particular intrastate industry, absent a specific federal constitutional or statutory violation, is a legitimate state interest." On the other hand, there is a refreshing honesty to the court's characterization of the realities of the political process (especially when it comes to regulation of the licensed professions): "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." The court goes on to state, however, "While the creation of such a libertarian paradise may be a worthy goal, Plaintiffs must turn to the Oklahoma electorate for its institution, not us."
In fact, according to FTC studies of the funeral industry, it turns out that in many families there is one person who essentially specializes in buying funerals--i.e., "Uncle Joe" or "Aunt Sue" handles all the funeral arrangements for family funerals. So in fact the decision-maker can and will shop--if given the chance. These sorts of laws like the Oklahoma decision in Powers instead just deliver up consumers to get ripped-off by a licensed monopoply. And it has been well-recognized since at least Mancur Olson that the political process is likely to fail in exactly this situation--where there is a delivery of concentrated benefits to a well-organized interest group and the costs are borne by dispersed consumers as a whole who lack the incentive and ability to organize themselves to overturn these regulations. Indeed, in this situation the incentives would appear to be even more attenuated, in that purchase of funeral goods and services is at best a rare shopping incursion, distinguishing it from such goods and services as plumbers, lawyers, and doctors.
The 10th Circuit's opinion creates a circuit split with the 6th Circuit's decision in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002), so perhaps this will make the issue ripe for Supreme Court cert.
A nice summary and analysis is provided by Fritz Schrank at sneakingsuspicions.com
, who brought the decision to my attention.
Tuesday, August 24, 2004
More on the Harper's error:
I called Harper's, and was told that Lewis Lapham would have an explanation of the error (they acknowledged it was an error) in the October issue, which should be out about a month from now. To their credit, by the way, someone called me back from Harper's within an hour.
I should have asked -- and I encourage others to call them to ask -- whether they'd be distributing the explanation earlier. They do have a Web site, after all. Bloggers who make a mistake can and generally do correct it, apologize for it, or explain it (or some combination of these) within hours or days. Seems to me Harper's ought to as well, no?
CARLY FIORINA ON GLOBALIZATION:
While on the topic of great speeches by public figures, I commend to all a remarkable speech by Carly Fiorina
of HP in support of globalization. She is extremely effective in providing anecdotes and personal stories that support the abstract insights of economic theory on why globalization is good for the poor.
Using Thomas Sowell's effective insights and terminology from A Conflict of Visions, this speech is a nice example of how to sell globalization to those who have an "unconstrained" vision of human nature, as opposed to the "constrained" vision of economists.
NOTE ON "THE TIMES":
In response to my earlier designation of the Washington Times as the "Good" Times, a friend of mine remarked that I'm the only person in America who reads the New York Times solely for the sports news (last year I had 2 Giants and 1 Jet on my fantasy football team). Strange, but true.
Why Bush Bashes 527s:
When President Bush signed the McCain-Feingold campaign finance law, he made clear that he did not care all that much about legal protection for political speech. (Ditto the Supreme Court when it upheld the law.) So no one should be surprised that Bush is now calling for an end to independent political advertisements, such as those run by "527" organizations. After all, eliminating these "shadowy" groups is clearly in the President's political interest
(contrary to the suggestions of Matt Yglesias
and Amy Sullivan
While there are prominent GOP-leaning 527s, the vast majority of 527 money is flowing to anti-Bush organizations. As detailed on OpenSecrets.org
, most of the multi-million-dollar 527s are lined up against the President. Indeed, only one of the ten largest 527s, the Club for Growth
, is anti-Kerry. Yet much of the Club's money goes to support "pro-growth" House and Senate races and to defeat
Republican lawmakers who vote to raise taxes. Yglesias cites to the National Federation of Republican Women, but they're only the 49th largest 527 listed by OpenSecrets.org. Losing the benefit of NFRW and other small groups would be a small price for the GOP to pay in return for eliminating the Media Fund, America Coming Together, and MoveOn.org -- just to name three of the largest 527s in the nation, each of which opposes Bush with sums that make NFRW's budget look like chump change.
Let me be clear: I oppose the President's position on 527s. I am against most, if not all, limits on campaign speech -- including those by independent groups. The President was wrong to sign McCain-Feingold into law, and he is wrong again here. I would further argue that fewer donors would give to such independent groups -- and we'd have fewer "shadowy" ads -- if it were easier to give larger amounts directly to candidates or to provide traditional "soft money" contributions to political parties. President Bush's position strikes me as rank opportunism -- and it is so , in part, because 527 contributions have overwhelmingly benefitted his opposition.
t has long been my belief that environmentalism in practice is really more of a religious lifestyle, rather than a science-based effort to actually protect the environment. My article "Baptists? The Political Economy of Environmental Interest Groups"
makes this argument. Two articles from yesterday's headlines shed some light on the subject of whether environmentalists are really "civic republicans" or rather just acting out of economic self-interest, broadly defined.
The first is an article from the Washington Post, which notes that the Toyota Prius car is dramatically outselling the Honda Civic Hybrid car. The main reason? From the article
: "The Prius and Civic have similar new technologies, so it's not just fuel efficiency that's causing drivers to flock to Toyota's hybrid. 'The Prius is a fashion statement,' said Art Spinella, a consultant with CNW Marketing Research who surveys car-buying trends. 'It looks different. Other people know the driver is driving a hybrid vehicle. It clearly makes a bigger statement about the person than does the Civic, which basically looks like a Civic.'"
Turns out that Prius buyers buy their cars for the same reason that generations of Americans have bought Camaros, Corvettes, or Cadillacs--they like the image that it projects to the world. "That's classic car-buying behavior, said Michael Marsden, dean of academic affairs at St. Norbert College in Wisconsin and an expert on popular culture. 'Automobile culture has always been about status. The whole industry is based on symbols,' he said. 'With the Prius, you're bringing attention to yourself . . . saying, "I bought something upscale, something people will talk about." It is a conversation piece, an attention-getter.'"
A second article (that I saw referenced in the Good (i.e., Washington) Times notes a study
of the leadership of environmental interest groups and their salaries. Amazingly, according to the report, the head of NRDC earns $368,000 per year and the head of EDF earns $327,000. Nonetheless, I have been criticized for my thesis that economic self-interest explains some part of the actions of environmental interest groups. Keep that in mind the next time NRDC passes the offering plate, er, I mean, requests a donation to save some endangered species.
There's a great speech by Michael Crichton
by the good folks at PERC on the topic of environmentalism as a religion that I hadn't seen before.
Thanks to Bob Ayers for the pointer.
An alert reader notes an extended critique
of Crichton's speech. Obviously I'm not endorsing every fact in Crichton's speech in commending it as reading material, although I think the general thesis is insightful.
WINE WARS, PART 11—SUBSEQUENT LEGISLATIVE ENACTMENTS:
An alternative argument that has been offered is that even if the 21st Amendment does not transfer Congress's commerce clause authority to the states, Congress essentially reconveyed its commerce clause power to the states legislatively through the Webb-Kenyon Act. Thus, the dormant Commerce Clause is said to be irrelevant to this case, because protectionist state laws have been enacted pursuant to an affirmative exercise of Congress's Commerce Clause power, not in contravention of the dormant Commerce Clause.
First, as noted earlier, this is clearly not what was initially done through the Webb-Kenyon Act, as the previously quoted colloquy between Sen. Wagner and Sen. Blaine made clear that Congress was affirmatively exercising its Commerce Clause authority to allow the states to apply their police powers to liquor shipped in interstate commerce on the same basis as domestically-produced liquor.
It is argued that the enactment of the Twenty-First Amendment Enforcement Act in 2000, 27 U.S.C. §122a, as an amendment to the Webb-Kenyon law, further evidenced this recoveyance of power. By its own terms, however, the Twenty-First Amendment Enforcement Act applies only to a state law "that is a valid exercise of power vested in the States" under the 21st Amendment, and further provides that the act "shall not be construed to grant the States any additional power." 27 U.S.C. §122a(e).
This language was designed precisely to preclude the argument now advanced that the Act could be used to enforce discriminatory state laws. This language was a more general statement of the original "Goodlatte" amendment which had passed the House, and which provided, "No State may enforce under this Act a law regulating the importation or transportation of any intoxicating liquor that unconstitutionally discriminates against interstate commerce by out-of-State sellers by favoring local industries, thus erecting barriers to competition and constituting mere economic protectionism." 145 Cong. Rec. 6868; see also 145 Cong. Rec. 6869.
Legislative history makes clear that the purpose of the Goodlatte Amendment and the language eventually enacted, was designed specifically to reject the idea that protectionist state laws are consistent with Webb-Kenyon and the 21st Amendment. Congressman Cox for instance stated, "In vindicating the purposes of the 21st Amendment, a State cannot discriminate as mere economic protectionism against other sellers, other producers in the rest of the United States." Id. at 6871. Similarly Congressman Conyers stated, "[The amendment] will make it clear that neither this act nor Webb Kenyon are in anyway designed to supersede any other provision of the Constitution, such as the first amendment or the Commerce clause (including the so-called `dormant' Commerce clause. Id. at 6873. Congressman Kolbe added, "The 21st Amendment was designed to give States the power to regulate alcohol sales within their States, and to ban it altogether, if they choose. It was not designed to give States the power to keep the wine sales of some distributors out while allowing others in." Similar comments were offered by Senate supporters of the language that was finally enacted. Statement of Sen. Feinstein, S. Hrg. 106-141 (March 9, 1999).
Indeed, if the states' interpretation of the 21st Amendment were adopted, it would cast into doubt all of Congress's power to regulate interstate commerce in alcohol. Among other things, this could interfere with federal efforts to combat terrorism. For example, a federal provision, passed after the attacks on September 11, 2001, to reduce the number of bulky packages on airlines, permits wineries to ship wine directly to consumers if the wine purchaser "was physically present at the winery" at the time of purchase, is "of legal age to purchase alcohol," and "could have carried the wine lawfully into the State * * * to which the wine is shipped." 27 U.S.C. 124. Consistent with a proper interpretation 21st Amendment, this law respects state laws governing purely local alcohol issues, but regulates the manner in which otherwise lawful alcohol imports can be shipped through interstate commerce in the interest of national security. If the Supreme Court adopts the expansive definition of the 21st Amendment as a tender of plenary power over interstate commerce to the states, however, this anti-terrorism law would likely be unconstitutional.
It is remarkable to me, that given the importance of the War on Terrorism, federal officials have not been more alert to recognizing an adverse decision in the wine cases could potentially interfere with the federal government's war on terror.
My colleague Rick Sander is one of the researchers on the "After the JD" project; they're interviewing a huge (about 3800) and fairly representative sample of people who graduated from law school in 2000, and they're just beginning to come up with data. (They intend to interview them again on several occasions in the years to come.) Rick gave a great presentation at UCLA yesterday about it, and much of the data will be posted on the NALP Foundation and American Bar Foundation sites.
Here's one tidbit, far from the most important one, but one that I thought might be interesting, from p. 19 of the study:
2.5% of the [After the JD] respondents reported that they are gay or lesbian. This figure is not very different from the 2.1% of the general population, and 3.5% of the college educated population, that self-identified as homosexual in the 1991 Laumann et al survey . . . .
A footnote notes that "Given that younger people may be more likely to report homosexuality, and that more people are openly gay now than a decade ago, it is likely that the AJD sample reflects some underreporting by the respondents. Those who reported being gay or lesbian were distributed very much like the rest of the respondents by gender, race, practice settings, and income, with a slight geographic overrepresentation in New York and San Francisco."
The data can't be entirely precise, partly because of the limitations of self-reporting, and partly because homosexuals are such a small part of the population that random variations might throw off the numbers considerably. (Also, I'm not sure how the study treated bisexuals; I hope to get more data soon on that. [UPDATE: I just looked at the questionnaire, and it turns out that students were asked the yes or no question "Are you gay, lesbian, transgendered or bisexual?" -- this suggests that the 2.5% number covers all these categories, thus including bisexuals.]) But it does seem that homosexuals are roughly as represented in law as they are in the population at large.
On the other hand, one can't make the same claim about Jews; Jews are 2% of the full-time working population, but 7% of the survey respondents said they were Jewish (p. 20). Some stereotypes are indeed accurate.
The survey also reported that 30% self-reported as Protestant, 27% as Catholic, and 23% as having no religious identity, which suggests that the irreligious are also overrepresented, though of course "no religious identity" can be defined very differently in different contexts, and it's thus hard to compare these numbers across surveys. (Note also that some of the 23% might be secular Jews, so the Jewish numbers might be higher than 7%.)
Editors writing things they know are not accurate:
I at first didn't want to get too outraged about Lewis Lapham's writing -- before he actually had a chance to see the Republican convention -- about "the platform on which [George W. Bush] was trundled into New York City this August with Arnold Schwarzenegger, the heavy law enforcement, and the paper elephants," and adding
The speeches in Madison Square Garden affirmed the great truths now routinely preached from the pulpits of Fox News and the Wall Street Journal--government the problem, not the solution; the social contract a dead letter; the free market the answer to every maiden's prayer--and while listening to the hollow rattle of the rhetorical brass and tin, I remembered the question that [Richard] Hofstadter didn't stay to answer. How did a set of ideas both archaic and bizarre make its way into the center ring of the American political circus?
The falsehood was so obvious (Harper's subscribers would read this before the convention), and its obviousness must have been so obvious to Lapham, that it's hard to see this as a deliberate lie. If a 5'6" man tells you he's 5'8", that might be a lie. If he tells you he's 6'6", then it seems like something else -- a joke, maybe, or a delusion, or irony that's way too deep for me.
But I wonder what that "something else" here. One explanation is that Lapham wrote the column to be published after the Convention -- but that's really not an innocent explanation: He's writing that he listened to something, and giving his characterization of what he heard (or at least heard about), even though at the time of writing he hadn't actually listened to it, and thus had no opportunity to characterize things accurately.
A more innocent explanation might be that he wrote this as a draft, meant to go back to update this if necessary, but somehow the article slipped out early. That's an odd way to write a column, and bespeaks a certain closed-mindedness: I'd think most writers would have left the paragraph blank, and filled it in afterwards, perhaps with some telling details and with an eye towards reflecting the actual proceedings -- yes, conventions are predictable, but they're not completely predictable, so why mentally box oneself in with a first draft? Nonetheless, different writers write differently, and in principle if a writer wants to write a draft of what he expects the article to be like, with the expectation that he'd revise it later, that's fine.
But is this really what Lapham did? Or did he just say "Hey, I'll just write it now as if I'd seen the whole thing, and send it now to be printed as is later"? If it's the latter, then shouldn't someone announce, well, a scandal or something?
Also, if this really was a screw-up, how many people had to have screwed up for something like this to happen?
Michelle Malkin responds to Cathy Young
here. I linked to Cathy's column, and provided an excerpt here.
Lewis Lapham in Harper's:
Good thing that people still read the reliable, credible Real Media instead of those nasty inaccurate, un-fact-checked blogs. That way, they get the benefit of what Jacob Sullum (whose work I have generally found quite trustworthy) says is Lewis Lapham's clairvoyance:
In the latest issue of Harper's, Lewis Lapham has a long, tiresome essay on the "Republican propaganda mill" . . . . [Important substantive criticisms by Sullum omitted, in the interests of getting to the shallower but juicy stuff. -EV]
Perhaps the most revealing part of the article is the paragraph where Lapham pretends to have heard the speeches at the Republican National Convention that does not open until a week from today. Referring to "the platform on which [George W. Bush] was trundled into New York City this August with Arnold Schwarzenegger, the heavy law enforcement, and the paper elephants," Lapham writes:
The speeches in Madison Square Garden affirmed the great truths now routinely preached from the pulpits of Fox News and the Wall Street Journal--government the problem, not the solution; the social contract a dead letter; the free market the answer to every maiden's prayer--and while listening to the hollow rattle of the rhetorical brass and tin, I remembered the question that [Richard] Hofstadter didn't stay to answer. How did a set of ideas both archaic and bizarre make its way into the center ring of the American political circus?
True, the issue is dated September, but I got my copy in early August, and Lapham must have written those words in July. . . .
Ramesh Ponnuru (of the National Review) noted the same thing.
Is there some context here that Sullum or Ponnuru are omitting, which might make this make sense (for instance, if Lapham makes clear that this is his prediction, or that he's joking, or some such)?
Seriously, if Sullum's account (and Ponnuru's terser account) is correct and in context, this is the editor of a leading magazine knowingly making factual assertions — that he was at some place and heard some things — that aren't true. Not very good behavior, it seems to me.
The odd thing is that of course Harper's readers will realize they aren't true. What happened here? Did he prewrite the article, and then accidentally release it too early? (That would actually be pretty bad as well, unless he had been planning to go back to revise it in light of what he actually heard at the convention.)
UPDATE: Readers Michelle Dulak and Dick Riley (who regularly read Harper's) confirm that there's nothing in the context that would change Lapham's meaning.
Air America gun control debate:
A couple of readers pointed me to this file, which they say contains the Air America gun control debate I was involved in last Friday. I haven't yet been able to check it myself, or to figure out where in the file the debate starts, but I thought I'd pass it along in any event.
UPDATE: A helpful reader reports that the debate starts at around 44:00 in the program.
Bohener v. McDermott Redux:
In 1996, Representative Jim McDermott obtained a tape of an illegally intercepted cellphone call between Representative John Boehner, then-Speaker Newt Gingrich, and other members of the House Republican leadership. McDermott turned the tape over to the New York Times
, which published a story on the tape's contents, and Rep. Boehner sued. The district court initially dismissed the case on First Amendment grounds, the U.S. Court of Appeals for the D.C. Circuit reversed, and then the Supreme Courtvacated the D.C Circuit's opinion and remanded the case in light of another decision
holding the relevant statute unconstitutional on First Amendment grounds.
Now, back at the district court, Rep. Boehner appears to have won
the case (for the time being). In this opinion
released yesterday, Judge Hogan distinguishes the relevant Supreme Court holding and holds for Rep. Boehner. According to Judge Hogan, "because
Defendant McDermott participated in an illegal transaction when he accepted the tape from the Martins, he is without First Amendment protection and Plaintiff Boehner is therefore entitled to judgment as a matter of law." A subsequent hearing
will determine the extent of the damages.
As one might expect, the New York Times is not happy
. "Judge Hogan's decision may be extremely harmful," commendted one of the paper's attorneys, "since it goes well beyond past cases to hold that a totally passive recipient of information, who did not solicit or pay for it, can be held liable. Under this new rule, much of the information reporters acquire every day, from the Pentagon Papers on down, would become legally suspect." The case will certainly be appealed, and the key issue will be whether the distinction drawn by Judge Hogan holds.
WINE WARS, PART 10—PROPOSED BUT NOT ENACTED §3 OF THE 21ST AMENDMENT:
The contemporaneous debates in Congress over the proposed but never enacted §3 of the 21st Amendment further indicate that the purpose of §2 was to restore the constitutional balance disrupted by the 18th Amendment by returning local police power authority to the states, but not to grant to the states new powers to interfere with federal authority over interstate commerce. Defenders of state alcohol protectionism have relied heavily on the defeat of this section as well as the debates surrounding it to suggest that it evidences an intent of Congress to give wet states a sword to engage in economic warfare against one another, as opposed to simply giving dry states a shield to protect themselves against being forced to tolerate evasions of their alcohol regimes. As a result, even though it was never enacted, it is an important part of the 21st Amendment debate.
Again, the entire thrust of the debate over §3 was whether the states would have sole control over local affairs governing alcohol, neither §3 itself nor the debates over it pertain to whether the states would be given new unprecedented, unjustified, and unnecessary powers to regulate interstate commerce, but merely to constitutionalize the Wilson Act and Webb-Kenyon, thereby enabling the states to apply their police power regulations on the same terms to alcohol shipped in interstate commerce equally as to alcohol produced inside the state.
Proposed §3 of the 21st Amendment read: "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." 76 Cong. Rec. 4141. This provision would have given the federal government concurrent power with the states to regulate saloons. Id. (Statement of Sen. Blaine). Notwithstanding this enumeration of "concurrent" power, however, the operation of the Supremacy Clause meant that federal law would prevail in the event of conflict. Id. at 4143 (Statement of Sen. Wagner). Critics of §3 objected that this intermingling of state and national authority was precisely the source of the problems that plagued effective enforcement of national Prohibition under the 18th Amendment in that it encouraged federal meddling in wholly local police power affairs governing alcohol. See Part 8
. Senator Wagner similarly observed, "The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility. No law can live unless it finds lodgment in the public conscience and is nourished by public support."
As Senator Wagner observed in his criticism of proposed §3, the purpose of the 21st Amendment was to "restore the constitutional balance of power and authority in our Federal system which [had] been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution." Cong. Rec. at 4144 (Statement of Sen. Wagner). By contrast, §3 would give to the federal government a new power that it lacked prior to the enactment of Prohibition-what would amount to a general police power authority to regulate in the area of saloons, an intrastate transaction that Congress otherwise would have been unable to reach under the prevailing interpretation of the Commerce Clause during that era. The federal government has no independent police power authority (as most recently noted in Lopez), and could not likely have regulated the purely local transactions described in §3 under the prevailing interpretation of the Commerce Clause at that time, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542-548 (1935). As a result, the deletion of §3 was sufficient to remove the federal government from conflict with the states' intrastate police power.
Senator Wagner noted that while the 21st Amendment as proposed "pretends to restore to the States responsibility for their local liquor problems," because of proposed §3, it "does not in fact repeal the inherently false philosophy of the eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed ...." Cong. Rec. at 4144 (Statement of Sen. Wagner); see also id. at 4147 (noting that §3 could enable Congress to comprehensively regulate local issues related to saloons). As a result of §3, the 21st Amendment would "expel the system of national control through the front door of section 1 and readmit it forthwith through the back door of section 3." Id. at 4147. Because proposed §3 was inconsistent with the goal of restoring the pre-18th Amendment constitutional balance, it was deleted. Just as the grant of a new power to Congress to effectively engage in police power regulation of saloons was considered an undesirable departure from the pre-Prohibition constitutional balance, so too would an unprecedented plenary power of the states to impose discriminatory barriers to interstate commerce.
Thus, §3 would not merely have been a minor incursion on absolute state power over all aspects of liquor sales and importation. Rather, it was an incursion of a specific kind—it would have retained the de facto federal police power of the 18th Amendment that had proven so disastrous as both a policy and a constitutional principle.
Note that if it were true that §2 gives the states plenary power over interstate commerce in alcohol, then if §3 had been enacted it would have created a regime where the states regulated interstate commerce in alcohol and the federal government would have regulated the local operations of saloons (due to its primacy under the supremacy clause). It is a far more plausible interpretation of §2 and §3 together that the former provision meant to restore the traditional constitutional balance and the latter was inconsistent with this goal.
The Supreme Court and Life in the 1950s:
I recently came across Kremen v. United States, 353 U.S. 346 (1957)
, an old Fourth Amendment decision. FBI agents located a fugitive in a secluded cabin; after arresting the fugutive and two other men, agents seized the entire contents
of the cabin and sent the contents off to FBI headquarters. The Supreme Court issued a very short per curiam opinion saying without analysis that this was impermissible. The case doesn't say much about the law, but I was struck by the very interesting list of items seized from the cabin included as an Appendix to the Court's opinion. The Appendix lists about 200 items — everything in the cabin, I assume — and gives us an interesting insight into life in the mid-1950s. (Ok, so it's not like everybody lived in a cabin in the 1950s, but you get the idea.) Here are just a few items on the list:
1 Package lighter flints - Ronson
1 Prince Albert tobacco - pocket size can
1 Ronson cigarette lighter & cigarette case combination (empty)
1 Jar scalp pomade, dark, by Ogelvie Sisters, N. Y.
2 Tubes toothpaste, Chlorodent (1 small & 1 large size)
1 Bottle Pepto Bismol, marked 98
1 Can Sopronol for athletes foot
1 Can Rise Shave Cream marked "59" on side
1 Newspaper clipping captioned, "Drive Two Hours - Then Rest"
1 Yellow plastic toothbrush in case
1 Cash register receipt, dated 4/10 for $1.88 to Palmer's Drug Store, Hayward, California
1 RCA portable radio, Model B X 57
1 Sentinel portable radio with plastic case, Model 316P, serial 29004
1 Pair black rubber overshoes
2 Windshield wiper blades
1 Clipping - "San Jose Evening News," 8/26/53 (Inside Labor)
30 Sheets unused stencil paper
1 Columbia record - "Edith Piaf Encores"
1 Pair white bobby soxs
1 Portable Royal typewriter, serial #0-431783
To see the whole list, click on the link above and scroll down a bit.
Monday, August 23, 2004
Slate has the story on the exacting sand standards required by serious beach volleyball competitions. Surprisingly interesting.
WINE WARS, PART 9—THE 21ST AMENDMENT §2:
At last, we get to the 21st Amendment. Section 1 simply repeals the 18th Amendment ("Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed."). Section 2 of the 21st Amendment provides, "Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." As noted in Part 8
, the problem with Prohibition was that it tried to nationalize alcohol prohibition by imposing it on communities that didn't want it. In other words, not only was alcohol regulation traditionally a local affair, but there was good reasons why. The 21st Amendment essentially amounted to a "do over"—it was intended to restore the constitutional and political balance that had been upset by the 18th Amendment by removing the federal government from interfering in local affairs regarding alcohol and reinstating state police power authority over alcohol regulation.
In addition, the 21st Amendment also constitutionalized the Wilson and Webb-Kenyon Acts, thereby assuring dry states that the public sentiment that led to the repeal of Prohibition wouldn't sweep within it a repeal of the Wilson and Webb-Kenyon Acts which had provided assurance to dry states that they wouldn't be forced to accept interstate alcohol shipments. By contrast, there is nothing in the history that led up to the ratification of the 21st Amendment to suggest that there would have been any reason to give the states plenary power over interstate commerce regarding alcohol. This Part will discuss §2, which was intended to reinstate the regime that prevailed prior to the 18th Amendment. The next entry will discuss proposed but never enacted §3, which as will be seen, was rejected because it was inconsistent with the purpose of the 21st Amendment to restore the constitutional balance that had been interrupted by national prohibition.
Section 2, therefore, was designed aid dry states in the valid exercise of their police power "constitutionalizing" the statutory protections previously afforded by the national government to the states. "The wording of §2 ... closely follows the Webb-Kenyon and Wilson Acts, expressing the framers' clear intention of constitutionalizing the Commerce Clause framework established under those statutes." Craig, 429 U.S. at 205-06. In particular, dry states were concerned about the continued political and constitutional validity of Webb-Kenyon following the repeal of Prohibition, so dry states desired that their ability to remain dry be written into the Constitution to prevent against backsliding by Congress or the Supreme Court.
Although the constitutionality of Webb-Kenyon was upheld in Clark Distilling, at the time of its enactment there were serious questions about its validity. Indeed, President Taft initially vetoed the law because he considered it unconstitutional, 49 Cong. Rec. 4291 (1913) a view that was shared by Attorney General Wickersham at the time, 30 Op. Att'y Gen. 88 (1913). It was also noted that the Supreme Court's opinion in Clark Distilling was a "divided opinion," that there had been changes in the membership of the Court that cast further doubt on the vitality of Clark Distilling, in that Justice Sutherland had been in the Senate when Webb-Kenyon was passed and had argued against its constitutionality at that time. 76 Cong. Rec. 4170 (Statement of Sen. Borah), and that there was continuing debate about the constitutionality of Webb-Kenyon, see id. (expressing dry states' fear that Webb-Kenyon "might very well be held unconstitutional upon a re-presentation of it"). Senator Borah also noted that from its very inception, there had been aggressive legislative and litigation efforts to overturn Webb-kenyon.
Senator Blaine expressed nearly identical sentiments in his remarks: "In [Clark] there was a divided opinion. There has been a divided opinion in respect to the earlier cases, and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line." 76 Cong. Rec. 4141 (Statement of Sen. Blaine).
Senator Borah similarly explained that he was "rather uneasy about leaving the Webb-Kenyon Act to the protection of the Supreme Court of the United States," Id. at 4171, nor was he comfortable "rely[ing] upon the Congress ... to maintain indefinitely the Webb-Kenyon law " 76 Cong. Rec. 4170 (Statement of Sen Borah). To remove these constitutional and political uncertainties, the Amendment's sponsor Senator Borah explained that §2 would "incorporat[e Webb-Kenyon] permanently in the Constitution of the United States." 76 Cong. Rec. 4172 (statement of Sen. Borah). As Judge Easterbrook wrote in Bridenbaugh, "Like the Wilson Act and the Webb-Kenyon Act before Prohibition, §2 enables a state to do to importation of liquor-including direct deliveries to consumers in original packages-what it chooses to do to internal sales of liquor, but nothing more." Bridenbaugh, 227 F.3d at 853.
Finally, the legislative history is rife with references to the fact that what this was about was the power of the states to effectuate their police power. Borah states, for instance, "We hear a great deal in these days about the eighteenth Amendment destroying the police powers of the states. I venture to say that anyone who has taken the trouble to familiarize himself with the destruction of the police powers of the States relative to the liquor question will have to conclude that the police powers had been destroyed prior to the adoption of the eighteenth amendment, taken away from the States prior to that time through the decisions of the Supreme Court of the United States and the constant and persistent attack of the liquor interests upon the rights of the States to be dry and to exercise their police powers to the end that they might be dry."
There is no indication that §2 was intended to anything more than assist dry states in the exercise of their police powers by treating interstate liquor the same as in-state. It was well-established by this time that the state police powers did not provide a license to discriminate, and there is no indication that §2 was intended to give wet states new, unprecedented, unmentioned, and illogical powers to erect protectionist barriers against other states' products.
A journal article the very title of which makes one cringe:
O'Halloran RL, Dietz PE: Autorerotic fatalities with power hydraulics. Journal of Forensic Sciences, 38:359-364, 1993.
UPDATE: Reader Jeff Driscoll found the abstract on the Web. I'm not sure that I'm glad he found it -- reading it just triples the "ow!" factor for me -- but I thought I'd add the link for those who are curious.
is guest blogging over at Lessig Blog. Don't miss it.
Oral sex in the armed forces:
United States v. Marcum, just decided by the U.S. Court of Appeals for the Armed Forces, (1) declines to decide whether the Lawrence v. Texas right to sexual autonomy generally applies to members of the armed forces, and (2) holds that a noncommissioned officer can be punished for engaging in nonforcible oral sex with a subordinate.
Though the allegations in the case involved nonforcible but nonconsensual sex (the defendant was supposedly performing oral sex on the subordinate as the subordinate was waking up), I don't believe the military verdict specifically found absence of consent. Therefore, as I read it, the court's reasoning focused on the hierarchical relationship between the parties rather than absence of consent, and is thus generally applicable to any oral or anal sex (heterosexual or homosexual) between a defendant servicemember and another servicemember over whom the defendant has supervisory authority.
Shooting fleeing soldiers:
Christopher Hitchens writes:
John Kerry actually claims to have shot a fleeing Viet Cong soldier from the riverbank, something that I personally would have kept very quiet about. He used to claim that he was a witness to, and almost a participant in, much worse than that.
Maybe there's part of the story that I'm missing here — quite likely, since I haven't been following the Kerry-in-Vietnam matters very closely (except the Christmas in Cambodia story, which I've been following chiefly because it seems relatively simple compared to the other items) — but what's wrong with shooting a fleeing enemy soldier?
Shooting a surrendering soldier is forbidden; but fleeing soldiers generally flee to fight another day, or even to fight you again when they get behind cover. This is why, as I understand it, shooting fleeing soldiers, assuming you have sufficient reason to believe them to indeed be enemy soldiers, is quite legal and in my view quite morally permissible. Or is there some other fact (say, some aspect of the rules of engagement in Vietnam) that would make this behavior improper?
UPDATE: A couple of readers suggest that Hitchens is merely saying that shooting a fleeing soldier isn't enough to justify a medal for valor, rather than saying that it's an atrocity or even immoral. I'm not sure that's quite right, given the "would have kept very quiet about" line, and the connection drawn by the next sentence to atrocities. (The sentence does say that Kerry's atrocity allegations were indeed related to much worse behavior, but the connection suggests that the atrocities and the shooting of the fleeing soldier are at least of the same kind, though very different in degree.) Still, if that's simply Hitchens' point -- that shooting a fleeing soldier in the back isn't a sign of bravery, though it isn't criminal or evil, and wouldn't disqualify one for a medal earned earlier in the firefight -- then that makes more sense.
Cathy Young on Michelle Malkin's book:
Ironically, the profiling measures Malkin advocates today, such as selective monitoring of aliens and visitors from countries with terrorist links, are moderate and fairly sensible. She is right that it's ludicrous to invoke Japanese internment as a parallel. But surely, defending something as extreme as mass internment can only undermine her case. The people Malkin dubs "profiling alarmists" argue that if you accept any ethnic profiling, you're on a slippery slope to defending internment camps. And Malkin does her best to prove it for them.
"We and They":
Something -- I don't know what -- recently reminded me of Rudyard Kipling's We and They, so I thought I'd post it:
Father and Mother, and Me,
Sister and Auntie say
All the people like us are We,
And every one else is They.
And They live over the sea,
While We live over the way,
But -- would you believe it? -- They look upon We
As only a sort of They!
We eat pork and beef
With cow-horn-handled knives.
They who gobble Their rice off a leaf,
Are horrified out of Their lives;
While they who live up a tree,
And feast on grubs and clay,
(Isn't it scandalous?) look upon We
As a simply disgusting They!
We shoot birds with a gun.
They stick lions with spears.
Their full-dress is un-.
We dress up to Our ears.
They like Their friends for tea.
We like Our friends to stay;
And, after all that, They look upon We
As an utterly ignorant They!
We eat kitcheny food.
We have doors that latch.
They drink milk or blood,
Under an open thatch.
We have Doctors to fee.
They have Wizards to pay.
And (impudent heathen!) They look upon We
As a quite impossible They!
All good people agree,
And all good people say,
All nice people, like Us, are We
And every one else is They:
But if you cross over the sea,
Instead of over the way,
You may end by (think of it!) looking on We
As only a sort of They!
ALL THINGS FAMILY GUY:
Ok, if you haven't seen it yet, Family Guy is one of the funniest shows of all time and it is coming back to Fox this fall. FG is not for those who are easily offended and, do not--repeat, DO NOT--watch the Family Guy if you have PC sensibilities. Anyway I just learned of a web site that discusses all the obscure references and other things in the Family Guy: http://www.familyguyfiles.com/main.php
I have the dvd set of the first two seasons and must confess that the commentary tracks are really terrible and uninteresting, so if you catch them on Toon and Fox you aren't missing much by not having the dvd's.
And if you watch FG and offended, I deny ever recommending it.
WINE WARS, PART 8--THE FAIULRE OF NATIONAL PROHIBITION AND THE 18TH AMENDMENT:
In the era before the 18th Amendment, the state and federal governments had thus reached a general accommodation on the balance of authority between the state police power and national commerce power. The states had the authority to regulate purely local affairs, such as rules governing the manufacture and consumption of alcohol, especially with respect to bars and saloons, where alcohol was sold and consumed on the premises. The federal government retained complete control over matters involving interstate commerce. Under the Wilson Act and Webb-Kenyon, the federal government assisted the states in the enforcement of their police powers by making alcohol that was shipped in interstate commerce subject to the same rules as locally produced and sold alcohol—no better and no worse.
The ratification of the 18th Amendment and the enactment of the National Prohibition Act upset this balance. Although the 18th Amendment technically gave the state and federal governments concurrent power to regulate the manufacture, sale, and consumption of alcohol, because of the Supremacy Clause, it essentially gave the federal government absolute authority to regulate all aspects of alcohol, including purely local matters traditionally regulated by the states pursuant to their police powers, such as closing times of saloons, conditions of sale of alcohol, and the like. Stated more precisely, the states could impose stricter regulations pertaining to alcohol, but not weaker or different penalties that conflicted with the Volstead Act.
As Sidney Spaeth wrote in the California Law Review, "The enforcement of Prohibition represented the nadir of government regulation of liquor." 79 Calif. L. Rev. 161, 162 (1991). Local communities that were wet prior to the imposition of Prohibition resisted national efforts to impose Prohibition. As one Congressman noted, "If prohibition can only be enforced by the use of sawed-off shotguns in the hands of irresponsible Government agents, then indeed, we have reached the high tide of fanaticism and bigotry in this matter. We have reached a point where responsible citizens have not only the right but the duty to replace prohibition with some method of Government control under which law and order will prevail." 71 Cong. Rec. 2671 (1929) (Rep. Pittenger). During the era of Prohibition, the efforts of the federal government to enforce Prohibition where it was not wanted spawned violence, bloodshed, and corruption. This is precisely why police power issues involving moral issues was traditionally held to be a local matter—because of the divergence of views among different communities, it was thought that the exercise of police power authority was uniquely well-suited to state and local governments rather than the federal government. Indeed, the peculiarly local nature of alcohol regulation may be best exemplified by the fact that even in those areas that imposed prohibition, this was usually not even done on a statewide basis, but rather by permitting communities the "local option" to go dry—thus, local prohibition was rooted in truly local morals and authority. As Spaeth writes, "The United States learned a hard lesson from Prohibition."
The fundamental problem of national Prohibition, therefore, was that it essentially created a new police power for the federal government, one that it specifically lacks in any other area and which it is peculiarly unsuited to exercise, as the Supreme Court noted in the Lopez case. As will be seen, the purpose of the 21st Amendment is to rectify this aspect of Prohbition by removing the federal government from its unwise intervention into local police power regulation and thereby to reestablish the constitutional balance that prevailed prior to the 18th Amendment. The problem of Prohibition, which the 21st Amendment sought to correct, was federal overreaching into local police power matters—and crucially, had nothing whatsoever to do with the states' inability to regulate interstate commerce, and especially, to erect protectionist barriers to interstate commerce.
The problem with Prohibition was thus federal meddling in state and local affairs. As Secretary of the Treasury Andrew Mellon noted in is annual report for 1926: "The Treasury felt with respect to local law enforcement that too much responsibility had been placed upon the Federal Government. Even in those States which already had satisfactory State laws, and in which local machinery for enforcement had been provided, citizens and officials were looking to the Federal forces for the performance of police duties which were purely local. This misinterpretation of jurisdiction, while perhaps natural and for that reason excusable, proved a serious hindrance to the successful enforcement of the national prohibition law. Were the Federal Government to accept this responsibility, it must organize large police forces in the various communities, and, in addition, must provide adequate judicial machinery for the disposition of the local cases—and interference by the Federal Government with local government which could not be other than obnoxious to every right-thinking citizen." Quoted in Spaeth at 176.
The failure of Prohibition that prompted its repeal was an improper meddling of the federal government into a matter that traditionally fell under the states' police power. There is nothing in the history of Prohibition or its repeal to suggest that—after the enactment of the Wilson Act and Webb-Kenyon—the states needed additional interstate commerce powers to effectuate their local prohibition regimes.
As noted previously, one other effect of national prohibition was to cast doubt on the continued legal validity of the Webb-Kenyon Act, which prompted Congress to later reenact Webb-Kenyon after the 21st Amendment to ensure its effectiveness.
Sunday, August 22, 2004
Sunday Song Lyric:
With the Olympics still going on, it would make sense to keep the Olympic theme going with today's Sunday Song Lyric. Believe it or not, there aren't many Olympic-themed - or even sports themed - songs wit h lyrics worth posting. (I know, I know, that's never stopped me before . . . ). In any event, the Hives
have a new album out, Tyrannosaurus Hives. The album is a strong follow-up to the Swendish quintet's smash debut. Among the more amusing songs is "Dead Quote Olympics," written (like all of the songs on album) by Randy Fitzsimmons -- and it keeps the Olympic-theme going (well, kinda).
The Dead Quote Olympics
Can't make an omelette without breaking an egg
And I can't make a headache if I don't aim at the head
You had enough of their thoughts have your own
The you wouldn't have to be such a clone
That just won't get you nowhere, you thought it would?
The Dead Quote Olympics
This time you've really got something it's such a clever idea
But it doesn't mean it's good `cause you found it at the library
Yes they were smart but they are dead
And you're repeating al that they said
You know it don't make you cleaver like you thought it would
The Dead Quote Olympics
It's on! You won! I'm done!
You didn't read between the lines so it won't do you any good it's true
And that moment that you live for it doesn't live for you
When weekends set standard and pace
We are all showered in books and berets
And that will just get you nowhere, who thought it would?
The Power of the Law:
Check out this pretty cool blog post from a law firm associate blogging as The Uncivil Litigator about how he sued the INS to keep his wife in the United States-- and won. The unnamed district judge in the story is a recent Bush appointee who comes off as quite a hero. Hat tip: Stuart Buck.
Was 9/11 Meant for 9/18?
In today's Washington Post, retired Foreign Service Officer Kenneth M. Quinn offers a theory that the attacks of 9/11/01 might originally have been planned for 9/18/01 to coincide with the Jewish holidays. It's just speculation, but it's pretty interesting speculation.
Saturday, August 21, 2004
WINE WARS--SUPPLEMENTAL MATERIAL ON WEBB-KENYON:
Given the primacy of Webb-Kenyon to the understanding of the 21st Amendment, I thought it might be useful to post some additional excerpts from the legislative history of Webb-kenyon to illustrate the point that the purpose of that Act was to enable the states to enforce their police powers against interstate liquor, not to given them a new power to engage in protectionism:
Senate Judiciary Sub-Committee
* "The police power of the State does not extend to all of these subjects [such as clothing and wheat]. It is only those that are considered detrimental to health and morals. There the police power of the State is complete; but the police power of the State would not extend to prevent the sale of flour or any wholesome commodity .... In the Mugler case ... they passed upon the question of whether this commodity was within the police power of the State, and the question back of it all is the question that has not been discussed according to my mind, and that is this question: The Supreme Court has held that the State has complete police power over the sale and manufacture of liquor .... Now, if the people of Oklahoma have no right to engage in the manufacture and sale of intoxicating liquors in your State, why should I, as a citizen of Minnesota, have a greater right in your State than your own citizens?"
Hon. Fred S. Caldwell (the speaker before the Sub-Committee):
* "[T]ake the Mugler case. There the Supreme Court of the United States held this: That Mugler had no right as a citizen of the United States to maintain and operate his brewery in the State of Kansas in violation of the laws of the State of Kansas, even though he intended the product for his own personal use and interstate commerce to points outside of the State. That, I think, is what was held in that case. Now, then, in my judgment, they could not say that that would be the law if Mugler has been operating a gristmill. If the State of Kansas had passed a law providing that all gristmills, even though operated in a way that could not offend on any ground of public policy ... in my judgment the Kansas law would have been clearly unconstitutional and void .... And in that sense I say that whisky stands on a different basis from flour."
* "[In the lottery case, Champion v. Ames 188 U.S. 321 (1903), the Court said:] `As a State may, for the purposes of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the widespread pestilence of lotteries and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another....' The Court says there that Congress has the right to regulate interstate commerce so as not to defeat the police powers of the State."
* "Remember that the police power of the State is inferior to the power of Congress over interstate commerce. At any rate, if it is not inferior, where the two come in conflict the commerce power of the Constitution is supreme. So that if the State can in the exercise of its police powers prohibit a certain use of a thing or prohibit the sale of a thing, or prohibit its manufacture, what is there in the Constitution of the United States to prohibit Congress from saying that there shall be no interstate commerce in things so intended for use in violation of the laws of the States. I see no reason. But I think you would have to discriminate between flour and whisky. I do not think you could put them on the same basis. I think the Supreme Court would hold this, that as to whisky, as Senator Rayner has suggested, it might be absolutely taken out of interstate commerce, but flour could not be."
* "Having power to prohibit interstate commerce in intoxicating liquors [Congress] has the lesser power, which must be included in the greater, of allowing interstate commerce in intoxicating liquors under certain conditions, and those conditions may be that the commodities shall be subjected to the police powers of a State the moment they cross the State line; not that the State law shall be the effective law and be approved by Congress, but Congress shall relinquish its hold upon the articles upon certain conditions when they arrive within a State." [Which seems to be why the Act is entitled: An Act divesting intoxicating liquors of their interstate character in certain cases - the certain cases language seems to refer to those cases when the state police power operates]
* "Has Congress the right to prohibit intoxicating liquors from entering into interstate commerce? If it has no such power, then I am willing to concede that it has no power to subject that liquor to the condition sought in the bill. If intoxicating liquors as a commodity have inherently all of the rights that clothing or bread could have, then we may well doubt the constitutionality of this law."
* "That having a right to prohibit interstate commerce in intoxicating liquors it has the lesser right, which is included in the greater, of declaring a condition for the allowance of the article to enter into interstate commerce that it shall be divested of its Federal protection as a commodity in interstate commerce whenever conditions arise, and that the condition which will so divest it may be that it is intended to be used in violaton of the police powers of the State."
WINE WARS, PART 7--WEBB-KENYON ACT:
The enactment of the Webb-Kenyon Act is consistent with the history that came before it in reconciling the state¡¦s police power over local affairs with the federal government¡¦s power over interstate commerce. As noted in Part 5, under the traditional balance of power, the states had essentially plenary power to regulate the manufacture and consumption of alcohol pursuant to its police power (including imposing state-wide prohibition), but did not have the power to discriminate against interstate commerce (Walling v. Michigan). But under the prevailing interstate commerce clause jurisprudence of the 19th century, states could prohibit internal manufacture and sale of alcohol, but could not prohibit its importation and resale in its ¡§original package.¡¨ This effected a perverse discrimination in favor of interstate commerce. As noted in Part 6, the Wilson Act attempted to correct this problem by providing that alcohol imported into the state for sale would be treated the same as local liquor. Moreover, the Supreme Court held in Scott v. Donald that the Wilson Act did not authorize states to discriminate against out-of-state sellers of alcohol. But the Wilson Act also left a loophole, in that it did not allow dry states to prohibit the importation of alcohol for personal use.
The Webb-Kenyon Act was passed in 1913 to enable the states to close this remaining loophole that essentially discriminated in favor of out-of-state sellers of alcohol and undermined the states¡¦ ability to enforce their laws in dry states. Webb-Kenyon prohibited, as a matter of federal law, ¡§[t]he shipment or transportation¡¨ of alcohol into a State of intoxicating liquor that ¡§is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State.¡¨ Webb-Kenyon, therefore, was an enforcement law, not a substantive law¡Xthe substance of Webb-Kenyon was grounded in state laws enacted pursuant to their police power. Thus, state laws first had to be a valid substantive exercise of the state¡¦s police power before it was incorporated into Webb-Kenyon and could be applied to interstate shipments of liquor. Thus, there was no indication that Webb-Kenyon was intended to modify the traditional limits on the state police power that forbade states from using the police power to discriminate against interstate commerce. Instead, the initial law that the state sought to enforce against interstate commerce must itself be an externally valid exercise of the state¡¦s police power. McCormick v. Brown, 286 US 131 (1932).
As Senator Kenyon himself stated about the Act, its purpose was to enable the states to better effectuate their police powers by eliminating the discrimination in favor of out-of-state sellers. He said: ¡§This bill, if enacted would not be a law to bring about prohibition. It would not be a law to stop personal use of intoxicating liquors ,,m Its purpose, and its only purpose, is to remove the impediment existing as to the States in the exercise of their police powers regarding the traffic or control of intoxicating liquors within their own borders.¡¨ 49 Cong. Rec. 760.
Kenyon also stated, "Every State in which the trqaffic liquors has been prohibited by law is deluged with whisky sent in by people form other States under the shelter of the interestate-commerce law. There are daily trainloas of liquors in bottles, jugs, and other packages sent into the State consigned to persons, real and fictitious, and every railway station and every express company office in the State are converted into the most extensive and active whisky shops, from which whisky is openly distributed in great quantities. Liquor dealers in other States secure the names of all persons in a community, and through the mails flood them with advertisements of whisky, with the most liberal and attractive propositions for the sale and shipment of the same.... It is eveident that under such circumstances the prohibition law of a State is practically nillified, and intoxicating liquors are imposed upon its people against the will of the majority." 49 Cong. Rec. 761 (1912) (Statement of Sen. Kenyon).
Other supporters of the Act echoed Senator Kenyon¡¦s views. Senator Sanders, for instance, indicated that the Act was designed to avoid the Court¡¦s precedents holding that a ¡§State [could] regulate the quality of liquor sold within the State, but it [could] not regulate the quality of liquor sold from outside the State.¡¨ The only effect he added, was that ¡§It only stops the business of selling liquor within dry territory by persons outside that territory in violation of law.¡¨
Webb-Kenyon, therefore, was intended to be a shield to protect dry states from being forced to receive imports in violation of its state laws, not to be a sword for wet states to engage in economic warfare against the products of other states.
The Supreme Court also recognized that Webb-Kenyon was merely an effort to extend the Wilson Act to reach this remaining hole in the states¡¦ enforcement power. As the Supreme Court noted in upholding the constitutionality of Webb-Kenyon, ¡§Reading the Webb-Kenyon Law in the light thus thrown upon it by the Wilson Act and the decisions of this court ... there is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act.¡¨ Clark Distilling Co. v. W. Maryland Ry. Co., 242 U.S. 311, 323-24 (1917). In particular, the court held, the purpose of the Webb-Kenyon Act was ¡§to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught.¡¨ Clark Distilling Co., 242 U.S. at 323-324. In contrast, nothing in the legislative history or elsewhere suggests that Congress intended to modify or repeal the non-discrimination principle of the Wilson Act recognized in Donald, which is particularly noteworthy in that the Court had decided Donald more than a decade beforehand.
In fact, contemporaneous court decisions applying Webb-Kenyon expressly held that the nondiscrimination principle of the Wilson Act was preserved in Webb-Kenyon. Interpreting Webb-Kenyon in 1916, for instance, the South Carolina Supreme Court held: ¡§The act of Congress of March 1, 1913, known as the Webb Kenyon Act, * * * does divest intoxicating liquors shipped into a state in violation of its laws of their interstate character and withdraw from them the protection of interstate commerce, [but] it evidently contemplated the violation of only valid state laws. It was not intended to confer and did not confer upon any state the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations, nor the power to make unjust discriminations between its own citizens.¡¨ Brennen v. Southern Express Co., 106 S.C. 102, 90 S.E. 402, 404 (1916).
Indeed, it was well-understood for decades (based on cases such as Brennen and other similar cases of the era) that Webb-Kenyon did not permit discrimination against interstate commerce. See Note, 85 U. Pa. L. Rev. 322 (1946-1937) (¡§The aim of the legislation, culminating in the Webb-Kenyon Act, which preceded the Twenty-First Amendment was to prevent the exclusive power of Congress over interstate commerce from rendering nugatory state police regulation of the liquor traffic.¡¨); Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va L. Rev. 174 (1916); Howard S. Friedman, 21 Cornell L.Q. 504 (1935-1936) (¡§The cases under the Webb-Kenyon Act uphold state prohibition and regulation in the exercise of the police power yet they clearly forbid laws which discriminate arbitrarily and unreasonably against liquor produced outside of the state.¡¨) Note, 55 Yale L.J. 817 (1945-1946) (noting that under the Act ¡§it was successively reiterated that only uses specifically forbidden by state law were prohibited, that interference with interstate commerce was permissible only in the exercise of valid state police power, and that discriminatory state statutes did not represent proper exercises of such power.¡¨). Brennen and similar cases simply evidenced the prevailing consensus that Webb-Kenyon did not create a new power for states to discriminate against interstate commerce.
Following Prohibition and its repeal, there was some concern that the enactment of the National Prohibition Act (which had implemented the 18th Amendment) had implicitly repealed Webb-Kenyon. In particular, it was thought that the National Prohibition Act may have eliminated the states¡¦ authority to define the term ¡§liquor¡¨ pursuant to their state police power. Indeed, this challenge was raised expressly in McCormick v. Brown. In order to quiet this objection, in 1935 Congress reenacted Webb-Kenyon. As one commentator observed in 1938, ¡§Most congressmen seem to have believed that the Webb-Kenyon Act was still in effect, but to make certain, it was reenacted in 1935.¡¨ 7 Geo. Wash. L. Rev. 406 (1938-1939).
This is where things stood at the time of the enactment of national prohibition by the 18th Amendment.
In reviewing the legislative history of the 21st Amendment in connection with preparing more recent posts, I noticed the following colloquy that nicely demonstrates that the purpose of Webb-Kenyon expressly was not to delegate Congress's interstate commerce power to the states. Cong. Rec. p. 4140 (Feb. 15, 1933):
SEN. BLAINE: "Then came an amendment ot hte Wilson Act known as the Webb-Kenyon Act.... The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actally entered the confines of the State...."
SEN. WAGNER: "Mr. President, will the Senator yield?"
SEN. BLAINE: "I see my able friend from New York shaking his head. I yield to him."
SEN. WAGNER: "I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce."
SEN. BLAINE: "I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same--that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress."
AN ECONOMIC ANALYSIS OF THE CONSUMER BANKRUPTCY CRISIS
Law Review editors can be on the look-out for my new article, a comprehensive empirical analysis of the causes of the consumer bankruptcy crisis over the past twenty-five years. I have not yet posted the paper as a working paper (I'll let you know when the working paper is available), but here's the abstract for those who are interested:
Since the inception of the first permanent American bankruptcy law in 1898, the intellectual and political understanding of consumer bankruptcy has been anchored in a model that views bankruptcies as resulting from household financial distress. For much of the Twentieth Century, this "traditional model" provided a plausible explanation of bankruptcy filing patterns and clear normative policy implications. Moreover, the widespread intellectual and social consensus on the traditional model was reflected in the enactment of the current Bankruptcy Code in 1978, which rests on the intellectual foundation of the traditional model. To this day, leading bankruptcy scholars adhere to the traditional model and its implications. Over the past twenty-fiver years, however, the traditional model has broken down. During a period of unprecedented prosperity and economic stability, personal bankruptcies have soared, raising fundamental questions about the validity of the traditional model.
This article argues that there has been an unacknowledged sea-change in the economics of consumer bankruptcy in America. This article first provides a scientific analysis of the traditional model to determine whether these new trends can be accommodated within the traditional model. It focuses on the key variables offered by the traditional model as components of household financial distress: first, high levels of household indebtedness, including the influences of credit cards and home mortgages; second, unemployment and downsizing; third, divorce; and fourth, health problems, health care costs, and lack of health insurance. A scientific analysis of the evidence demonstrates that although these factors can explain part of the background exogenous level of bankruptcies, as well as some regional variation in bankruptcy filing rates, they cannot explain the upward trend in bankruptcy filing rates over the past twenty-five years. The article then briefly discusses an alternative model of consumer bankruptcy that can explain the increased propensity for consumers to file bankruptcy through an examination of the legal, social, and economic institutions of the consumer bankruptcy system.
If anyone is itching to get their hands on it, I'll be happy to email you a copy of the current draft of it if you would like.