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Tuesday, September 28, 2004

Churches and International Human Rights:

Here's an excerpt from a Institute for Religion & Democracy study of "Human Rights Advocacy in the Mainline Protestant Churches (2000-2003)":

Research Design

We analyzed human rights criticisms made by four mainline Protestant denominations (the United Methodist Church, the Evangelical Lutheran Church in America, the Episcopal Church and the Presbyterian Church U.S.A.) and two ecumenical bodies (the National Council of Churches and World Council of Churches) over a period of four years (2000-2003) to determine which nations were criticized for human rights violations and why. We used the 2004 human rights assessments published by Freedom House as a benchmark for human rights in nations analyzed. A given church statement or document was considered to have criticized human rights in country X when, in the context of a discussion of human rights in country X, it passed negative judgment on specific current policies or actions of the government of X.

Results

Overall, criticisms of Israel amounted to 37 percent of the 197 human rights criticisms offered by the churches during those years, only slightly higher than the 32 percent of criticisms leveled at the United States. The remaining 31 percent of criticisms were shared by twenty other nations. For every one criticism of any other foreign nation, one criticism was made of the United States and one of Israel. Nearly all churches demonstrated this focus on the United States and Israel in their legislative actions, their statements, their news sources, or all three.

As a result, nearly three out of four human rights criticisms were made of nations designated as free (mostly the United States and Israel) by the Freedom House assessments. Those rated not free totaled 19 percent of criticisms, while partly free nations totalled only 8 percent of criticisms. Of the fifteen worst human rights offenders in the world, only five were criticized by the churches during the four year period studied.

Regions like the Middle East (apart from Israel) and Central Asia (former Soviet republics) were the most notable areas ignored by the churches in their human rights advocacy. Partly free nations, where church influence might be most effective in widening the limited civic space already open to indigenous Christians and other citizens, received the least attention.

Conclusions

The mainline churches are not adequately addressing the wide range of human rights abuses taking place in the world. Denominations are focusing on the United States and Israel as the primary perpetrators of human rights violations. Great attention to the United States may be expected from churches that find their homes there. But the dramatic focus on Israel as opposed to many more repressive regimes, including other U.S. allies known for human rights abuses (such as Saudi Arabia and Egypt), must be challenged.

In the 1970s and 1980s, the churches made the mistake of supporting oppressive Soviet-sponsored liberation movements around the world. They largely ignored human rights abuses in the Soviet Union and its satellite states, instead focusing on U.S. policy as the primary source of abuse. It appears that mainline denominations may be making the same mistake today with the Arab and Muslim worlds, ignoring many of the most serious abuses while apparently laying heavy blame upon the United States and Israel not only for their own lesser abuses, but also for the abuses of others. . . .

I can't speak to the accuracy of the details in the report, and I'm not an expert on the subject. But this seemed worth passing along, because it does strike me (as a layperson) as having a good deal of truth to it.

Thanks to Patrick Oden for the pointer.

"Respect the Box":

I was just thinking back to a particular set of incidents (the details need not detain us), and it struck me how important it is both to think outside the box and to understand why the box is there and why 95% of the answers are within it. So the catchy slogan "think outside the box," important as it is, needs to be complemented with an equally catchy antithesis. Hence, my proposal:

Respect the Box.

Surprise:

I've gotten a bunch of messages from people who say they're surprised that we haven't posted anything about the Laurence Tribe copying controversy (see here and here).

Here's a tip: Never be surprised when people don't invest a good deal of time and effort into stuff that they aren't really required to do. Actually, my tentative sense is that while the 19-word literal copying by Tribe was wrong -- and that he was right to apologize for it as soon as the charge was made -- the paraphrasing of the other material was probably not wrong. (I can't speak, of course, for my cobloggers on this.)

In a book aimed at a mass market audience, which doesn't have footnotes or endnotes (and publishers, I'm told, often dislike having footnotes and endnotes in such books, since they make the book seem more daunting and add pages), it's legitimate to rely on facts reported by others without having to prefix each sentence with "As Professor X said, Y got 100,000 votes more than Z, but lost in the electoral college." Nor is there a need to credit people for short phrases like "vagaries of the electoral college," where the alleged novelty is simply the use of the word "vagaries." In a law review article, you'd drop a footnote, but when you don't have footnotes, you'd often just generally list the book in a bibliography and be done with it. Copying really original ideas from another book is a different story, but I really didn't see much of that in the charges against Tribe.

But I say "tentative," because this is the sort of stuff that requires work to reach an informed opinion about, especially when the charges are allegations of personal misconduct, and allegations in my own professional field, where my judgments are likely to seem like expert judgments and not just a layperson's speculation. I don't want to give an off-the-cuff definite answer. Rather, I'd have to look at the books (I asked the library for them yesterday, but haven't gotten them yet); check to see the quotes in context; look carefully again at all the quotes; think some more about what the norms are or should be in this particular medium (a professor writing a book for a lay audience, without footnoting); and more.

That, as I said, takes work. Work takes time, especially when it's not your day job. At some point, the work becomes more trouble than it's worth, which means that I might conclude that I don't want to publish any definite view on this subject at all. In fact, I wouldn't have even taken the time to write this post if so many people hadn'tt e-mailed me about the subject.

So please, never be surprised that we're not blogging about something, and especially not when blogging about that something actually requires a good deal of time and effort. Sometimes we'll invest that time and effort, if we're interested enough, and if we're inclined to set aside our other business. Sometimes we won't. Nothing at all surprising about it.

Digital Evidence and the New Criminal Procedure: A draft of a new forthcoming essay of mine, Digital Evidence and the New Criminal Procedure, is now available on SSRN. The essay studies the differences between traditional criminal investigations and investigations into computer-related crimes, and argues that computer-related crimes will trigger new rules of criminal procedure in response to those differences. It's a fun and relatively short piece — at least by the standards of law reviews — and will be published as an essay in the January 2005 issue of the Columbia Law Review.

  To download the current draft, click here, scroll down to the bottom of the page, and click on "Download document from SSRN." As always, comments from VC readers are welcome. I am particularly interested in comments from any computer geeks out there who might be able to point to errors or omissions in my technical discussions. Here is the Essay's introduction, which should give you a flavor of the piece:
This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.

Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.

This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.

Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.

This Essay will proceed in three parts. Part One compares the basic mechanisms of traditional crimes and computer-related crimes. It explains how the switch from physical to electronic crimes brings a switch from physical evidence and eyewitness testimony to digital evidence, and how investigators tends to use very different methods of collecting the two types of evidence. Part Two turns from the facts to the governing law, focusing on the Fourth Amendment's prohibition on unreasonable searches and seizures. It shows that existing Fourth Amendment doctrine is naturally tailored to the facts of physical crimes, but that a number of difficulties arise when that doctrine is applied to the facts of computer crime investigations. Part Three argues that new rules are needed to govern digital evidence collection, and offers preliminary thoughts on what those rules might look like and what institutions should generate them. It also shows that courts and Congress already have begun responding to the problem of digital evidence with a number of computer-specific rules.
Please send any comments to okerr at law.gwu.edu.
Justice:

Fellow lawprof Joe Olson passes along this quote, from John O'Sullivan:

This high-minded timidity [of treaties and conventions enforced only against those who agree in advance to be bound by them] permeates modern culture at high and low levels. For instance, a recent thriller about hostage-taking, "Man on Fire," directed by Tony Scott and based on a novel by A.J. Quinnell, received harsh critical reviews precisely because it seemed to approve of revenge and vigilantism.

Creasy, played by Denzel Washington, is a burnt-out former mercenary who becomes a bodyguard to a young girl in Mexico City. She gradually draws him back from his suicidal despair by her frank affection. When she is kidnapped and apparently murdered, he methodically sets out to find and kill the men responsible — in very brutal ways. As in the 1970s Charles Bronson movie, "Death Wish," the viewer essentially sympathizes with Creasy. The critics thought this a crudely vicious message on both occasions.

But as Bacon pointed out: "Revenge is a kind of wild justice." It will inevitably — and arguably rightly — become the resort of decent people when law and government fail to deliver justice. Post-modern governments fail in just that way. Humanitarian bodies such as Amnesty International are even worse: They practice a sort of unilateral civil libertarianism that holds governments to account for the smallest infraction of civil liberty but treats terrorism as a natural disaster. Transnational bodies like the U.N. and the EU are worse — they seek to take the weapons of war and capital punishment from us in our struggles against terrorism, slavery, piracy and hostage-taking and to force us to rely instead on their own paper resolutions and elevated principles.

All these responses — from the critical reactions to "Man on Fire" to the E.U.'s prohibition of capital punishment — are overcivilized. That sounds almost like a compliment, as if it meant more civilized. In fact, to be overcivilized is to be less civilized because genuine civilization includes a robust willingness to enforce its order and truths on anarchy, violence, murder and superstition.

As long as we remain overcivilized, anarchy, violence, murder and superstition will continue their sinister recovery — until one day you may think you hear your own mother's voice [pleading for your life] on the network news.

There are obvious reasons not to take this argument to its logical conclusion, which might push us from the overcivilized to the undercivilized; the point it makes is one of those points that is valid, but has to be kept in mind alongside some equally valid points on the other side. But it is indeed a point that needs to be remembered.

Follow-up as to Tory v. Cochran:

One item I forgot to ask -- will Johnnie Cochran decide to argue the case himself? He was represented in the California Court of Appeal by two lawyers from Nemecek & Cole, a fairly small L.A. firm; and he's not primarily an appellate lawyer or a First Amendment lawyer, though he did argue and mostly win the Parks v. LaFrance Records appeal last year. If all he wanted to do was maximize his chances of winning, he'd probably get a top Supreme Court litigator to argue the case for him. (Such litigators cost a lot of money, but Cochran's own time is worth a lot of money, and it takes a lot of time to prepare for an oral argument.)

Still, can Cochran pass up what might be his one chance to argue before the Supreme Court, especially when there's really not that much at stake for him if he loses? I don't know much about the man, but many is the lawyer who'd jump on that opportunity. Hey, if nonpracticing lawyer Michael Newdow and nonlitigator-CPA-Certified Financial Planner Silvia Ibanez can do it, why not Johnnie Cochran?

The one downside is that it would attract still more attention to the case, which after all is about a client's allegations of Cochran's malfeasance. But the allegations have been explicitly found false, and sound not very plausible (they're mutterings about a conspiracy, by the sort of person who follows his sentences with multiple exclamation points). "Johnnie Cochran argues before the U.S. Supreme Court" is the sort of story Cochran might like. Hey, "Eugene Volokh argues before the U.S. Supreme Court" is the sort of story Volokh might like (not that it's ever likely to happen), so why shouldn't Cochran?

Related Posts (on one page):

  1. More on Johnnie Cochran:
  2. Follow-up as to Tory v. Cochran:
  3. Tory v. Cochran:
What Kerry was doing at Yale (as seen through the eyes of the Yale Daily News). As the election has drifted into deadly serious exposes of the lives of George Bush and John Kerry in the early 1970s, I thought a look back at a lighter time in their lives might be fun (no, there are no smoking guns in this stuff).

Last February, the Yale Daily News had two interesting stories about Kerry at Yale--one a mostly positive news profile, the other a mostly negative editorial. Both are interesting (and were largely overlooked at the time).

The mostly positive news story about Kerry at Yale:
And although Kerry was chairman of the Political Union's smallest party -- the Liberals -- he gained enough support across the political spectrum to win the presidency late in his sophomore year. Presiding over the Political Union during the heated presidential elections of 1964, Kerry even earned the admiration of students on the other side of the aisle, said former Party of the Right chairman John McGonagle Jr. '66.

Kerry's selection as class orator surprised no one, since he had spent much of his Yale career speaking to classmates in his distinctive Massachusetts accent.

"I think it was a cultured accent, and it's frankly a senatorial accent," Abbott said. "It just sounded awfully funny to hear this accent out of an 18-year-old kid." ...

Yet in Kerry's day, as Yale President Kingman Brewster began liberalizing the Yale admissions process, a divide remained between prep school graduates and students who attended public schools. To some students who had not attended New England boarding schools, Kerry seemed like the "ultimate preppy," Abbott said.

"At that time, I think he had a bit of a reputation for standoffishness, which I think was a bit well-deserved," said Robin Landis '66, who played with Kerry on the soccer team.

But Kerry's friends say his reputation for aloofness -- which led the New Republic to run a cover story last year asking, "Can John Kerry Make People Like Him?" -- is inaccurate.

"I think John as an undergraduate at Yale had some of the same rap that he gets today, that he's overly serious, that he takes himself too seriously," said Frederick Smith '66, a fellow member of Skull and Bones who later founded the FedEx Corporation. "I think that's really a misnomer, because he's actually a lot of fun."

Kerry certainly was serious at Yale. Because he often woke up at 5 a.m., his suitemates gave him a single, Barbiero said. Between his sports teams, his political activities, and his classes, Kerry did not have much time to spare.

"John was just a guy who was very impatient," Barbiero said. "He didn't like lines -- he had so much energy, he had no patience to queue up."

... "John was a person who took the process of politics very seriously and he gave it a great deal of respect," McGonagle said.

But Kerry's YPU presidency was not universally supported. During his tenure, a group of younger students split off from the Liberal Party to create a new Party of the Left. Members of the new party said Kerry's vote against a measure supporting a progressive income tax helped instigate their secession.
The mostly negative editorial:
Apparently, one of the first things he [Kerry] told his freshman year roommates was that he was going to be president one day. He clearly had nothing better to think about, such as de-bunking his bed or freshman English. Okay, fine, we all did some pretty silly stuff when we arrived at Yale. Kerry's problem was that he apparently never got better during his years at Yale.

Just like many members of the YPU, Kerry was an amazing speaker. In fact he was probably the best. And it seems that at Yale, he was generally disliked.

The Yale Liberal Party, of which I am a member and John Kerry used to be chairman, passes on many unpleasant stories about him. According to Liberal Party lore, Kerry was among the worst chairs in its history. Jorge Dominguez, currently a professor at Harvard and a member of Kerry's Liberal Party Executive Board, reports that under Kerry's leadership the party went on YPU probation. Probation means that the party's leader could not get enough of the party's members to sign a YPU attendance roster. Although getting people to sign in turns out to be a surprisingly arduous job, very few chairmen fail to do it in the end. Not getting enough signatures suggest one of two things: either the chairman faced some unfortunate circumstances or he has some personality problems. According to Dominguez, Kerry's leadership caused his probation.

In order to get back at Kerry, members of the Liberal Party formed the Dixwell Society. By now, the group is largely defunct, although it still officially meets during Liberal Party reunions and its story gets retold for everyone wishing to hear. The society's major point was to include every former chairmen except one who most people disliked. You can guess who. In addition, the News' article reports that due to its conflict with Kerry part of the Liberal Party split off to form the Party of the Left.
At Yale (probably in 1971) I remember seeing John Kerry speak against the war in Vietnam. I was mightily impressed. He struck me at the time as "Kenedyesque," and I thought he would make a great President one day, though I thought him probably too radical to get elected.
Tory v. Cochran:

The Supreme Court has just agreed to hear a First Amendment case involving injunctions against speech. Ulysses Tory, one of Johnnie Cochran's ex-clients, started accusing Cochran (apparently falsely) of all sorts of bad things, and picketing his office to publicize these allegations. Cochran sued, the court found that the statements were libelous (the trial was held before the judge, without a jury), and the court issued a permanent injunction that barred Tory from (among other things) "(i) picketing Cochran [or] Cochran's law firm; (ii) displaying signs, placards or other written or printed material about Cochran [or] Cochran's law firm; (iii) orally uttering statements about Cochran [or] Cochran's law firm."

The California Court of Appeal upheld the injunction; it concluded that the injunction wasn't an unconstitutional prior restraint because "Although a prior restraint can be presumptively unconstitutional, that rule has no application where, as here, an injunction against a private person operates 'to redress alleged private wrongs,' not to suppress a legitimate publication." In context, it seems that the court was trying to distinguish speech on matters of so-called "legitimate public concern," that generally can't be enjoined, from speech on matters of supposedly "private concern," such as a lawyer's supposedly cheating his client.

I predict that the Supreme Court will overturn the lower court decision. I also predict that the vote will be 9-0, though I'm less confident of that. (Warning: My predictions of Supreme Court decisions are notoriously unreliable, and yet I persist in being confident about at least some such predictions. How does that make any sense?)

Here's my thinking: There's some controversy over whether a court may enjoin libelous statements after a finding on the merits that the statements are indeed libelous. The likely answer is that it can, since such libelous statements are unprotected by the Constitution. (See this article for more.)

But here the court enjoined all statements (in certain media) by Tory about Cochran, without any regard for whether they are libelous. The statement "I think Cochran is evil because he represented O.J.," clearly a constitutionally protected statement of opinion, would be enjoined, too, as would true factual allegations about Cochran. That can't be permissible. And even though the Court has said that statements on matters of private concern are more restrictable in some contexts — chiefly when the government is acting as employer, or when the statements are false — it has stressed that they are nonetheless constitutionally protected. They can't be enjoined, when they're constitutionally protected opinion, simply because the speaker has said unprotected things in the past.

I also think this case illustrates the defects of the public concern / private concern line, a matter that I have discussed at length in this article and in the last six pages of this article. Criticisms of prominent lawyers are matters of legitimate concern to the public as well as to the ex-client who feels wrong. If they involve false statements of fact, they may be properly punishable, in some situations even if they're on matters of public concern. But if they involve true statements or statements of opinion, they should remain protected. I doubt, though, that the Court will have to comprehensively reexamine this distinction in this case: It will be enough for the Court to say (as it did in Connick v. Myers) that even statements on matters of private concern are constitutionally protected (at least against injunctions imposed on private citizens, as opposed to firing of government employees), and can't be enjoined if they're opinions or true statements.

Ann Althouse ponders John Kerry. In a couple of thoughtful posts (here and here), Wisconsin law professor Ann Althouse recounts the evolution of her thinking about John Kerry. They are worth reading, whomever one favors in the election.
Supreme Court Agrees to Take Eight Cases: SCOTUSBlog has the scoop.

  The most interesting case is Kelo v. New London, No. 04-108, which considers whether the Takings Clause allows governments to take real property under its power of eminent domain for economic development purposes. The case was brought to the Court by the Institute for Justice, and our own former co-blogger Sasha Volokh had some involvement in this case at the trial stage. The Connecticut Supreme Court's opinion in the case is available here.
Rooting for Bad News?

At Slate, Christopher Hitchens asserts that at least some Democrats are hoping for bad news in Iraq (via Roger Simon):

There it was at the tail end of Brian Faler's "Politics" roundup column in last Saturday's Washington Post. It was headed, simply, "Quotable":

"I wouldn't be surprised if he appeared in the next month." Teresa Heinz Kerry to the Phoenix Business Journal, referring to a possible capture of Osama bin Laden before Election Day.

As well as being "quotable" (and I wish it had been more widely reported, and I hope that someone will ask the Kerry campaign or the nominee himself to disown it), this is also many other words ending in "-able." Deplorable, detestable, unforgivable. ...

The plain implication is that the Bush administration is stashing Bin Laden somewhere, or somehow keeping his arrest in reserve, for an "October surprise." This innuendo would appear, on the face of it, to go a little further than "impugning the patriotism" of the president. It argues, after all, for something like collusion on his part with a man who has murdered thousands of Americans as well as hundreds of Muslim civilians in other countries. ...

If you calculate that only a disaster of some kind can save your candidate, then you are in danger of harboring a subliminal need for bad news. And it will show. What else explains the amazingly crude and philistine remarks of that campaign genius Joe Lockhart, commenting on the visit of the new Iraqi prime minister and calling him a "puppet"? Here is the only regional leader who is even trying to hold an election, and he is greeted with an ungenerous sneer.

The unfortunately necessary corollary of this—that bad news for the American cause in wartime would be good for Kerry—is that good news would be bad for him. Thus, in Mrs. Kerry's brainless and witless offhand yet pregnant remark, we hear the sick thud of the other shoe dropping. How can the Democrats possibly have gotten themselves into a position where they even suspect that a victory for the Zarqawi or Bin Laden forces would in some way be welcome to them? Or that the capture or killing of Bin Laden would not be something to celebrate with a whole heart?

Jim Lindgren:

I'm delighted to report that Jim Lindgren will be joining us here on this blog. Jim is a law professor at Northwestern University law school, and he's written about demographics, blackmail, bribery, gun ownership history, legal ethics, pornography, scholarship, and much more (see here for his impressively long and varied list of publications). I've long admired his work, and it's a great pleasure to have him coblogging with us.

Interim Report -- Day 1 of the Blogosphere Challenge: I've received lots of great responses to my three questions about Iraq. In case you haven't seen the initial post, here are the three questions I posed to the pro-war blogosphere:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
  Although I am accepting submissions until Friday at 5 pm EDT, I have received about 35 responses already in the first 24 hours of the challenge. Rather than wait until Friday to post all of the responses at once, I figured it would be better to start with the initial batch and then post links to more as needed.

  My hope is that VC readers of all ideological stripes will take some time and check out a number of the responses linked to below. I have listed the responses in the order I received them, so feel free to try some of the links near the middle or bottom of the list. Also, feel free to participate in the debate, whoever you are. If you are a pro-war blogger and you think that you could do better than the entrants below, please consider posting responses to the three questions on your blog and sending the URL of your post to me at orinkerr at yahoo.com. If you disagree with some of the responses or just have some thoughts on the matters they discuss, please feel free to leave comments on some of the blogs linked to below. Most of the blogs linked to below allow comments (unlike the VC itself — ironic, I know), and I'm sure the bloggers linked to below would enjoy receiving comments on their posts.

  Ok, enough preview. Here are the responses I have received so far:
Pajama Guy
The Spoons Experience
Cognative Dissident
ThoughtsOnLine
Error Theory
A.E.Brain
Bay Area Buzz
Rasmusen's Politics Weblog
Chicago Boyz
Thinking As A Hobby
Pete The Elder
The Shadow of the Olive Tree
Occams Tweezer
Cafe Hedonistix
tex the pontificator
From across the Pond
A Physicist's Perspective
MuD & PHuD
LibertyBlog.com
Sebastian Holsclaw
Fancy Store-- Bought Dirt
One Fine Jay
Moonage Political Webdream
heck.nu
I Could Be Wrong
par blog
Justus For All
Casualty of Capitalism
Dr. B's Finest
The Debate Link
Who Can Really Say?
Pharoah Speaks
The Religious Middle
Pirates Cove
Mad Anthony
Creative Destruction
Former Clerks Respond to Vanity Fair Story: A group of about 90 former Supreme Court clerks (along with some prominent practitioners) have signed a statement about the recent Vanity Fair article on Bush v. Gore. An excerpt from the statement:
  [T]hese breaches of each clerk's duty of confidentiality to his or her appointing justice — and to the Court as an institution — cannot be excused as acts of "courage" or something the clerks were "honor-bound" to do. To the contrary, this is conduct unbecoming any attorney or legal adviser working in a position of trust. Furthermore, it is behavior that violates the Code of Conduct to which all Supreme Court clerks, as the article itself acknowledges, agree to be bound.
  Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court.
  Given the polarization that seems to infect nearly everything relating to Bush v. Gore, it is perhaps worth noting that most of the signatories clerked for the Justices in the Bush v. Gore majority. As far as I know, no former clerks of the Bush v. Gore dissenters signed on.**

  In any event, Tony Mauro has more on the story here. Thanks to Howard for the link.

  **UPDATE: A reader points out that one of the signatories, Michael Leiter, clerked for BvG dissenter Justice Stephen Breyer in OT01.

Monday, September 27, 2004

"The Cult of Che":

Paul Berman in Slate rightly condemns the popular cult of Che Guevara.

Banned Bibles, books, and stem cell research:

Last week, I blogged about a Republican political mailing whose "cover shows a Bible with the word 'BANNED' across it and a photo of a man, on his knees, placing a ring on the hand of another man with the word 'ALLOWED.' The mailing tells West Virginians to 'vote Republican to protect our families' and defeat the 'liberal agenda.'" (The quote is from an AP story.)

Some readers complained, quite harshly, that this mailing was "dishonest," because of course liberals aren't trying to ban the Bible. I was skeptical: It seemed to me that in context this would be understood as referring not to outright criminalization of the Bible (precisely because that's so highly implausible), but rather to the exclusion of the Bible and Bible verses (such as the Ten Commandments) from public school curricula and from posting in government buildings and parks.

I've thought a bit more about this over the weekend. In response to my request for the full text of the mailer, readers sent me this page and this one; the covers had already been posted here. Readers also pointed to two other uses of "banned": (1) the American Library Association's use of "banned books" to refer to books that were merely excluded from public school curricula, and (2) the references to a "stem cell research ban" to describe the Bush Administration's decision to substantially limit federal funding for stem cell research. (See, for instance, this Kerry press release, and the Spinsanity criticism of the "stem cell research ban" locution; thanks to Jim Christiansen and John Vecchione for reminding me about the stem cell research point.)

Here's what I've tentatively come to on this. First, I agree the use of "ban" in any of these situations is imprecise and potentially misleading — it may make people assume that someone really is flatly outlawing something, rather than just denying it government funding or a place in government schools or on government property.

But, second, whether the usage is actually misleading depends on how people are likely to perceive it. If the literal meaning is clearly extremely implausible (such as that the liberals would actually criminalize private possession and distribution of Bibles), then people are more likely to recognize the alternative meaning. And this is especially so if the usage is in a medium that's known for hyperbole (such as political mailers), then I suspect that people will discount it in some measure. This is why, having read both the cover separately and the cover and the insides together, it seems to me that the flyer is likely to be understood as making a plausible allegation — that liberals are seeking to ban the Bible from public schools (at least in most contexts) and from government-run displays — rather than a wildly implausible one (that they're seeking a total outlawing of the Bible).

Some of my correspondents suggested that the mailers would reach such a partisan and unreasonable audience that the readers would believe that liberals are really trying to prohibit anyone from owning or distributing Bibles. That just strikes me as implausible — but in any event, presumably anyone who believes this of the liberals is already a very firm conservative, and one who's likely to vote against liberals. The swing voters, or the ones who might not show up, are probably not going to make such an extreme assumption about liberals.

Finally, I think that the talk of the supposedly already implemented "stem cell research ban" is more likely to be misleading, especially if it's in a supposedly neutral press account but also if it's in a political press release. A total ban on stem cell research, federally funded or not, is (unfortunately) not implausible. Many people who haven't been following this debate might reasonably assume that a "stem cell research ban" is referring to a true criminalizing of stem cell research, and might thus come away with a mistaken impression of what the Administration has done. But I don't think that many people would reasonably assume that the "liberal agenda"/Bible/"banned" claim is indeed referring to a true criminalizing of Bible possession and distribution.

(Note that if the claim were simply that the "conservative agenda" would include a total ban on stem cell research, this would not be unreasonable — I'm not sure that a second Bush Administration or a heavily Republican Senate would do this, but it's possible that they might. I object here to claims that the Bush Administration has implemented a stem cell research ban.)

Related Posts (on one page):

  1. Banned Bibles, books, and stem cell research:
  2. More about "Banning" the Bible:
  3. "Banning" the Bible:
  4. Banning the Bible:
Native American, American Indian, and Indian:

Slate's Explainer points out that more American Indians actually prefer the term "American Indian" to "Native American." Both, I think, are fine, but this further shows that "American Indian" isn't offensive or outdated, as some suggest. (That a group prefers term A over term B isn't a sufficient condition to show that term B is offensive -- but it is generally a necessary condition.)

The column, however, also says, without citing any studies, that

Perhaps the biggest goof is to drop the American from American Indian, as President Bush did at the ceremony while noting that 'like many Indian dwellings, the new museum building faces east toward the rising sun.' Native Americans/American Indians often dislike this simplest of monikers, as it can lead to confusion about whether a person is a tribal member or an émigré from the Indian subcontinent.

Yet a quick google search shows that quite a few Indian tribes seem to use "Indian" rather than "American Indian," at least where there is no likely confusion about which Indian they're talking about (and in Bush's speech there was of course no likely confusion).

Indians thus sometimes speak of the "X Tribe of Indians" (see, e.g., here, here, here, and here), but also even when the term "Indian" is used without the explicit "X Tribe of" qualifier (see, e.g., here, here, and here). I see no reason to think that these Indians or President Bush committed "the biggest goof," or any goof at all.

Unfortunately, though the column recognizes that the statements of particular American Indian activists aren't always accurate evidence of general preferences among rank-and-file Indians, and that surveys may reveal more than the high-profile complaints, it gives no survey evidence that American Indians really perceive this as a "goof." It simply says that they "often dislike this simplest of monikers," with no indication of how "often" this is. Is it that 10% of Indians dislike it? That 30% dislike it and 70% are just fine with it? That 30% dislike it, 20% like it, and the rest have no opinion?

I'll e-mail the Explainer people about this, and let you know if it turns out that indeed there is some serious evidence behind the "goof" claim.

Bainbridge on Wine and Food:

My colleague Stephen Bainbridge, of ProfessorBainbridge.com, has started a new blog devoted just to wine and food, ProfessorBainbridgeOnWine.com. Check it out.

More on Gender and Law Teaching Jobs:

Last week, I posted about some of the AALS statistics on law teaching jobs. I noted that those statistics suggest that women have a slightly higher rate of success than men in getting law teaching jobs; although women make up only about 35-40% of the faculty candidates, they tend to land about 45% of the Assistant Professor and Associate Professor jobs.

  A bit of digging around by a trustworthy source turned up an important caveat to those figures: these numbers cover both tenture-track and non-tenure track positions. The AALS calculated those figures only by comparing faculty candidates one year to faculty candidates listed in the AALS faculty book the next year. The book sometimes lists non-tenure-track faculty as well as tenture-track and tenure faculty, however. As a result, the apparent fact that female candidates have slightly more success than male candidates at landing some kind of teaching job doesn't address the more important issue — success rates at landing a tenure-track position. Given anecdotal evidence that female candidates tend to obtain an unusually high percentage of non-tenure track positions, it seems quite possible that the answer to this question is quite different from the picture suggested by the existing statistics on the AALS website.

  The AALS is apparently working on new statistics that address these issues, and I'll post a link to those stats when they come out.
The Responses Are Beginning to Come In

to my blogosphere challenge from earlier today. So far I have about a dozen responses, and they're great. But I want more, many more. So keep sending me your links to orinkerr at yahoo.com. I'll probably post links to the first set of responses later today, but it depends in part on how many I receive. Thanks to everyone who has participated.

Music:

I got two messages agreeing with some music recommendations made here many months ago, so I thought I'd pass them along, in case others can likewise profit from them:

I just wanted to thank you for an old music recommendation you posted a year and a half ago — Lucinda Williams' "World Without Tears".

I've got it on Those Three Days right now, and it truly is a stunning song. . . .

And,

I wanted to thank you to pointing me to Shawn Colvin's "Polaroids". What a wonderful song!

I was so wary then
The ugly American
Thinner than oxygen
Tough as a whore

Fantastic! I'm a longtime fan of Shawn, but I wasn't aware of this older (1992) album. . . .

I've gotten a great deal of pleasure — and even more than pleasure — from my favorite songs, including these two, and I hope that some of you might do the same.

"AN ECONOMIC ANALYSIS OF THE CONSUMER BANKRUPTCY CRISIS":

The working paper of my article "An Economic Analysis of the Consumer Bankruptcy Crisis" is now available on-line through SSRN, and it currently remains under submission and consideration by law reviews. Given the tidal wave of consumer bankruptcies in recent years, the time is ripe for a reconsideration of the prevailing model of consumer bankruptcy. This article presents a comprehensive economic and empirical analysis of the prevailing model. Here's the abstract again for those who missed it last time:

Abstract: 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-five 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.

I received many comments from readers when I last mentioned this article, especially with respect to the asserted effect of credit card indebtedness on consumer bankruptcy filings, and I promise when I get some time I will respond to some of them.

Debating the Invasion of Iraq -- Three Questions for the Pro-War Blogosphere: A year and a half have now passed since the invasion of Iraq. If you read the papers these days, the news coming from Iraq seems awfully depressing. The country is suffering about 70 hostile attacks a day, and 900 U.S. soldiers have died since the declared end of the hostilities — a rate of about 2 U.S. soldiers every day. Over 90% of Iraqis see the U.S. as an occupying force. Meanwhile, classified U.S. intelligence reports are pretty gloomy about what will happen in Iraq in the coming years. While U.S. public opinion on the war in Iraq seems evenly divided, right now the picture looks grim. I'm no expert in foreign policy, and wasn't sure whether the invasion was a good idea in the first place, but my sense is that attitudes towards the war in Iraq are becoming increasingly sour.

  So here's a little experiment in blogospheric dialogue. I would like members of the hawkish side of the blogosphere to post responses on their blogs to three questions I have about the situation in Iraq. In exchange, I'll post links to the answers on the Volokh Conspiracy. Here are my questions:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
If you are a blogger who is generally hawkish on Iraq and you choose to participate, please answer these three questions in a single post and e-mail the URL of your post to orinkerr at yahoo.com. (Please don't use my law.gwu.edu account for this one-- instead, use orinkerr at yahoo.com.)

  My plan is to gather the links to the responses and post the links here on the Volokh Conspiracy so others can read, debate, and analyze the posts. I plan to be pretty indiscriminate with the links, too: so long as a blogger is (or was) pro-war and answers all three questions in English without excessive profanity, I'll provide the link to it.

  I realize that this is a bit exclusionary — I want blogged responses, not e-mailed responses — but it's easy to start a blog and I want to provide lots of links rather than a few excerpts. Also, I'll put a time cap on this experiment: to get a link, the URL must be recieved at orinkerr at yahoo.com by 5pm EDT on Friday, October 1.

  Ladies and Gentlemen, start your blogs.

Sunday, September 26, 2004

Notice of Volcanic Unrest:

Is it just me, or does this sound (only to lawyers, of course) like something out of an alternate universe legal system? Should it be followed by, say, an Action to Quiet Seismic Title, or an Order to Show Magma?

Thanks to InstaPundit for the pointer.

Tabloid Investigation Leads to Terrorist Arrests:

It's too early to tell if these arrests will amount to anything, but if they're legit it's quite a story. The CIA and FBI may have a hard time catching terrorists, but at least the tabloid newspaper News of the World appears up to the job.

If You Want to Be A Law Professor,

be sure to check out posts here, here, and here from Wisconsin lawprof Gordon Smith. Smith is the appointments committee chair at Wisconsin this year, and offers his own perspective on how schools select faculty candidates.

Who Would Osama Vote For?:

Eric Muller finds some interesting bumper stickers.

DAVID BRODER--FIRST HEAL THYSELF: A David Broder column in today's Washington Post mourns the decline of journalistic standards and emphasis on accuracy in the modern media business. Given Broder's track record of sloppiness and bending the truth to score his own political points, however, his complaints seem somewhat misplaced.

Broder writes today:

Time was when any outfit such as Swift Boat Veterans for Truth that came around peddling an ad with implausible charges would have run into a hard-nosed reporter whose first questions — before he or she ran with the story — would have been, "Who the hell are you guys? What's your angle? What's your proof?"

Any Texan with a grudge against George Bush and the National Guard who suddenly produced a purported photocopy of an explosive 30-year-old order signed by a dead man would have been treated with the deep distrust he deserved by the reporters to whom he offered his wares. And no professional journalist would have made a call to the Kerry campaign encouraging a flack to contact this dubious source.

We've wandered a long way from safe ground in the news business. Sometimes I wonder if we can find our way back.


But Broder's track record seems anything but consistent with this admonition to ask "What's your proof?" Consider his column published in the May 19, 2002 Washington Post, "A Bipartisan Outrage," which was a discussion of the long-pending Bankruptcy Reform Bill. Although it obviously has been awhile since this column was published, Broder's complaints about the sloppiness "the other guys" in the news business forces me to blow the whistle. Broder's column contains an astounding number of half-truths and distortions. In the column, he applauds the gridlock in Washington that has blocked the final passage of the bankruptcy reform bill, notwithstanding overwhelming bipartisan support for the measure. Broder wrote at the time:

Gridlock would doom me to write yet again next year on a topic that has been widely ignored except on the business pages in the press. It would require me to rail again about the way in which business lobbying — lavish campaign contributions to President Bush and pressure from big home-state bank and credit card employers on such Democratic senators as Tom Daschle and Joe Biden — has made this a bipartisan outrage.

But writing repetitious columns is a small price to pay if a bill as filled with inequities as this one is delayed or ultimately defeated.


He then added:

Credit card companies and the banks that own them claim they are being ripped off by people who run up unsecured debt and then file for bankruptcy to avoid paying. This bill would basically say that any family or individual whose income at least equals the state median and who has $100 a month left over after paying for food, clothing, housing and transportation would have to work out a five-year payment plan with the bank rather than starting over with a clean slate.

Ostensibly, it is designed to catch wealthy scofflaws. But it is likely to be felt most harshly by middle-class individuals who file for bankruptcy — 1.4 million of them last year. Their average income was less than $25,000....


Note the patent dishonesty in the combination of these two sentences--the bill would apply only to those whose "income at least equals the state median." Yes, in the next sentence he states that the "average income" of those who filed bankruptcy was less than $25,000. In fact, according to the Census Bureau, the median national income in 2002 (the year his column was written) for a family of four, was $59,981, ranging from $46,671 in Arkansas to $75,505. If, as Broder expressly states, the bill applies only to those who make above the state median income, how could it "harshly" impact the middle-class filers who earned $25,000 the year before? Clearly, Broder either hasn't done his homework here, or he is pulling a fast one for political purposes.

Broder also writes:

Gridlock would doom me to write yet again next year on a topic that has been widely ignored except on the business pages in the press. It would require me to rail again about the way in which business lobbying — lavish campaign contributions to President Bush and pressure from big home-state bank and credit card employers on such Democratic senators as Tom Daschle and Joe Biden — has made this a bipartisan outrage.

Notably absent from Broder's characterization of the politics of bankruptcy reform is a recognition that most supporters of the legislation (including liberals such as Barney Frank) have supported the legislation on the simple basis that it is fair and appropriate for high-income bankruptcy filers to repay some of their debts in bankruptcy if they can. Moreover, his ridiculously oversimplified view of the political process ignores the intensity of lobbying by lawyers and other special-interests who oppose bankruptcy reform in part because tightening the bankruptcy laws would reduce the number of filings--which would reduce business for bankruptcy lawyers and others. In fact, while Broder singles out Daschle and Biden, he fails to mention: (1) that the most adamant opponents of bankruptcy reform were those politicians who have received the most amount of contributions from lawyers, and (2) a study by the American Bankruptcy Institute that finds little correlation between lobbying money and votes on bankruptcy reform. In fact, a comprehensive study of voting patterns in Congress concludes that only about 15 of the 306 votes in favor of Bankruptcy Reform in the House of Representatives can be plausibly attributed to lobbying expenditures by financial industries. I have described all of this in more detail in law review articles, which can be found here, here, and here.

He writes in today's column, "The way to the top of journalism was no longer to test yourself on police beats and city hall assignments, under the skeptical gaze of editors who demanded precision in writing and careful weighing of evidence. It was to make a reputation as a clever wordsmith, a feisty advocate, a belligerent or beguiling political personality, and then market yourself to the media."

The issue here isn't whether bankruptcy reform is a good idea or a bad idea, which is an issue on which reasonable minds can disagree. Nor is it whether Broder is entitled to his opinion--as an opinion columnist, of course he is. The issue is that in his column on bankruptcy reform Broder's reporting on the actual facts is blatantly inaccurate and politically-motivated. He could have written a nuanced analysis of the issue, or reported that there are reasonable arguments on both sides as to the wisdom of the law. Instead, he distorted the facts for sensationalist and political ends. Given that he wrote the column two years ago, it seems a bit misplaced for him to now criticize his colleagues in the press for following his lead.
70 Attacks A Day:

The lead story in today's Washington Post reports that the number of enemy attacks in Iraq has reached 70 per day over the last few weeks, a considerable increase over other periods. About 20 attacks a day occur in Baghdad alone.

Kerry's Management Style: The NY Times has an interesting article in today's paper on Kerry's management style. An excerpt:
  Mr. Kerry is a meticulous, deliberative decision maker, always demanding more information, calling around for advice, reading another document - acting, in short, as if he were still the Massachusetts prosecutor boning up for a case.
  . . . .
   In interviews, associates repeatedly described Mr. Kerry as uncommonly bright, informed and curious.
  But the downside to his deliberative executive style, they said, is a campaign that has often moved slowly against a swift opponent, and a candidate who has struggled to synthesize the information he sweeps up into a clear, concise case against Mr. Bush.
  . . . .
  His attention to detail can serve him well on big projects, as it did when he sent aides scurrying across the country to find long-lost fellow Vietnam veterans who could vouch for his war record. But sometimes, his aides say, it is a distraction, as it was in early 2003, when they say he spent four weeks mulling the design of his campaign logo, consulting associates about what font it should use and whether it should include an American flag. (It does.)
Well, I Guess He Has To Retire Eventually:

Chris Geidner notes over at Blog DeNovo that speculation about retiring Supreme Court Justices is an old story; in particular, the NY Times was reporting "the widely anticipated retirement of John Paul Stevens" at the end of the Term as far back as 1994.

Useful Summary of Terrorism Prosecutions: In an appendix to a forthcoming law review article, Wake Forest University lawprof Robert Chesney lists and categorizes DOJ's anti-terrorism prosecutions. It's a pretty interesting list; to see it, go here, click to download the article, and scroll to page 105.

  Chesney identifies 33 terrorism-related prosecutions involving 92 defendants; provides a quick summary of the facts; and breaks down the cases by the charging strategies DOJ used. The current form of the appendix does not include the disposition of each case, but Chesney informs me that this is on the way; eventually the appendix will be online in the form of a searchable database along with information about how each case was resolved.

  Interesting stuff, and as far as I know it's information that the mainstream media has not generated on its own.

Friday, September 24, 2004

Slippery Slopes:

I'll be giving a talk on Mechanisms of the Slippery Slope next Tuesday, the 28th, from 12:30 pm to 1:30 pm in room 79A at the Stanford law school; Stanford lawprof Robert Weisberg will be commenting. The talk is being put on by the Federalist Society, but I hope that it'll be pretty nonpolitical, and will be of interest to liberals, conservatives, libertarians, and others.

Everyone is welcome, though I can't vouch for the ease of finding parking if you're coming in from outside Stanford.

"Under God" and Jurisdiction Stripping:

A bunch of people e-mailed me to ask about this subject, so I blogged about it today at GlennReynolds.com, where I've been guest-blogging this week. An excerpt:

The House of Representatives just passed a bill that says: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance . . . or its recitation."

The theory, as I understand it, is to keep the federal courts from striking down the words "under God" in the Pledge. The Ninth Circuit federal court of appeals, of course, held in 2002 that the teacher-led recitation of those words in government-run schools violated the Establishment Clause, even when pupils were legally allowed to remain quiet if they preferred. Earlier this year, the Supreme Court set aside that decision, but on procedural grounds, without confronting the legal question.

The trouble is that the proposed law might have the perverse effect of jeopardizing the "under God" rather than preserving it. . . .

Jonathan Rauch on campaign finance law restricting free speech:

See his column here; an excerpt:

Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years.

An exaggeration? Judge for yourself. Consider the sorts of cases the Federal Election Commission now finds itself deciding:

Item -- In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy's pro-gun documentary ("The Rights of the People") on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as "electioneering communication." Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.

Item -- On September 9, the FEC ruled that a conservative group called Citizens United was not a "media organization" and therefore could not use unrestricted money to broadcast ads marketing a book and film critical of Democratic presidential candidate John Kerry. "Not everyone can be a media organization," said one FEC commissioner.

Item -- Also on September 9, the FEC ruled that the Ripon Society, a Republican group, could run TV ads touting the anti-terrorism efforts of "Republicans in Congress" because no political candidate was referred to in the ads.

Item -- That day, the FEC also ruled that a Wisconsin car dealership, called the Russ Darrow Group, could continue using its own name in its car ads during the election season. Russ Darrow Jr., the patriarch of the company and father of its current president, was running for Senate in Wisconsin (he lost in the primary). The FEC found that the dealership's ads were not "electioneering" because they did not feature the candidate himself.

Set aside how you or I might have decided any of these cases. Focus on the fact that federal bureaucracies -- the FEC and ultimately the federal courts -- are now in the business of making such decisions. . . .

Occidental College's censorship of radio station --

The Foundation for Individual Rights in Education has an op-ed on this.

A bit more on Presbyterians and Israel:

Some readers pointed this out, and Eugene Kontorovich (the author of the op-ed I linked to on the subject) also confirms it: The divestment action was taken, as the op-ed mentioned, by the Presbyterian Church (U.S.A.); but there are other Presbyterian denominations in America that didn't join in that. No word on what the Judean People's Liberation Front has to say about that.

Kerry wins 75% support from key demographic:

See here for the story. Many thanks to my future sister-in-law, Hanah Metchis.

More about "Banning" the Bible:

A reader writes, apropos the Republican mailer whose cover suggested that the "liberal agenda" involved "Banning" the Bible:

I understand the legalistic impulse to look at the fine print but could you explain your readers how fine print regarding the precise intention of the word "banning" would invalidate that the mailer is dishonest? By contrasting the "gay marriage allowed" to the "Bible banned" in such a graphic manner, the mailer unambiguously creates the IMPRESSION (which is what it intends to do) that bibles will not will be allowed in Arkansas if "liberals" would have it their way. No fine print is going to change that. Surely creating such an impression is dishonest.

A reference to "banning" the Bible is ambiguous. It could mean utterly prohibiting it, subject to criminal penalties for private possession and distribution — the literal meaning, but of course not a very plausible one. Or it could also mean, as this post points out (citing the usage by the American Library Association), excluding the Bible from some places, such as public school curricula, monuments in government buildings (e.g., Ten Commandments displays), and so on. It could also mean legally punishing certain uses of the Bible, such as workplace postings of anti-homosexual verses (perhaps under the rubrics of hostile work environment law, hostile educational environment law, or hostile public accommodations environment law).

Consider an analogy: Say that a Democratic flyer complained of a "conservative agenda" that involved "destroying a woman's right to choose." Literally, "right to choose" might be read as meaning the right to, well, choose things — like one's husband, one's religion, whether to own a gun, and so on. But we wouldn't condemn the flyer as dishonest, on the grounds that conservatives have no desire to interfere with many choices on women's part. In context, it's pretty clear that the flyer is referring to a particular thing that's often labeled (though controversially so) as the "right to choose": the right to choose to have an abortion. And many conservatives do indeed want to (whether rightly or wrongly) block women from being able to choose abortions, at least in many circumstances.

Before we condemned the flyer, we'd have to see what it said on the inside: If it elaborated the cover claim as "conservatives want to reduce women to slavery, as property of their husbands," then one would certainly condemn that as dishonest. If it elaborated it as "conservatives want to prevent women from being able to choose abortion," then it would not be dishonest (though it might not be as nuanced as what a more careful academic analysis would provide). If it didn't elaborate at all, then we'd ask how most readers would perceive the statement — especially keeping in mind that readers expect political mailers to involve some degree of hyperbole and oversimplification — and if we concluded that they would perceive it as applying only to abortion, we'd again say that the statement isn't dishonest.

Likewise here. "Right to choose" is somewhat less ambiguous than a reference to a book being "banned" — the purely literal meaning of "right to choose" (right to choose generally, as opposed to abortions in particular) is more rarely used than the purely literal meaning of "banning" books. Still, in context, I suspect that most people seeing a claim that the "liberal agenda" involves "bann[ing]" the Bible would understand it as referring to something less than a criminal prohibition on all possession of the Bible; rather, I suspect that they'd probably see it as something more like the American Library Association's definition, or some other more modest meaning. The insides of the mailer could confirm this suspicion, or rebut it. But without seeing the insides, I don't think that we can condemn the mailer cover as dishonest.

"Banning" the Bible:

Reader Matt Johnson reminds me that the American Library Association -- hardly known as a bastion of Republicanism -- defines "banning" of books to include "remov[al of] material from the curriculum" of a public school. Under that definition, many liberals do support "banning" the Bible: If a school teaches the Bible as part of its normal curriculum (except in unusual contexts, such as for instance a comparative religion class, likely in the upper grades), then liberals would want it to be "removed . . . from the curriculum."

This is, of course, apropos the Republican mailer that suggests that the "liberal agenda" would lead to the Bible being "banned" and same-sex marriage being "allowed." As I mentioned in my original post, it's hard to tell whether this is "dishonest" (as one correspondent of mine suggested) without seeing the inside of the mailer. If the senders are really claiming that liberals would want to criminalize all distribution and reading of the Bible, even on private property, then that charge is pretty dishonest. But if the inside of the mailer makes clear that they are just claiming that liberals would want to ban the distribution and use of the Bible in public schools (again, except in certain unusual contexts) -- the very meaning that the American Library Association uses -- then there's no dishonesty there.

Incidentally, I would not use the word "ban" myself to refer to removal of a book from a curriculum; government agents must select what's in the government-run schools, and if a lower-level employee (a teacher) selects a book, I don't think there's anything inherently wrong in a higher-level official (a principal or a school board) changing that selection. The particular choice may be foolish, but because it's an unwise decision to remove a book from the curriculum, not because all such decisions are wrong. Nor would I call them "bans," since the book is still available elsewhere.

Nonetheless, if this is what the Republican mailer meant by the Bible being "banned," then the American Library Association usage further illustrates that such a meaning isn't inherently dishonest, and -- even if imprecise -- probably within the boundaries of legitimate political hyperbole. But, as I've said before, if anyone can pass along to me the contents of the inside of the mailer, we may get a better idea of what meaning of "banned" was involved.

Thursday, September 23, 2004

More on Nebraska ACLU seeking gag order on the press:

I wanted to see the ACLU's brief in support of its motion asking a court to order the Omaha World-Herald not to publish the name of an ACLU client-plaintiff. The ACLU was kind enough to pass along the court's order denying the motion, and the text of the motion itself, but it said that it couldn't pass along the brief supporting the motion -- which contains all the argument and citations of authority -- because all other documents are sealed. (The judge had already, I think at the ACLU's request, restricted the parties from revealing the plaintiff's name, and thus presumably ordered some documents to be sealed; the question in the motion was whether he could restrict newspapers who aren't parties to the case from doing the same.)

So I can't really evaluate the merits of the ACLU's arguments as well as I'd like. But just focusing on the existing law, and setting aside any creative arguments that the ACLU might have made and I haven't thought of, it's not surprising that the judge denied the ACLU's request, and it would be surprising if that denial were overturned.

Max Boot on Wars, Presidents, and Errors:

Here's his L.A. Times column; I pass it along (with all the proper permissions) as full text rather than just as a link, so that people don't have to go through the L.A. Times registration scheme. I'm no expert on the subject, but Max is (he's a fellow at the Council on Foreign Relations, and author of The Savage Wars of Peace: Small Wars and the Rise of American Power); and while I don't know whether he's right, I certainly hope that he is:

History Can Offer Bush Hope ...

John Kerry is right to accuse President Bush of "colossal failures of judgment" in Iraq. These range from decisions taken in the early days of the occupation, such as the premature disbanding of Iraq's army, to more recent missteps, such as allowing Fallouja to become a terrorist sanctuary.

Reading the depressing headlines, one is tempted to ask: Has any president in U.S. history ever botched a war or its aftermath so badly?

Actually, yes. Most wartime presidents have made catastrophic blunders, from James Madison losing his capital to the British in 1814 to Harry Truman getting embroiled with China in 1950. Errors tend to shrink in retrospect if committed in a winning cause (Korea); they get magnified in a losing one (Vietnam).

Despite all that's gone wrong so far, Iraq could still go either way. (In one recent poll, 51% of Iraqis said their country was headed in "the right direction"; only 31% felt it was going the wrong way.)

Lest we be too hard on Bush, it's useful to recall the travails of the nation's two most successful commanders in chief, Abraham Lincoln and Franklin Roosevelt.

Lincoln is remembered, of course, for winning the Civil War and freeing the slaves. We tend to forget that along the way he lost more battles than any other president: First and Second Bull Run, Fredericksburg, Chancellorsville, Chickamauga.... The list of federal defeats was long and dispiriting. So was the list of federal victories (e.g., Antietam, Gettysburg) that could have been exploited to shorten the conflict, but weren't.

As the Union's fortunes fell, opponents tarred Lincoln with invective that might make even Michael Moore blush. Harper's magazine called him a "despot, liar, thief, braggart, buffoon, usurper, monster, ignoramus." As late as the summer of 1864, Lincoln appeared likely to lose his bid for reelection. Only the fall of Atlanta on Sept. 2 saved his presidency.

Most of the Union's failures were because of inept generalship, but it was Lincoln who chose the generals, including many political appointees with scant military experience. He ultimately won the war only by backing Ulysses Grant's brutal attritional tactics that have often been criticized as sheer butchery.

Roosevelt had more than his share of mistakes too, the most notorious being his failure to prevent the attack on Pearl Harbor, even though U.S. code breakers had given him better intelligence than Bush had before Sept. 11. FDR also did not do enough to prepare the armed forces for war, and then pushed them into early offensives at Guadalcanal and North Africa that took a heavy toll on inexperienced troops. At Kasserine Pass, Tunisia, in 1943, the U.S. Army was mauled by veteran German units, losing more than 6,000 soldiers.

The Allies went on to win the war but still suffered many snafus, such as Operation Market Garden, a failed airborne assault on Holland in September 1944, and the Battle of the Bulge three months later, when a massive German onslaught in the Ardennes caught U.S. troops napping.

Though FDR bore only indirect responsibility for most of these screw-ups, he was more directly culpable for other bad calls, such as the decision to detain 120,000 Japanese Americans without any proof of their disloyalty. Like Lincoln, who jailed suspected Southern sympathizers without trial, Roosevelt was guilty of civil liberties restrictions that were light-years beyond the Patriot Act. And, like Bush, Roosevelt didn't do enough to prepare for the postwar period. His failure to occupy more of Eastern Europe before the Red Army arrived consigned millions to tyranny; his failure to plan for the future of Korea and Vietnam after the Japanese left helped lead to two wars that killed 100,000 Americans.

None of this is meant in any way to denigrate the inspired leadership of two great presidents. Both Lincoln and Roosevelt were brilliant wartime leaders precisely because they were able to overcome adversity and inspire the country toward ultimate victory with their unflagging will to win. That's what Bush is trying to do today.

And, no, I'm not suggesting Bush is another Lincoln or Roosevelt. But even if Bush hasn't reached their lofty heights, neither has he experienced their depths of despair. We are losing one or two soldiers a day in Iraq. Lincoln lost an average of 250 daily for four years, Roosevelt 300 daily for more than 3 1/2 years. If they could overcome such numbing losses to prevail against far more formidable foes than we face now, it's ludicrous to give in to today's fashionable funk.

"Colossal failures of judgment" are to be expected in wartime; I daresay even John Kerry (whose judgment on Iraq changes every 30 minutes) might commit a few. They do not have to spell defeat now any more than they did in 1865 or 1945.

More on Vanity Fair and Bush v. Gore: SCOTUSblog has posted copies of the Vanity Fair article on Bush v. Gore, in case you haven't seen it. Part 1 here; Part 2 here.

  Will Baude offers some interesting comments on the article over at Crescat Sententia. An excerpt:
  Reading the VF article pushed me more closely to thinking that the decision was reached legitimately, by justices honestly trying to sort out the right answers to a mess of legal issues. I don't think that's the effect the author of the piece intended (unless the author is very very clever), but it's partially the result of useless little jibes . . .
  The authors attempt to defend their bias with the argument that it was mostly the liberal clerks who were willing to break their vows of confidentiality to speak to them: "...if this account may at times be lopsided, partisan, speculative, and incomplete, it's by far the best and most informative we have." But that apologia only justifies the bias in quotes and reported or guessed-at facts. It doesn't provide any explanation for the article's relentlessly partisan tone, bizarre mix of naivete and cynicism, and unconstructive and unsubstantiated jabs.
  UPDATE: Rick Hasen adds some thoughts here.
A Tough Market for Women?: The Legal Times has a story on law school faculty hiring entitled 'A Tough Market for Women.' The article notes that while most entering law school classes have close to as many women as men, most faculties remain male-dominated. The article makes the case that women are underrepresented among law professors for a number of reasons, ranging from the glass ceiling to the old boys' network:
  According to the Association of American Law Schools Statistical Report on Law School Faculty for 2002-2003, fully tenured female law professors make up 25.2 percent of law faculties nationwide and 34.2 percent of the total law faculty count. That's certainly progress from the 13 percent of female law school professors in 1991. But with that rate of growth — roughly 1 percent a year — it will take another 25 years for women to reach the 50-percent mark.

  . . .
  Studies also show that women are less likely than men to receive the coveted leadership positions. For instance, women hold 16 percent of all dean positions in the country, according to a study by the American Bar Association's Commission on Women in the Profession. The dean positions matter, observers say, because deans influence hirings and promotions.

  "It's safe to say that there's been considerable progress, but 20 percent is not 50 percent," says Joan Williams, a law professor and director of the Program on WorkLife Law at American University's Washington College of Law.

  Lisa Lerman, a Catholic University law professor, agrees. "Things have improved in general, but it really depends on the school."

  Why do women continue to lag behind?
  For the most part, the status of women law professors today merely reflects the "glass ceiling" for women in many professions. The reasons for its persistence are less clear: overt discrimination is either nonexistent or hard to prove. Nevertheless, a variety of factors that arise during the hiring or promotion process — including ones based on the personal choices of the applicants themselves — appears to cause a woman's career inertia at all levels of law schools.

  The article then discusses possible explanations for the low status of women within legal academia: the time demands required to earn tenure; the importance of the informal "old boys' network," which tends to exclude women; the likelihood that women are more caring than men, and therefore spent more time developing personal relationships with their students that results in less time for scholarship; discrimination against women in assigning committee work; and more.

  Unfortunately, the article overlooks a rather significant aspect of its statistical evidence. The statistics offered in the article describes the present percentages of male vs. female faculty members who are full professors or on faculties as a whole, instead of the gender ratios of recently-hired or recently-tenured law professors. This is important because most faculties were all-male not long ago; if a law school hires 50% women starting at a particular point, and women are promoted at the same rate as men, it will take a few decades before the older male faculty members retire and the overall ratio approaches 50%. Deans tend to be more senior, too, so you would expect those numbers to lag the most.

  I don't know of any statistics on the rate of tenure and promotion among law professors broken down by gender. The statistics on the entry-level tenure-track hiring process suggest significant gender equality, however. Over the last dozen years, the new professors at the tenure-track Assistant Professor and Associate Professor rank were 45.6% women, and 54.4% men. (See here, Table 8B) Further, the AALS statistics on success rates suggest that female candidates may actually have an easier time getting a law teaching job than male candidates do. From the period of 1991 to 2003, men who registered with the AALS found a teaching job 11.3% of the time, while women who registered with the AALS found a teaching job 13.9% of the time.

  This is particularly notable given the very troubling evidence that women tend to underperform as compared to men on several of the key criteria typically used to select faculty candidates. At elite law schools that tend to produce the most future professors, the evidence suggests that female students tend on average to get lower grades, tend to be underrepresented among those on law review at many schools, and also tend to be less likely to obtain prestigious clerkships. Despite this disadvantage, women candidates appear to find more success on the law teaching market than men. There are lots of possible explanations for this — perhaps men are more likely to try to get a teaching job even if they are not likely to be competitive — but it is consistent with the anecdotal evidence that most law school faculties consider it a "plus" when a faculty candidate is a woman.

  Is there a glass ceiling at tenure and promotion for female candidates? I don't know of any statistics on this question. As Brian Leiter has noted, law schools tenure a very high percentage of tenure-track professors; tenure is considered relatively easy to obtain. Given this, I find it a bit less likely than otherwise that the tenure hurdle would generate significant gender biases. I don't want to oversimplify a complicated issue. Law schools tend to hire and promote candidates who are willing and able to devote countless hours to study and writing, and on balance, for a number of reasons, this remains more socially acceptable for men than for women. The gender disparities among law students are real and very troubling. Still, my very tentative sense is that the slow pace of change in the gender ratios of law professors is due primarily to the long careers of professors more than any glass ceiling.
Online Bookselling: Ever wonder what percentage of people who look at a book's listing on Amazon actually purchase it? Here's one datum: I have a click through link to Amazon's listing of You Can't Say That! book on my academic home page, on the book's home page, and I also occasionally use this link on Volokh. Because I was curious about the question above, I signed up for Amazon's Associates program, which gives me a small commission on every purchase made through this link, and, more important for my curiosity, allows me to track both traffic and purchases. Since January 1 of this year, 1,040 people have clicked on my Amazon link to the book. Of those 1,040 people, eight actually purchased it (seven new copies and one used copy) for an incredible 130 to 1 ratio of browsers to purchasers (some of the individuals, however, may have purchased the book from Amazon at some other time, using another Amazon link). Note that these were people who already had enough interest in the book to click on a link to it, and many of them were likely reasonably familiar with the book already, if they visited from VC or the book's home page. Random browsing, one would assume, would result in a signicantly worse ratio of browsers to purchasers. Other relevant data: the book has a relatively modest purchase price on Amazon ($14), and its Amazon ranking has varied from a high of 59 (after I was interviewed by Walter Williams on the Rush Limbaugh show) to a recent low of 100,000. Conclusion: online bookselling, and bookselling in general, is a tough business!
The good news from an author's perspective, I suppose, is that my data suggest that sales reflect only a fraction of the total interest in a book. Of course, if you are trying to make a living writing books (which I'm not), that's also the bad news.
New Reviews of "You Can't Say That" I've linked to several new (or at least, new to me) reviews of my book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, on the book's homepage.

Wednesday, September 22, 2004

Banning the Bible:

A reader points to this story:

Campaign mail with a return address of the Republican National Committee warns West Virginia voters that the Bible will be prohibited and men will marry men if liberals win in November.

The literature shows a Bible with the word "BANNED" across it and a photo of a man, on his knees, placing a ring on the hand of another man with the word "ALLOWED." The mailing tells West Virginians to "vote Republican to protect our families" and defeat the "liberal agenda." . . .

Does anyone have any more details on what the mailer says inside? Does it specifically refer to the "liberal agenda" being banning the Bibles in public schools, banning anti-gay messages from the Bible, banning Bibles generally, or something else?

Certainly if the claim is that the liberal agenda includes actually banning the Bible as such, that seems quite false. (Unfortunately, hostile environment law may sometimes be interpreted as restricting the publication of Bible verses when this may offend people based on religion, sexual orientation, sex, and the like; but though I quite oppose that, it still seems wrong to say that liberals would ban the Bible more generally.) On the other hand, if the mailer makes clear that it's discussing banning Bibles in schools, or something else that's at least plausible, then it's the AP story that's misleading for not mentioning this.

If anyone has a copy of the mailer, please e-mail me at volokh at law.ucla.edu — I'd love to see it. Thanks!

UPDATE: Several people sent me the links to this copy of the cover of a flyer that was apparently sent in Arkansas -- but it seems to be just the cover, not the inside contents. Does anyone have a copy of the material inside as well, so I can see whether the inside elaborates on the claim on the cover?

Presbyterian boycott of Israel:

GMU lawprof Eugene Kontorovich writes about this:

The divestment action manifests a singular animosity towards Israel. The Presbyterians have not divested their funds from any of the cruel regimes of the world: not from China for its ethnic cleansing of Tibetans, and its repression of Muslems and Falun Gong; and not even from Sudan, currently engaged in the extermination of Africans in Darfur. But then again, Syria has not boycotted those states either.

One would expect the Presbyterian Church to use its economic clout with an eye to punishing the many regimes around the world that oppress their fellow Christians, and call attention to their plight. However, the church has not taken action against such nations as Sudan, Somalia, Nigeria, or North Korea (whose government has reportedly murdered 300,000 Christians), where anti-Christian persecution has been detailed by Christian human-rights groups. . . .

Related Posts (on one page):

  1. A bit more on Presbyterians and Israel:
  2. Presbyterian boycott of Israel:
William Safire apparently errs about possible federal fraud prosecution:

William Safire writes:

"Whoever, having devised any scheme or artifice to defraud transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both." [18 U.S.C. sec. 1343.] . . .

At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources.

Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election. . . .

I don't think that attempts to dupe voters into believe something qualify as attempts "to defraud." The Supreme Court has held, in McNally v. United States (1987),

[T]he words "to defraud" commonly refer "to wronging one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." . . . We believe that Congress' intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes [i.e., frauds involving money and property]. . . . [W]e read [sec.] 1341 as limited in scope to the protection of property rights. . . .

Congress later provided that sec. 1343 also applied to "scheme[s] or artifice[s] to deprive another of the intangible right of honest services," 18 U.S.C. sec. 1346, which allowed prosecutions of corrupt government officials whose conduct deprived the public of its right to the officials' honest services. But Congress did not extend sec. 1343 to cover all deliberate lies, or even deliberate lies that are aimed at duping voters (or lies that give the liar access to campaign officials, which Safire suggests this lie might have done). So some statutes — see the posts noted below — might indeed punish such forgeries. But they aren't as easy to find as one might like, and sec. 1343 isn't one.

Crusaders, Columbus, and more:

My new guest blog post at GlennReynolds.com is now up; here are the first few paragraphs:

Tongue Tied on FoxNews.com reports -- presumably with disapproval, as an example of politically correct excess -- that

A Pennsylvania man is on a quest to rid a local Catholic high school of the "crusader" nickname because he says it represents an evil, violent chapter in the history of the Christian church, reports the Patriot News.

Perhaps to the surprise of some of my readers, I think the Pennsylvania man is (mostly) right.

Nebraska ACLU and lawyers' ethical obligations:

A few readers asked, apropos this post: Does the Nebraska ACLU have an ethical obligation to try to protect its client, even if that means asking for a court-imposed restriction on the press, and perhaps undermining its credibiltiy in future free speech cases?

My understanding -- which my colleague Norm Spaulding confirms -- is that (1) the ACLU can probably ask the client to agree up front that there are some things it won't do to represent him, but (2) if there was no such agreement, the ACLU may in fact be obligated to do all it can to protect the client. (I had meant to foreshadow that in the original post, but forgot to.) Public interest organizations often do agree with a client that the organization will do certain things (for instance, litigate the theory that is likely to set the precedent they like) and not do other things even if they're in the client's best interest (for instance, spend many hours getting the client a remedy that sets no helpful precedent). That's part of the deal: If a public interest firm is to invest its time and effort in a case, it can reasonably insist that it will seek those remedies that really serve its goals, and that it won't do other things that undermine its goals.

So I think the Nebraska ACLU should have made clear to the client up front that it wouldn't try to gag the media as part of its attempt to protect the client. But if it failed to do so, then maybe it is indeed stuck.

Here's the ACLU's press release, by the way:

ACLU denied court order protecting client from danger of attacks in Ten Commandments Case

ACLU Nebraska announced today that it sought and was denied a restraining order prohibiting the Omaha World Herald from identifying a plaintiff whose identity is under a court-ordered protective seal. The ACLU appeared before Judge Richard Kopf on Tuesday afternoon and asked the court for a temporary restraining order protecting the identify of John Doe, the plaintiff in the ACLU's suit over a religious monument in a Plattsmouth city park.

"We are concerned that our client's life will be placed at risk if his name is disclosed," said ACLU Executive Director Tim Butz. "We are at a loss to explain how identifying him by name will foster any public debate. All it will do is fuel hatred and perhaps lead to harm to our client and his family. Now that the World Herald has been told it may publish our client's name, we ask in the name of common decency that they not do so.

"The World Herald has already shown its editorial hostility to our Plattsmouth case and will paint our efforts as a violation of the First Amendment. We see it as something we were required to do in order to zealously represent our client's interest. In a perfect world, we would not have had to do seek this order, but then in a perfect world the newspaper would not have threatened to place our client's life at risk.

"It is unusual for the ACLU to be in court taking a position such as this, and we are the first to admit that this was difficult for us to do. The World Herald placed us in a conflict not of our choosing. We had only two choices, and we did not like either of them. We could do something that appears at first blush to be contrary to the First Amendment or we could do nothing and allow our client to be placed in jeopardy.

"Had there been time, we would have preferred to have a non-ACLU attorney represent him in today's hearing, but the World Herald would not give us any assurances that they would not publish his name before this could happen. As his counsel of record, our attorneys had to act and act quickly. The canon of ethics requires that we act in our client's interest and not in our own.

"We will review today's order with our client and allow him to determine what next steps will be taken."

Swaggart on Swaggart:

From the San Francisco Chronicle,

Evangelist Jimmy Swaggart apologized Wednesday for saying in a televised worship service that he would kill any gay man who looked at him romantically. . . .

In the broadcast, Swaggart was discussing his opposition to gay marriage when he said "I've never seen a man in my life I wanted to marry."

"And I'm going to be blunt and plain: If one ever looks at me like that, I'm going to kill him and tell God he died," Swaggart said to laughter and applause from the congregation.

On Wednesday, Swaggart said he has jokingly used the expression "killing someone and telling God he died" thousands of times, about all sorts of people. He said the expression is figurative and not meant to harm.

"It's a humorous statement that doesn't mean anything. You can't lie to God -- it's ridiculous," Swaggart told The Associated Press. "If it's an insult, I certainly didn't think it was, but if they are offended, then I certainly offer an apology." . . .

I leave it to readers to decide how much of an apology this really is. Thanks to Renato Mariotti for the pointer.

Christian bloggers on Swaggart:

Joe Carter (Evangelical Outpost) has some interesting comments, as does Rob Vischer (Mirror of Justice).

Nebraska ACLU asks for injunction against speech:

The Omaha World-Herald reports:

In a stark turnabout from its free-speech advocacy, the ACLU urged a judge Monday to prevent the Omaha World-Herald from publishing the name of the Plattsmouth, Neb., man who sued the city over a Ten Commandments monument.

Amy Miller, legal director of the American Civil Liberties Union Nebraska, asked the U.S. District Court for an order prohibiting The World-Herald from disclosing the man's identity, arguing that his safety and well-being would be endangered.

The newspaper vowed to fight the ACLU's request, saying it will continue to report on the court case because it is part of a major public policy issue. . . .

When the ACLU filed a lawsuit on the man's behalf three years ago, attorneys argued that the man should be able to proceed under the name John Doe. The ACLU said the pseudonym was necessary because of threats the man received over his protest of the monument in a city park.

Federal magistrate David L. Piester allowed the man to proceed anonymously, but that order applied only to the attorneys and the parties involved in the case. . . .

Now the ACLU wants the court to issue an order of confidentiality on the plaintiff's identity to apply beyond the courtroom. . . .

I highly doubt that the ACLU will win. (Note, incidentally, that this is yet another example of a Crime-Facilitating Speech controversy, since the ACLU is arguing that the publication of the plaintiff's name would facilitate crimes against him, even though the newspapers might not intend that result.) And I think it's also likely to lose some of its credibility in future cases where it tries to defend potentially harmful speech. True, they might reasonably argue that there's a difference between the speech they're trying to restrict here and the speech they try to protect elsewhere. But many in the public might not buy those arguments, and might see the ACLU as being unprincipled, and as simply trying to restrict speech that hurt its favored causes while protecting speech that helps its favored causes. And the ACLU's reputation for principled defense of free speech, and the grudging admiration that this has at times earned the ACLU even from some of its opponents, is one of its most valuable assets.

As I understand it, ACLU chapters have a lot of autonomy, and this decision by the Nebraska ACLU is likely not endorsed — and might even be much disapproved of, for all I know — by headquarters or by other chapters. People therefore ought not ascribe the decision to the ACLU generally; though in practice, I suspect that people will, given that most aren't aware of how the ACLU hierarchy operates. That's the nature of trademarks: One user of the mark can taint it in a way that affects all the other users as well, rightly or wrongly.

I hope to get a copy of the ACLU's motion in this case soon, and perhaps this might shed more light on the subject; if so, I'll blog more about it.

Conditions of Release and Technological Change: In a forthcoming article, I argue that the rapid pace of technological change makes it difficult for courts to craft lasting Fourth Amendment rules when technology is in flux. Soon after a court's rule is announced, the technological facts may change, requiring a new rule or leaving the validity of the old rule uncertain. On Monday, the Second Circuit decided a case that was keenly aware of this problem in the context of supervised release restrictions. In United States v. Balon, the defendant was sentenced to a 5 year prison term for child pornography offenses, to be followed by a period of supervised release. The district court imposed all sorts of restrictions on the defendant's computer use for the supervised release period following the defendant's prison term. (Supervised release is basically post-jail probation.) Balon appealed the conditions, arguing that they were "not reasonably related to the offense of conviction and involve a greater deprivation of liberty than reasonably necessary" under the relevant statutory standard.

  In an opinion by Judge Winter, the Second Circuit did something very interesting; the panel held that the challenges to the computer-related conditions were not yet ripe because the underlying technological facts may change between now and the time when the defendant is released from prison:
We find that the conditions reasonably relate to his offense, but whether they involve a greater deprivation of liberty than reasonably necessary is a question that is governed by the state of computer technology. Because it is currently impossible to predict the state of computer technology at the commencement of Balon's supervised release period, we find most of his challenges premature. We therefore leave the technology-dependent conditions with instructions to the district court to reconsider them at Balon's or the government's request near the time of Balon's supervised release term. As to the challenged conditions not directly dependent upon computer technology, we affirm.
  This is a pretty smart approach, I think. The courts can't craft a long-standing rule based on the facts because the technology is changing the facts so quickly; this approach lets the courts create a rule closer to the time of the rule-application.

Tuesday, September 21, 2004

Something for Everyone: It's hard to imagine a news story that combines sex, crime, elite law schools, civil liberties, and law school loans. But I think we may have a candidate in this story from yesterday's Oakland Tribune. Excerpts:
  Feds seeking $61K from alleged call girl
  No charges filed against Stanford Law graduate who lived in Oakland

  Federal prosecutors argue the government should keep $61,000 in cash seized from an Oakland woman who allegedly worked as a high-priced call girl to repay student loans from her time at Stanford Law School.
  Court documents detail how agents sifted through trash, conducted surveillance, interviewed clients and a colleague, pored over tax returns and surfed the Internet to build a case for keeping money seized from Cristina Schultz, 31 — who they say used the name "Brazil" and charged $1,300 for two hours.
  But all jokes about the declining value of a Stanford law degree aside, Schultz hasn't been charged with a federal crime.
  . . .
  Schultz's Web site remained active this week, registered in her name to her former address in Palo Alto; she moved to an apartment overlooking Oakland's Lake Merritt in September 2002, but a security guard at the building Friday said Schultz no longer lives there.
  The Web site, depicting her in various lingerie-clad poses, describes her as a "Portuguese-speaking entertainer and physical model.
  "The quintessential Gemini, I am an unusual mix of well-educated good-girl and erotic-Bachian-sensualist, with some down-to-earth sweetness thrown in," it says. "I am sure you will never forget any time you spend with me and I look forward to meeting you soon.".
  . . . .
  The government's forfeiture complaint filed in July says Schultz operated an interstate prostitution business since at least August 2001 — three months after earning her degree at Stanford Law School — by charging up to $1,300 for two hours, $5,000 for overnight and $15,000 for three days to serve clients in the Bay Area, Los Angeles, Washington, D.C., New York City, Chicago and Seattle..
  The complaint says investigators in September 2002 searched trash put out from Schultz's Palo Alto apartment, recovering items such as a law book containing $2,400 in $100 bills; bills and invoices from Washington, D.C., hotels; business cards in the name of "Brazil;" condoms; invoices for large cash purchases; tax records; an admission card for the July 2001 California Bar Exam; and a promotional postcard from a Southern California woman.
House Approves Penalties for False Web Records: Reuters reports:
 The U.S. House of Representatives on Tuesday approved a bill that would increase jail time for identity thieves and other fraudulent Web users who register sites under false identities.
 The bill, which passed by voice vote, would not directly outlaw the use of fraudulent registration information.
 Rather, it would increase by up to seven years the prison terms of those convicted of felonies.
 It must be approved by the Senate before it becomes law.
 Online investigators frequently find that suspects have filled out Web-site registration records with clearly fraudulent information — providing "555-555-5555" as a phone number or "Small Wok Way, Chopstick Town, WI" as a street address.
 As many as 10 percent of the Internet's 30 million domain names may be registered under false identities, according to a study released last year.
 "The government must play a greater role in detecting those who conceal their identities online," said Texas Republican Rep. Lamar Smith, a sponsor of the bill.
This is a potentially interesting development, although I haven't looked at the legislation myself to see whether the Reuters description is accurate. I'll have to check to see if this has a prayer on the Senate side, too.
Christianity Today weblog on Swaggart:

To its credit, Christianity Today magazine's weblog reports (thanks to Patrick Oden for the pointer):

Speaking of televangelists ...

Crouch [a figure from the preceding story] isn't the only TV preacher who needs help with his theology this week. In his September 12 broadcast, Jimmy Swaggart (remember him?) demonstrated exactly how not to oppose gay marriage. "I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men," he said. "I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died."

One might think that someone who has publicly experienced brokenness in his sexuality might be a bit more careful in his words. In this line of thinking, wouldn't the prostitute that Swaggart hired have been justified in killing him?

Homophobia might be a word thrown about too carelessly by the left, but remarks like Swaggart's are why the word exists in the first place. Let's be "blunt and plain": Biblically speaking, for a Christian minister to make such a comment is at least as sinful as it is for people to engage in homosexual activity.

The Canadian Radio Television Commission is investigating whether the broadcast, which aired on a Toronto station as well as several Christian stations in the U.S., constituted a criminal offense. The station that aired it apologized and called it "a serious breach" of Canadian broadcast regulations.

Jimmy Swaggart Ministries has removed the broadcast from its online archives.

One more related point: Leviticus 20:13 unfortunately does say "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them." I am very glad that most, likely nearly all, American Christians — and even those who tend to endorse a literal approach to the Bible — do not to my knowledge take this as a literal suggestion to kill homosexuals. I'm sure there are good Biblical arguments for why this passage ought not be taken that way, and I certainly hope that people follow these arguments.

But it seems to me that Christian leaders, especially in those denominations that do often speak about the importance of literal adherence to the Bible — and particularly stress the literal force of the Bible when citing Leviticus 18:22 ("Thou shalt not lie with mankind, as with womankind: it is abomination") as their chief support for less militant opposition to homosexuality — be watchful for other Christian leaders who may have been unduly swayed by the isolated Leviticus 20:13 text, or who may in any event be reinforcing the tendency of some parishioners to focus on the isolated text.

Again, I stress that American Christians, including ones who are relatively literal in their Biblical interpretation, generally do not support killing homosexuals. Yet it seems to me that thoughtful Christians should be aware of the potential of Leviticus 20:13 to do harm (especially, as I said, when citing Leviticus 18:22), and should use those opportunities that arise to warn fellow Christians about it. The Swaggart outburst seems to me one such opportunity.

Anthrax Threat Case: Does sending cornstarch designed to look like anthrax through the mail with the intent to scare the recipient violate the federal threat statute? In a 2-1 decision, the Third Circuit has ruled that the answer is yes. Here's the relevant statute, 18 U.S.C. 876(c):
Whoever knowingly so deposits [in the U.S. mail] any communication . . . addressed to any other person and containing . . . any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.
In an opinion by Judge Fuentes, the panel ruled that the cornstarch was a communication (because it was designed to communicate a message), and that it contained a threat (both because it would naturally induce fear and because it suggested that additional mailings may be on the way). Judge Stapleton dissented, agreeing that there was a communication but finding no threat:
  I cannot conclude that the message"I have just poisoned you" can constitute a "threat" within the meaning of § 876. Such a message bears no indication that any conduct will be forthcoming by the sender.
  In this case, I have no doubt that a reasonable recipient of Zavrel's envelopes would believe that his health, and even his life, was in danger. That belief, however, could only have arisen from an event that had already occurred, i.e., exposure to the white powdery substance, and not from any future conduct that was yet to be undertaken
My initial sense is that Judge Stapleton has the much stronger argument. Either way, it's an interesting case. Thanks to Howard for the link.
Murder at Harvard?:

An interesting story from today's Washington Post.

More (Deserved) Media-Bashing: It's well-known in the blogosphere that Reuters refuses to call terrorists "terrorists," preferring various euphemisms and evasions.Via Honest Reporting, we get a revealing perspective on Reuters' integrity.

The New York Times reports that Reuters is upset that the CanWest newspaper chain changed a Reuters story to describe the Al Asqa Martyrs' brigade, a Palestinian terrorist group, as "a terrorist group":
"Our editorial policy is that we don't use emotive words when labeling someone," said David A. Schlesinger, Reuters' global managing editor. "Any paper can change copy and do whatever they want. But if a paper wants to change our copy that way, we would be more comfortable if they remove the byline."
Mr. Schlesinger said he was concerned that changes like those made at CanWest could lead to "confusion" about what Reuters is reporting and possibly endanger its reporters in volatile areas or situations.
"My goal is to protect our reporters and protect our editorial integrity," he said.
So there you have it. Remember how CNN admitted that its reports from Iraq were constrained by fear for its reporters safety, as well as concern for access to the country? Now Reuters is admitting that its phraseology on arguably the most important issue of our times is dictated by fear of offending terrorists and their sympathizers. And if something as simple as use of the word "terrorist" is dictated by such fears, do we have any reason to trust that Reuters' coverage of the War on Terror, the Oslo War, and other terrorism-related stories is not being compromised by similar fears?
CBS and the media more broadly:

Mickey Kaus quotes a reader who makes an excellent point — last week, "Sandy Genelius, a network spokeswoman, said, 'We are confident about the chain of custody; we're confident in how we secured the documents'" (I'm quoting the Sept. 14 New York Times). But "[h]ow could they be confident of the chain of custody if, as appears, they never even spoke" to the National Guardsman from whom Burkett claims he got the documents (he now says he got them from some other source that he won't disclose)?

They might have had good reason to go with documents that they thought were properly authenticated (that's a strange thing to think here, but I still assume they did originally think it), even if the chain of custody — the evidence of how they got from the files to CBS — was bad. (I say "might.") But it seems just wrong, and knowingly wrong, to say that they "are confident about the chain of custody" in a situation like this.

On the other hand, who knows? Maybe the New York Times misquoted Genelius. What can one say after the failings of the media (perhaps the inevitable failings of any human institution) have been proven to one so often, at so many levels?

That's what's so sad: Surely the aggregate of Rathergate, the Jayson Blair scandal, the chronic misreporting about assault weapons, or any other individual incident, and everything else we've seen over the last several years — often thanks to the media criticism of blogging (a medium that thrives on media criticism) — has opened our eyes to just how little one can trust what one sees in the news media.

And yet no matter how skeptical one tries to be, one can't double-check everything. We have to trust outside sources. But the same sources that claim to be so trustworthy are, it turns out, often untrustworthy, sometimes in huge ways (falling for outright frauds) but also often in many small ways (media bias, whether political, social, or personal, that repeatedly leads to erroneous and misleading information).

I suspect this has been true all along — it's just that we can't ignore it any more. We have to learn to live with a world of extraordinarily imperfect information. And that's a lot more work than assuming that the media (or at least certain media) is highly accurate.

More on Swaggart:

I continue to feel strongly about the need for ideological movements (whether Christians, liberals, conservatives, and so on) to police their own, and publicly condemn them when they merit condemnation. Nonetheless, I've gotten two kinds of responses that, if factually well-founded, would undermine this as to Swaggart.

First, a couple of people suggested that "kill them and tell God they died" is a colloquial phrase in Texas and Louisiana that is a facetious way of saying "I'm really annoyed by this person" — often someone close to you — but with no real connotation of killing, or even of murderous anger (see, e.g., this book title). I'd never heard of this usage before some readers told me about it; and the context, "And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died," with accompanying talk of "abomination" and "utter absolute, asinine, idiotic stupidity," surely didn't seem like good-natured joking about being really annoyed about something. Swaggart's manner also didn't seem humorous, and I suspect that at least people in his Canadian audience (the program was broadcast in Canada as well as in Louisiana) didn't see it as a joke. But I do want to flag the possibility that this was pretty misplaced and callous humor rather than serious anger.

Second, some readers suggested that Swaggart is so marginal that he doesn't merit attention, even negative attention. As reader David Allen colorfully put it,

While I agree with you in general (policing your own, etc), at what point of silly "off the deep end" nutcase do we get to ignore people? I mean, I can ignore the guy on the corner who gets arrested regularly for flashing traffic, saying God told him to, right?

In my book (and a lot of others, I think), Swaggart is a pathetic and previously exposed con-man. How long do we need to pay attention to him?

I was struck by Swaggart's statement because Swaggart was very big in the 1980s; he has been described as "the most popular television preacher of his day", and even accounting for some hyperbole, he was surely near the very top. The prostitute scandals, which led to his being disgraced and apparently disciplined by his own denomination, surely brought him down. But my assumption is that, given his continuing ministry and continuing TV presence, coupled with his past fame, he still has some influence — while many Christians rightly ignore him, he has enough sway with some that he does deserve denunciation. My sense is that anyone who is on television (and not just the 3 am local public access cable) has some potential to do harm.

Still, if my impression based on his past fame is mistaken, and Swaggart today really is a laughingstock with next to no influence, even in the evangelical community (the natural place for him to have some lingering appeal), then I agree that this makes condemning him much less important. Still worth doing, I think, but considerably less imperative.

UPDATE: A couple of readers, in making the second point I was responding to above, suggested that Swaggart was to modern American Christians was like Michael Moore to liberals and Democrats or Pat Buchanan to conservatives and Republicans. If that's right, then it supports my point that Christians should disavow appalling things said by Swaggart. Moore and Buchanan may not be middle-of-the-road Democrats or Republicans, but they do have substantial followings, I believe, within those movements. (Moore more so than Buchanan, I suspect, since Buchanan is generally seen as yesterday's news, but even Buchanan does still seem to enjoy, to the best of my knowledge, some respect from one corner of conservatism.) If Moore says outrageous things speaking as a liberal or a Democrat, or if Buchanan says outrageous things speaking as a conservative or a Republican, then mainstream leaders of those movements should indeed denounce them -- both to help stop such outrageous sentiments from spreading, and to protect the good name of the ideological movement generally.

On the other hand, if Swaggart is a much more marginal figure, like Lyndon LaRouche -- an analogy another reader drew -- then denouncing him becomes less important.

Cell Phones:

Love'em or hate'em, cell phones have changed our daily experiences over the last decade. Christine Rosen has authored a thoughtful essay, Our Cell Phones, Ourselves, that considers some of those changes:

But if this ubiquitous technology is now a normal part of life, our adjustment to it has not been without consequences. Especially in the United States, where cell phone use still remains low compared to other countries, we are rapidly approaching a tipping point with this technology. How has it changed our behavior, and how might it continue to do so? What new rules ought we to impose on its use? Most importantly, how has the wireless telephone encouraged us to connect individually but disconnect socially, ceding, in the process, much that was civil and civilized about the use of public space?