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Tuesday, December 28, 2004

Not Helping Anyone:
MAN ADMITS HATE CRIME ATTACK WAS FALSE
  INDEPENDENCE, Mo. — Police said a 22-year-old man was charged with filing a false report about a hate crime.
  Floyd Elliott, of Independence, told police that on Dec. 14, two subjects attacked him in the parking lot of his apartment complex. He said the attackers cut him in the stomach, branded him with a hot knife, and attempted to carve the word "Fag" on his forehead.
  Investigators were suspicious about the report because the head carving was backwards, as if done while looking into a mirror.
  Later, Elliott admitted to police that the injuries were self-inflicted. He said he falsely reported the attack to increase the police presence in his neighborhood.
Hat tip: Powerline.
Juan Cole on Bin Laden's Latest Broadcast: An excerpt:
  It appears that Bin Laden is so weak now that he is forced to play to his own base, of Saudi and Salafi jihadists, some of whom are volunteer guerrillas in Iraq. They are the only ones in Iraq who would be happy to see this particular videotape.

  . . . The narrow, sectarian and politically unskilfull character of this speech is the most hopeful sign I have seen in some time that al-Qaeda is a doomed political force, a mere Baader-Meinhof Gang or Red Army Faction with greater geographical reach.
Let's hope.
Earthquake Death Tolls and the Blogosphere: Estimates of the number of dead from the enormous earthquake in Asia have reached 44,000 this afternoon, and continue to climb. The scope of the tragedy is simply unbelievable. You can donate money to help relief efforts here.

  Meanwhile, the New York Times finds a connection to the blogosphere (part of a trend I noted here) with this piece on blogs that offer first-hand coverage of the tragedy.

  UPDATE: You can find a more complete list of charities that are helping with disaster relief in Asia here. Please consider making a donation.
More on the Iraq-Vietnam Casualty Comparison: Phil Carter and Owen West offer their take on Iraq/Vietnam casualty comparisons in Slate. Their conclusion:
After factoring in medical, doctrinal, and technological improvements, infantry duty in Iraq circa 2004 comes out just as intense as infantry duty in Vietnam circa 1966—and in some cases more lethal. Even discrete engagements, such as the battle of Hue City in 1968 and the battles for Fallujah in 2004, tell a similar tale: Today's grunts are patrolling a battlefield every bit as deadly as the crucible their fathers faced in Southeast Asia.
Of course, this isn't exactly the issue that I looked into yesterday, but is somewhat related (and pretty interesting on its own, too).

Proximity Searches:

AltaVista, I recall, let you search for a word or phrase near another word or phrase -- but now that feature is gone. Can anyone recommend some search engines that have this useful feature, and that don't have huge countervailing handicaps?

If you have a specific (and verified) suggestion, please respond in the comments to this post. Thanks!

2 Comments

Monday, December 27, 2004

Karl Popper & Intelligent Design.--

Rand Simberg has a good post on Intelligent Design (ID) (tip to Instapundit):

How science works is by putting forth theories that are disprovable, not ones that are provable. When all other theories have been disproven, those still standing are the ones adopted by most scientists. ID is not a scientific theory, because it fails the test of being disprovable (or to be more precise, non-falsifiable), right out of the box. If Hugh [Hewitt] doesn't believe this, then let him postulate an experiment that one could perform, even in thought, that would show it to be false. ID simply says, "I'm not smart enough to figure out how this structure could evolve, therefore there must have been a designer." That's not science--it's simply an invocation of a deus ex machina, whether its proponents are willing to admit it or not. And it doesn't belong in a science classroom, except as an example of what's not science.

I've made my position on this subject quite clear in the past. ID, and creationism in general should be able to be taught in the public schools. Just not in a science class--they need to be reserved for a class in comparative religions.

I agree both with Simberg's view of Intelligent Design and (generally) with his view of science, though Simberg is talking about the older, traditional view of how science works (the Karl Popper view). More common these days is the Kuhnian view of science (anomalies, rather than strict falsifiability)--and there are still other views of science that are more akin to postmodernism. Much theorizing in the social sciences these days follows more or less Milton Friedman's simpler test of a theory--how well it fits the data. One occasionally sees other views, such as the plausibility or truth of the premises of a theory.

One thing that strikes me about Intelligent Design is that it must have been much more intuitively appealing before the failure of socialism. Socialism in the 1920s--1940s was in part based on the idea that the world had become so complex that central planning was necessary to deal with this complexity. Yet Von Mises was arguing just the opposite, that as the world became more elaborate, no one could plan it. ID seems to be based on an assumption that most conservatives reject in the economic sphere--that as the economy gets more elaborate, to work well it must be the product of the intelligent design of a master planner.

UPDATE: At Blurred Brain is an interesting post pointing out something that pro-capitalists have been saying for at least a century, that capitalism is all about planning--planning by millions of planners in an economy.

More at Rite Wing TechnoPagan, Catallarchy, and a Physicist's Perspective, who points out that not all science fits the Popper criteria, which is why I mentioned other theories of science and stated that I "generally" (not completely) agreed with Simberg. Imago Dei argues that "We can have knowledge of things without falsification." Ambivablog asserts:

But, Jim! The whole point is that "divine" intelligence, or whatever you want to call it, is everywhere at once and can be trusted. (Like Adam Smith's Invisible Hand?) Only humans would be stupid enough to come up with the idea of central planning!

U.S. Commission on Civil Rights, Justice Ginsburg,

AND THE AGE OF CONSENT: [UPDATE: Since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error, and the report's critics, including me, themselves erred in not seeing the error. More here.]

Several days ago, I ran across an allegation — one which has been repeated in quite a few places — that a 1977 U.S. Commission on Civil Rights report, co-drafted by then-Professor Ruth Bader Ginsburg, suggested that the age of consent be lowered to 12. That struck me as a likely myth or an out-of-context quote, so I decided to look into it.

To my surprise, the allegation seems largely accurate, though in the limited context of the federal territorial and maritime jurisdiction. (The report was referring only to federal law, and most sex crimes are covered by state law rather than federal law.) The report was Sex Bias in the U.S. Code, and it was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statue, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. "Rape" is defined [as limited to female victims]. . . . The "statutory rape" offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it's a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it's not clear why the age differential vs. clear cutoff issue is relevant to the "Sex Bias in the U.S. Code" issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn't make 12-year-olds fair game for adults.

But here's the suggestion on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn't be a "Romeo-and-Juliet" law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I'm still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I'm not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

In any event, when I investigate improbable-sounding accusations and find them to be bunk, I like to post about that; so it seems to me that when they prove to be true, it's worth noting them. Again, I'm not sure what this says about Justice Ginsburg's past views, or for that matter her present views; but I'd love to hear any perspective that readers who are familiar with the late 1970s debate might be able to provide (preferably with details and citations).

The Vietnam Comparison -- A Closer Look At The Numbers: I am not exactly comforted by Jim's comparison of the number of U.S. deaths in Iraq and the number of U.S. deaths at the height of the Vietnam War. While the casualty rate in Vietnam is considerably higher than the rate in Iraq, Jim's comparison led me to realize that the differences are smaller than I would have thought.

  In 2004, the U.S. lost about 75 troops per month in Iraq out of a total force of about 130,000. When comparing this to Vietnam, you need to specify the year of the comparison; the scope of U.S. involvement grew gradually over a period of years. In 1966, the U.S. lost about 500 soldiers per month out of a total force that averaged about 300,000 troops; in 1967, the rate increased to about 1,000 troops per month out of a total force of about 400,000. By 1968-69, the war's peak, the U.S. averaged about 1,500 lives lost per month out of a total force of about 500,000. [All numbers rounded off. Iraq casualty stats are here; Vietnam stats here. Number of troops in Iraq are here, number in Vietnam are here.]

  Jim is quite right that the total number of U.S. deaths in Iraq so far is about the same as the total for a bad month near the peak of the U.S. involvement in Vietnam. But I think a more complete picture would be that the scale of U.S. involvement in Iraq is about 25-40% of the scale of U.S. involvement in Vietnam in the '66-'69 period, and that the chance that a U.S. soldier in Iraq will get killed is about 25% of the chance that a U.S. solider in Vietnam in '66-'69 would get killed.

  Obviously these comparisons are extremely crude. I grabbed my numbers from a few websites I found via Google, and eyeballed some of the numbers from charts. More importantly, the comparison sheds no light on how the two wars compare more broadly, or whether the decision to invade Iraq was right or wrong. But if we look only at the number of troops and casualty rate, the numbers are less far off than I would have thought.

  I have enabled comments. Remember the new comment rule, however: civil and respectful comments only. If you can't say it nicely, don't say it here.

  UPDATE: My apologies for the technical difficulties; we've been having server troubles today and the comments haven't been working. If you can't view or make a comment, try clicking here.

41 Comments
California Sex Offender Website: Criminal Appeal and Sentencing Law & Policy have posts up on California's new Megan's Law sex offender locator website. The website explains:
  As a result of a new law, this site will provide you with access to information on more than 63,000 persons required to register in California as sex offenders. Specific home addresses are displayed on more than 33,500 offenders in the California communities; as to these persons, the site displays the last registered address reported by the offender. An additional 30,500 offenders are included on the site with listing by ZIP Code, city, and county. Information on approximately 22,000 other offenders is not included on this site, but is known to law enforcement personnel.
  Once you have read and acknowledged the disclaimer on the next page, you may search the database by a sex offender's specific name, obtain ZIP Code and city/county listings, obtain detailed personal profile information on each registrant, and use our map application to search your neighborhood or anywhere throughout the State to determine the specific location of any of those registrants on whom the law allows us to display a home address.
Both Jonathan and Doug are puzzled by a particular misdemeanor provision in the California Code enacted as part of the law:
Any person who is required to register pursuant to Section 290 who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
  Doug asks whether the law "breaks new ground simply by making it a crime for certain people to access a publically-available website." Unfortunately, probably not. The federal government and all 50 states have laws that prohibit "unauthorized access" and "exceeding authorized access" to computers. One of the big questions raised by these laws is whether they are triggered only when a user bypasses some kind of password gate, or whether they are triggered when a user uses the computer in breach of some condition of entry set up by the computer owner/operator. The former approach requires some kind of "breaking in" to the computer to trigger liability, but the latter does not.

  In a recent law review article, I argue that the former is the right interpretation, and that the latter approach may render the statutes constitutionally overbroad or void for vagueness (see p. 1658-60). At the same time, a number of courts have taken the latter approach in civil cases, even if none have yet had the opportunity to apply it to criminal cases. Because courts generally apply the same precedents in the civil and criminal contexts, however, there is at least some precedent for the view that any computer owner can make it a crime for anyone to access their publically-available website simply by setting conditions of entry accordingly. It's a bad rule, for reasons explained at length in the article, but unfortunately not entirely without precedent.
Libertarianism Illustrated: While it offers little if any substantive argument on behalf of libertarianism, this web page by Ken Schoolland and Lux Lucre provides an interesting graphical presentation of the libertarian position. For more information about the project of which this is a part click here. (Hat tip Brainwacker)
John Lott and the National Research Council's Report.--

I was away when the story broke about the National Research Council releasing its report on the effects of gun laws on violence, though I saw Stuart Benjamin's nice post on it when I returned. The focus of Stuart's comments were the report's criticisms of John Lott's work, though he also mentioned my role in investigating whether a 1997 study that Lott says he did was ever actually done. As those of you who have been following this might remember, I thought that Ayres and Donohue did an excellent job of data analysis on the issue of the effect of carry laws on crime rates.

I read through much of the report, including particularly chapter 6 that is critical of Lott's work, the dissent to part of that chapter by James Q. Wilson, and the majority response to that dissent.

From the portions that I have read, I found the report sober, impressive, and fair, though there are substantial parts of this literature that I am unfamiliar with. As to Lott's work, I actually thought that the Council's report was too generous to his research in spots. In particular, I thought that it failed to point out just how much Lott's results are driven by poorly executed demographic controls, a point that Ayres and Donohue make effectively in their Stanford exchange. While the Council's report raises a lot of questions about Lott's use of control variables in general, particularly in its Appendix D, the Report does not seem to focus on the degree to these questionable demographic controls determine some of Lott's results.

As usual, Tim Lambert has the most thorough coverage on the report.

Related Posts (on one page):

  1. John Lott Responds
  2. John Lott and the National Research Council's Report.--
  3. Bad News for John Lott:
A Different Take on the Criticisms of AP.--

Frankly, I have been somewhat ambivalent in reading the criticism of the Associated Press (AP) for running photos of the killing of innocent Iraqi civilians by terrorists in Iraq. Much of the discussion has focused on how much of a tip the AP photographer had; if he knew of an assassination attempt before it occurred and went to photograph it rather than stop it, that would be wrong. Other criticism, of the sort that I wanted to comment on, goes to the more general question whether the AP or other MSM should be showing pictures of terrorist acts that the terrorists want shown.

Earlier in the war, the press was criticized for showing American atrocities (e.g., prison torture) and possible atrocities (e.g., the shooting of a wounded militant/terrorist in a mosque), but mostly refusing to show beheadings and other atrocities committed by terrorists. This even goes back to the aftermath of 9/11 when the media fairly quickly stopped showing pictures of people diving from the twin towers, probably to avoid stirring up the public excessively (but perhaps out of concern for families of victims).

In most prior wars, the home country press showed pictures of atrocities committed by the enemy, but downplayed or covered up atrocities committed by the home country. This war is unusual in several respects. First, at some times (though certainly not always), the US press has been more likely to show the home country's atrocities than the enemy's. This is somewhat explained by the US press having better access to US actions, both good and bad, but it is still historically very strange.

The other oddity is that the actions that the terrorists want shown are themselves atrocities. Usually, one side in a war would be proud to show its military victories, but ashamed to show its vicious killings of innocent, unarmed civilians. In Iraq, the terrorists want first to frighten, intimidate, and (yes) terrorize decent people who want democracy. Second, they want to recruit and embolden a small cadre of bloodthirsty people who would be attracted toward the cause of people who commit atrocities.

For these two reasons, we have the odd spectacle of terrorists who want their atrocities broadcast around the world, instead of being ashamed by them. The Belmont Club, which quite insightfully first raised questions about the AP, pointed out how the terrorists might be helped:

Although the Eddie Adams photograph [of the execution of Vietcong Captain Bay Lop by South Vietnamese General Nguyen Ngoc Loan] was widely used to illustrate the 'brutality' of the Saigon government, the photos taken by the Associated Press are unlikely to reflect badly on the electoral worker's killers. Press reports highlight the confidence and boldness of the insurgents. "Both of the victims shown in the sequence wore traditional Arab headscarfs. In contrast, the attackers were bareheaded and apparently unafraid to show their faces", suggesting that 'collaborators' must conceal their faces while the Ba'athists stride with impunity through the light of day.

So I can see some reasons for running pictures or video of atrocities committed by Iraqi terrorists and some reasons for not running them. In particular, if the press knew that the atrocity would not have occurred without the press as an audience, that would definitely suggest not covering it. But something like this problem arises in more ordinary situations. Park Dietz once estimated that for every product tampering extensively covered in the press (e.g., the Tylenol scare), there are a couple dozen copycat events, some of them fatal. Something similar has been argued for the press's covering mass school killings, but I know of no evidence for this.

The only tentative conclusion that I would draw is that it might be somewhat unfair to criticize the MSM both for showing atrocities that terrorists want covered (such as perhaps the AP story) and for not showing the beheading of hostages, which are also atrocities that terrorists want covered. Is the press (even if the US press had no goal other than to help the US war effort) supposed to show terrorist atrocities or not? Which policy actually helps the terrorists or the US war effort? Until the AP story, I got the impression in the blogosphere that most critics of the press thought that the press should be showing terrorist atrocities, even when the terrorists wanted them shown. Now after the AP story, I'm not so sure.

I should add that I am not accusing any particular blogger for being inconsistent (which is why I haven't linked most of the AP criticisms), both because I have no idea whether any have been inconsistent and because there are some good reasons to distinguish the two sorts of cases. Indeed, most of the AP criticisms, and in particular the brilliant and amazingly perceptive post from the Belmont Club that started all this, have focused on what the AP might have done besides just publicize an event that the terrorists wanted covered.

How Far from the Truth?

A New York Times article on how some Democrats are suggesting that the party de-emphasize abortion in its political message contains this quote:

And Senator Dianne Feinstein, Democrat of California, said Republicans had "been successful at painting the view of the pro-choice movement as abortion on demand — and nothing can be farther from the truth."

Really? To the best of my knowledge, the leading players in the pro-choice movement do indeed favor abortion on demand, or something very close to it. According to the Random House Unabridged Dictionary, "abortion-on-demand" means "the right of a woman to have an abortion during the first six months of a pregnancy." As best I can tell, the views of leading pro-choice organizations, such as NARAL Pro-Choice America, are quite close to that.

The groups may say "before viability" rather than "during the first six months," and I suppose this might, depending on the state of a particular fetus and the progress of medical technology, be something of a difference — but not a very great one, given how close viability and six months tend to be (plus I take it the "six months" dividing line was chosen partly because it tracked viability during the time when the definition was being developed, so it was at least intended to reflect the viable/nonviable distinction). I suspect, incidentally, that most pro-choice advocates would insist that even post-viability abortions be legal when needed to protect the woman's life, physical health, or psychological health, with the latter category seeming like a pretty broad escape hatch. Also, while I'm not positive whether most leading pro-choice groups would allow any restrictions at all on minors' access to abortion, I'm pretty sure they oppose parental consent or even parental notificaiton requirements. So their position seems to be either abortion-on-demand or very close to it.

Now one may well argue that abortion on demand, or abortion on demand with these two narrow exceptions, is the morally, constitutionally, or pragmatically correct position. But it seems to me a mistake to deny that the pro-choice movement's view, or at least the view of many leading groups in the movement, is pretty close to that position — and even more of a mistake to fault people for being supposedly untruthful when they characterize the pro-choice movement's position that way.

Richard Posner is Guest-Blogging over at the Leiter Reports this week, and has asked for suggestions about blogging topics. UDPATE: Judge Posner will be covering jurisprudential and philosophical issues during his guest-blogging stint, so I assume that topic recommendations should be limited accordingly.
Kristol Predicts McConnell for Chief: FWIW on Fox News Sunday yesterday, Bill Kristol of the Weekly Standard made his annual prediction: Michael McConnell to be nominated to succeed William Rehnquist as Chief Justice of the United States. He further predicted no filibuster. Given Kristol's sources, this sounds more like a trial balloon than misdirection.
Lessons of 'Anonymous Lawyer': Over at Stay of Execution, Scheherazade has a good post on the lessons to be drawn from Jeremy Blachman's ability to draw a great deal of attention with his fictional blog about life as a law firm partner:
[T]he three big lessons for me are: 1) the blog as a medium has an inherent credibility. 2) Humans in general, and lawyers in particular, are amazingly susceptible to status and heirarchy — Anonymous Lawyer's appeal was the perception of access to honesty from the upper stratus of the standard professional heirarchy, and the delicious way the author could make explicit all the power struggles and displays of status and power within a law firm. . . . 3) The profession really is draining talent, energy, and enthusiasm from a huge hunk of lawyers, which is a travesty. Anonymous Lawyer was fiction, but too many people recognized themselves in the mirror Jeremy held up.
Points (1) and (2) are also true for the academic twin of Anonymous Lawyer, the recently-launched Anonymous Law Professor. Fortunately — at least for us law professors — (3) doesn't seem to apply to the latter blog. While Jeremy's fictitious partner seemed real to many, the same character dressed up as a law professor was spotted early on as the creation of a law student (see here, here, and here).

Sunday, December 26, 2004

1300 US Deaths Would be a Fairly Bad Month in Vietnam.--

Ann Althouse reports on a man who walked around the Madison Capitol for six hours on Christmas Eve with a sign saying 1300, the approximate number of US deaths so far in the Iraqi War, which is not yet 2 years old. It is important to remember the lives lost, the families ruined, and the families saved. It is also important to place these losses in the context of other wars.

Just to put things in perspective, this would be a fairly bad month in Vietnam, but not unusual.

Consider this stretch of US deaths in Vietnam in 1968:

Jan-1320

Feb-2293

Mar-1721

Apr-1543

May-2316

Jun-1310

Or this stretch in 1969:

Jan-955

Feb-1263

Mar-1493

Apr-1021

May-1411

Jun-1254

UPDATE: I am finding the response to my informational post on casualties interesting. My co-blogger Orin Kerr appears to take it in a political direction, as noted by Matt Bruce here.

I think that the Vietnam v. Iraq casualty number comparison is a bit like a Rorschach test ("The [Rorschah] test is considered `projective' because the patient is supposed to project his or her real personality into the inkblot via the interpretation.')--what people see in the comparison reflects more about them than it does about the facts or my post.

I was posting information because I think that one fact can be understood better in the context of another fact. I was not trying to "comfort" anyone. I am certainly not shy about expressing an opinion in my posts, whether it is a relatively definitive one (such as my recent criticism of John Lott), or a conflicted one (such as my recent highly contingent defense of AP). I was not making an argument in my post; I thought that people might be surprised and interested by the comparison (as many of my colleagues are, whether they support or oppose the Iraq War). If I were trying to defend the Iraq War in my post, I would have chosen World War II or the Civil War, not Vietnam. I was not.

Indeed, my view is that looking at numbers doesn't answer the basic question whether a war is worth the cost, and that the cost in lives for a war is not necessarily positively related to its benefits. I certainly didn't suggest this argument or any other in my post, but some people might have suspected this from the choice of Iraq and Vietnam for comparison.

Any substantial number of US lives lost in Vietnam was (I believe) unwarranted because the war was a failure and its goals questionable. If the Iraq War ultimately fails completely in the long run, then any US lives lost fighting it will have been wasted at least from an ex post perspective. And the huge US losses in World War II were justified by the justice of that war's goals and accomplishments.

MSM Finds Blogs: Many bloggers embrace the view that the mainstream media tends to ignore the blogosphere. "We're a threat to them," the argument runs, "so those old media elites are trying to pretend we're not here." Maybe that was true a year ago. If I'm not mistaken, however, in the last few months there has been a consderable shift: now the MSM seems far more focused on blogs than before, perhaps more than their influence actually warrants. The latest installments: the New York Times writing about blogger Jeremy Blachman, and The Weekly Standard writing about the blog Left2Right.

Saturday, December 25, 2004

Merry Christmas!
Archimedes Famously Said, "Give me a place to stand, and I can move the earth." It seems that the same principle of physics also applies to tipping over trucks, as this series of photographs dramatically illustrates. (Hat tip: The Right Coast)

  UPDATE: Several readers point out that the last of the pictures is a fake. The invaluable Snopes.com has the real story. Fortunately, I think the principle of physics remains valid.
Copies of Your Credit Report: The Electronic Privacy Information Center has published a list of consumer privacy tips. Among those on the list: request a free copy of your credit report.
All Americans are now entitled to a free credit report from each of the three nationwide credit reporting agencies, Experian, Equifax, and Trans Union. You can engage in a free form of credit monitoring by requesting one of your three reports every four months. By staggering your request, you can check for errors regularly and identify potential problems in your credit report before you lose out on a loan or home purchase. Currently, these reports are available to residents of most western states. By September 2005, all Americans will have free access to their credit report.
You can get more information, as well as a link to the page to request a report, from this site.

Friday, December 24, 2004

Blogging About Professors: Should students feel free to blog about what their professors say in class? How about out of class? Jeff Rosen's recent New York Times article raised the question, and it has led to some interesting discussion in the blogosphere. See Will Baude's take on the issue here, and Michael Froomkin's here.

  I have mixed views on this topic, but want to emphasize an important point touched on by Will and Michael: If you are a student and you blog about a professor, you should always assume that the professor will read the post and will know who you are. Even if you blog under a pseudonym and don't refer to the professor by name, you're probably leaving enough information behind to identify the professor and yourself. Even if you keep your own identity secret, there aren't that many professors out there: particularly critical or juicy posts are likely to lead to someone recognizing the professor and tipping off him or her to the blog. The professor may then take some effort to figure out who you are. You may never know about it, either: I know professors who regularly read their students' discussions of class on their blogs, and don't want the students to know it.

  Of course, this doesn't mean that students should never blog about professors. But realize that openness cuts both ways: if you blog about them, the chances are pretty good they are going to read it.

Thursday, December 23, 2004

Cynicism and the Facts:

A reader writes, apropos my recent post on parody and fair use,

Dear Mr. Copyright Expert,

So Ghettopoly loses while "The Wind Done Gone" prevails.

Is there a principle at work here other than measuring your revulsion and working backwards to get the desired result?

I can see why people are sometimes cynical about judges' decisionmaking, but it's good to check the facts to see whether they bear out the cynicism. And in fact, the leading modern parody cases don't seem to support the cynical view. In Campbell v. Acuff-Rose (1994), the leading Supreme Court case on the subject, the Justices basically accepted a fair use defense by the rap group 2 Live Crew -- not a very appealling defendant, that created a pretty vulgar parody of Roy Orbison's "Pretty Woman." (Look here for the lyrics, especially Verse 4 and the bridge preceding it.) On the other hand, in the most prominent recent case rejecting the fair use defense, Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997), involved a comparatively inoffensive Seuss-styled account of the O.J. trial, called "The Cat NOT in the Hat!" Hard to see much "revulsion" at the copyrighted work in the court's opinion there.

What is the principle, then? Here's the key argument from Campbell, which the Dr. Seuss court cited (and the bottom line of which I briefly summarized in my initial post, though without the supporting argument):

For the purposes of copyright law, . . . the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .

Parody [which comments on the original] needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire [which doesn't comment on the original] can stand on its own two feet and so requires justification for the very act of borrowing. . . .

Now as it happens this "parody/satire" distinction can certainly be criticized (though it can also be defended). First, many works, especially humorous ones, are ambiguous; they don't articulate the point of their commentary in so many words, but leave it to the audience to figure things out, and different members of the audience can perceive things differently. Some people might well see any poem that uses Seussian style to discuss accused murderers as poking fun at Seussian conventions of childish innocence. How is a judge or jury to figure that out, especially if the work was aimed at people whose sensibilities and senses of humor are quite different from the judge's or the jurors' sensibilities?

Second, because of this, authors might be deterred from writing material that does implicitly comment on the original, for fear that this will lead to an expensive lawsuit. Third, it does indeed open the door to judges and juries acting based on their own like or dislike for the defendant's work -- vague rules do indeed risk such viewpoint discrimination. And indeed in some pre-Campbell cases, it did seem that some courts improperly counted a work's vulgarity or sexual theme against it.

But to my knowledge there's no reason to think that modern courts are in fact applying the test based on "revulsion" towards the defendant's work. There's much to criticize in the parody/satire distinction, but no reason to just assume the most cynical explanation of how it's been applied.

Judge's Defamation Suit: Notes from the (Legal) Underground has a very interesting post today on the details of a defamation suit filed by a former judge about claims made against him in an election campaign for a seat on the Illinois Supreme Court. Thanks to Howard for the link.

UPDATE: Jim Copland of the Manhattan Institute offers a different take here.
Conservatives and Torture: Publius asks, "Where's the outrage?"

  I have enabled comments.

  UPDATE: New rule on comments: if your comment is not civil and respectful, I am going to delete it. You may have the greatest point in the world, but if you can't figure out how to express it in a calm and respectful way, don't express it here.

  This rule applies retroactively, as well. If you find that a comment of yours was deleted, you are welcome to post the idea again. But please, keep it civil. You may not realize it, but your arguments are much more effective that way.
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Wednesday, December 22, 2004

Allen Ginsberg and My Family:

Several readers pointed out to me that Allen Ginsberg had much to say about Moloch — which, to remind people, is what the MS Word spell checker changes Sasha's, Benjamin's, and my last name to. This makes me realize that Allen Ginsberg must have actually been writing about us, but his spell-checker screwed things up. Wow! In any case, here are his views of our clan, from Howl:

Moloch! Solitude! Filth! Ugliness! Ashcans and unob-
   tainable dollars! Children screaming under the
   stairways! Boys sobbing in armies! Old men
   weeping in the parks!
Moloch! Moloch! Nightmare of Moloch! Moloch the
   loveless! Mental Moloch! Moloch the heavy
   judger of men!
Moloch the incomprehensible prison! Moloch the
   crossbone soulless jailhouse and Congress of
   sorrows! Moloch whose buildings are judgment!
   Moloch the vast stone of war! Moloch the stun-
   ned governments!
Moloch whose mind is pure machinery! Moloch whose
   blood is running money! Moloch whose fingers
   are ten armies! Moloch whose breast is a canni-
   bal dynamo! Moloch whose ear is a smoking
   tomb!
Moloch whose eyes are a thousand blind windows!
   Moloch whose skyscrapers stand in the long
   streets like endless Jehovahs! Moloch whose fac-
   tories dream and croak in the fog! Moloch whose
   smokestacks and antennae crown the cities!
Moloch whose love is endless oil and stone! Moloch
   whose soul is electricity and banks! Moloch
   whose poverty is the specter of genius! Moloch
   whose fate is a cloud of sexless hydrogen!
   Moloch whose name is the Mind!
Moloch in whom I sit lonely! Moloch in whom I dream
   Angels! Crazy in Moloch! Cocksucker in
   Moloch! Lacklove and manless in Moloch!
Moloch who entered my soul early! Moloch in whom
   I am a consciousness without a body! Moloch
   who frightened me out of my natural ecstasy!
   Moloch whom I abandon! Wake up in Moloch!
   Light streaming out of the sky!
Moloch! Moloch! Robot apartments! invisible suburbs!
   skeleton treasuries! blind capitals! demonic
   industries! spectral nations! invincible mad
   houses! granite cocks! monstrous bombs!
They broke their backs lifting Moloch to Heaven! Pave-
   ments, trees, radios, tons! lifting the city to
   Heaven which exists and is everywhere about
   us!
Cool.

Related Posts (on one page):

  1. Allen Ginsberg and My Family:
  2. The Spell Checker Knows:
  3. Spell-Checker Rewrites History:
Abrams Report:

I should be on MSNBC's Abrams Report today, debating about the Second Amendment. I'm not sure whether it will be live or taped, but I'll be doing the taping at 3:15 pm Pacific.

The Spell Checker Knows:

In an earlier post, I complained that Microsoft Word's spell-checker suggested that "Volokh" be changed to "Moloch." I wasn't wild about the connection to a spiny-scaled lizard ("Moloch horridus") and especially not to a god to whom the Phoenicians and Canaanites supposedly sacrificed children.

But Seth Goldman points out the deep truth underlying Word's suggestion! A second definition of "Moloch" is:

Something possessing the power to exact severe sacrifice.

Around exam time, my students may well find this to be highly apt.

The Copyright Vampires Will Suck Your Blood,

Stephen Bainbridge. Stephen asks me whether he can get away with posting fan fiction that crosses Elric of Melniboné (created by Michael Moorcock) with Anita Blake (of Laurell Hamilton's Anita Blake, Vampire Hunter series).

I'd counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material -- enough character attributes and allusions -- to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names).

To avoid liability, Stephen would have to argue fair use. But while parody that pokes fun at the original, or otherwise comments on it, is often a fair use (see the 2 Live Crew case, Campbell v. Acuff-Rose), parody that simply uses the original to poke fun at something else is generally not a fair use. Thus, for instance, the Ninth Circuit held that an item about the O.J. trial that borrowed from Dr. Seuss infringed the Seuss copyright, because it commented on O.J. but not on Dr. Seuss. And while one can often argue that any use of someone else's work (especially a humorous use of a serious work) in some way comments on the original, the Ninth Circuit case shows that courts are often skeptical of such arguments. It sounds like Stephen may be trying to mock Hamilton's work, but unless the submitted item comments (in a way that the court will recognize) on both Hamilton and Moorcock, then he's in trouble.

Finally, note that this analysis relies on the fact that Stephen's blog has advertising, and thus would be treated as commercial, which is a big strike against a fair use. Parody and commentary that critique the original may be fair use even if they're commercial; and other uses may be fair use if they're noncommercial. But if a court rejects the parody/commentary argument and the use is commercial, then the fair use claim becomes quite weak.

All this is just a general answer. It's hard to tell for sure if one hasn't seen the actual work, and with fair use it's hard to tell for sure even after one has seen the actual work. Still, I'd warn my colleague off his plan -- at least unless he insists that the submitted fiction pretty clearly mock both Moorcock and Hamilton.

Funny Legal Brief:

Yes, you might think that's an oxymoron, but it really is pretty amusing. See here for an excerpt and a pointer to the PDF file.

Tuesday, December 21, 2004

I Beg Your Pardon: Presidential pardons historically have provided a critical safety valve in the federal criminal justice system. Today, though, that is no longer true.

  Throughout American history, Presidents issued pardons in a measurable chunk of federal criminal cases. (Statistics available here and here.) Back when only a few thousand federal criminal cases were charged each year, Presidents generally exercised their pardon power in hundreds of cases. In the early 19th century, for example, James Monroe pardoned 419 people. In the early 20th century, Woodrow Wilson pardoned 2,480 people. On a percentage basis, pardons have been becoming rarer over time. Even in the 1970s and 1980s, however, presidents have averaged about 400 or 500 pardons per Term. And of course, the federal prison population in absolute terms has gone way up since that time: according to Bureau of Prison statistics, the federal prison population has jumped from 20,000 in 1970 to about 150,000 today.

  Under George W. Bush, however, the pardon process essentially has come to a standstill. The Associated Press reports that the total number of pardons that George W. Bush has granted in his first Term in office is currently 31, jumping all the way from 27 with the addition of 4 new pardons announced yesterday. The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon. Further, the four pardons granted yesterday are entirely symbolic. They all involve misdemeanor charges that resulted in probation, and in each case the probation was served and the case closed many years ago — and in some cases many decades ago. (The convictions were obtained in 1969, 1980, 1981, and 1990.) [UPDATE: It turns out that while all 4 crimes were minor and resulted only in probation, the convictions technically were felony convictions, not misdemeanors.]

  Presidential pardons can be politically risky; just ask Bill Clinton about pardoning Marc Rich. But it's the President's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve Presidential pardons?

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19 U.S. Soldiers Killed in Mess Hall Attack in Mosul: The New York Times offers an audio/video report here.
Academic Legal Writing

is now available on amazon.com, though they say it takes 1 to 2 weeks for delivery.

If you want personalized copies, follow the instructions here; I have only copy left right now (24 have been bought since I got the box Friday), but the publisher says that 30 more are on their way.

And remember, some people appreciate New Year's gifts as well as Christmas gifts. (I'm not making this up, that's indeed the way we always did it in my family.) And some people appreciate gifts on any day.

Seriously, one thing I mention in the chapter on getting on law review is that people should start preparing several weeks before the competition. So if the competition is in March (as it is at UCLA, for instance), it would be good for a student to have the book well before then.

Original Documents from Leading First Amendment Cases:

A really cool site for First Amendment junkies -- thanks to my former student Matthew Liebman for the pointer. Here's a list of what they have:

. . .

The "Conscription" cartoon in Masses Publishing . . .

The two-sided circular in Schenck . . .

The speech in Debs . . .

The circulars in Abrams . . .

The Left Wing Manifesto in Gitlow . . .

An article used as evidence in Near . . .

Examples of the documents in Herndon [v. Lowry] . . .

Transcript of the phonograph record in Cantwell . . .

The handbills in Valentine . . .

The speech in Terminiello . . .

Accounts of the speech in Feiner . . .

The leaflet in Beauharnais . . .

The advertisement in New York Times Co. v. Sullivan . . .

Photographs of the protest in O'Brien . . .

The letter to the newspaper in Pickering . . .

Examples of gender-segregated want-ads in Pittsburgh Press . . .

Transcript of the monologue in FCC v. Pacifica . . .

Photographs of the display in Lynch v. Donnelly . . .

Page proofs of the student articles in Kuhlmeier . . .

The "ad parody—not to be taken seriously" in Hustler v. Falwell . . .

Pictures of the displays in Allegheny v. ACLU . . .

The newspaper articles in Cohen v. Cowles Media Co. . . .

The city council resolutions and ordinances in Lukumi . . .

The anonymous leaflets in McIntyre . . .

A picture of crosses in the square in Pinette . . .

The school's student-activity-fee policy in Rosenberger . . .

Correspondence and the newspaper article in Boy Scouts v. Dale . . .

Transcript of the intercepted telephone conversation in Bartnicki . . .

Peremptory Challenges and Unanimous Juries: Dirk Olin has an essay in Slate objecting to the practice of allowing peremptory challenges in jury trials. Peremptory challenges allow a lawyer to dismiss a small number of potential jurors from the jury pool without giving a reason. (The word peremptory means "precluding a right to debate;" the dismissals are called peremptory challenges because the opposing attorney normally cannot challenge them.)

  Olin begins by recounting his experience as a dismissed juror in a criminal case in Newark, NJ. Olin had "been called for a case involving two black guys accused of dealing drugs near a school," and the defense attorney exercised a peremptory challenge to get Olin off the jury. Olin, who describes himself as "a 40-something male mutt of Northern European extraction," suggests that his dismissal was an example of "discrimination against middle-aged white men" that should not be allowed:
On occasion, it is likely that peremptories have been exercised by wise and well-intentioned advocates who used their intuition to keep a bigot or conspirator off a panel. But let's recall that England and Canada get along just fine without them. And in the aggregate, the common costs far outweigh the rare benefits. There's enough sub rosa racism in the system as it is. The peremptory challenge's effect is to disguise it, not minimize it. In reality, it's little more than an invitation to judge-approved jury rigging.
  I think Olin is overlooking something important, however. My sense is that peremptory challenges exist in the United States because juries have to be unanimous, at least in most jurisdictions. In a criminal case, every single juror has to agree for the jury to convict or acquit; a single juror can hang a jury and avoid either a conviction or acquittal. When a single juror can control the outcome of a case, it is reasonable to give parties the power to screen out jurors who they see (whether rightly or wrongly) as unrepresentative of the community at large. Peremptories can filter out unrepresentative viewpoints and leave a more accurate picture of core community values and attitudes.

  Of course, it would be ideal if people from all walks of life and all viewpoints could reach unanimous decisions. But part of the thinking behind peremptories is that jurors with unusual viewpoints may cause more harm than good. I'm not sure if I agree with the argument, but it seems plausible: While other jurors may benefit from exposure to the different perspective, the juror with outlier attititudes may also end up keeping the jury from reaching a unanimous verdict.

  In Olin's case, for example, a defense attorney might reasonably conclude that a white male in his 40s who is an editor of a prominent legal magazine would identify with the police much more than would most citizens of Newark. If the case hinged on the credibility of a police officer, which is not unlikely, it's not out of the question that Olin's views would have been outside of the mainstream among prospective jurors. Of course, that doesn't mean Olin wouldn't be a great juror; it's just that he probably isn't a typical member of the jury pool.

  Finally, Olin notes that England and Canada get along just fine without peremptory challenges. That may be true, but the key question is whether these countries require unanimous juries, as well. I couldn't find anything on whether Canada requires unanimous juries, but some quick research confirmed that England hasn't required unanimous juries since the 1960s.

  UPDATE: It seems the Slate article is simply wrong about Canadian practices. Reader Matt Horner points out that Section 634 of the Canadian Criminal Code permits peremptory challenges:
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to (a ) twenty peremptory challenges, where the accused is charged with high treason or first degree murder; (b ) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a ), for which the accused may be sentenced to imprisonment for a term exceeding five years; or(c ) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a ) or (b ).
Notably, Canada also requires unanimous jury verdicts.
All or Nothing:

I much appreciated Orin's post criticizing the "Nearly Half in U.S. Say Restrict Muslims" reporting of a recent survey. As Orin pointed out, here's what the survey actually measured, quoting this report:

1) Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising.

2) U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage.

3) Mosques should be closely monitored and surveilled by U.S. law enforcement agencies.

4) All Muslim Americans should be required to register their whereabouts with the federal government.

44% of respondents said yes to at least one of these questions.

To Orin's criticisms, let me add this one: Options 1 through 3 say nothing about under what conditions these procedures are to happen. People can have lots of views on them. Consider, for instance, option 1. Some people might say that all Muslim organizations should be infiltrated. Others might say that most should be. Others might say that the government should infiltrate those that it has some reason to believe are being used as recruiting centers for jihadism (that's my view). Still others might say that the government should never infiltrate any religious groups.

But the question lets people choose either "yes" or "no." So the count of those who would "restrict[] . . . civil liberties of Muslim Americans" would include those who would infiltrate all Muslim organizations, as well as those who would simply reject the extreme opposite position that any religious or political organization must be immune from surveillance. (Plus, of course, it's a judgment call whether one's "civil liberties" include immunity from government infiltration of groups to which one belongs -- there are arguments on both sides, but the Supreme Court has generally held that such infiltration doesn't violate either the First Amendment or the Fourth Amendment.)

The hypothetical proposal in "All Muslim Americans should be required to register their whereabouts with the federal government" would be pretty clearly a restriction on civil liberties; I'd reject it myself, and I share Orin's regret that it polled 29%. But it's also the only option that specifies "all," and that would clearly be unconstitutional.

Related Posts (on one page):

  1. All or Nothing:
  2. What Do 44% of Americans Believe?: