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Saturday, August 13, 2005
Slate's "Has-Been";
I've often found the arguments in Slate's new "Has-Been" column/blog (written by Bruce Reed, "who was President Clinton's domestic policy adviser, [and] is president of the Democratic Leadership Council and editor-in-chief of Blueprint magazine") to be rather puzzling. Here's the most recent example:
. . . The Post reports that in 1981, John Roberts sent a memo to Sandra Day O'Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the "appearance of impropriety" and prejudice her views in future cases before the Court. . . .
[I]f it's improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?
In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices. Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an "appearance of impropriety." . . .
What an odd and, in my view, inapt comparison. (Yes, I realize that it's supposed to be funny or witty, but I take it that it's also intended to make a serious point.)
1. To begin with, if you really want to play out the analogy, it seems to me that any law students would be entirely within his rights not to express his views about certain subjects. The student must be able to make arguments about those subjects, and understand others' arguments. But if I ask a student what he thinks about Roe v. Wade, a student tells me "I'd rather not express my views about abortion, but here are the arguments for the decision and here are the arguments against it," I would gladly accept such an answer. In fact, I think it would be unethical for me to insist that a student reveal his own views in such a context, since such a revelation would be quite burdensome on his privacy, and would give very little pedagogical benefit. (It's sometimes useful to know a student's views, for instance when I deliberately try to get students to argue against their own views, but this utility is in my view outweighed by the student's privacy.)
2. Of course, Senators understandably care about nominees' personal views on legal questions, though professors generally don't and shouldn't care about their students' views on legal questions. But that just highlights the inaptness of the analogy between questions asked of nominees and questions asked of students. Students are asked questions to gauge their knowledge; nominees are asked questions to predict how they will vote.
3. And of course an "appearance of impropriety" response from a student is silly for the simple reason that the student's answer won't create an appearance of impropriety. Probably 99% of students won't become judges, and we generally make rules with an eye towards the 99% rather than the 1%. Even as to the remaining 1%, few people will think that an answer given in law school will lead the judge to feel bound by the answer — and thus unable to reconsider the issue based on the parties' arguments — thirty years later.
On the other hand, as I argued in more detail here — and as lots of people have said, and Mr. Reed must surely have heard — there is at least a plausible argument that a nominee's expressions of his views at confirmation hearings may indeed improperly constrain him in the future:
[I]magine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.
Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.
Now one can surely argue that, despite this risk, the nominee should be required to express his views, because the representatives of the people are entitled to consider those views when deciding whether to give him a position of great power. But Mr. Reed's misplaced law school analogy, it seems to me, does nothing to advance this argument.
Supporters of the Iraqi "Resistance":
The Volokh post asking for names of respectable people who support the Iraqi resistance (that is, support the totalitarian terrorists trying to destroy Iraqi democracy) has, so far, yielded an apt quote from Michael Moore, and not much else. As a result, Orin suspects that there may not be many such people--although, as one of Orin's commenters points out, some people who hold the position may not articulate it in polite company.
Well, I just ran "support the Iraqi resistance" through Yahoo, and looked at some of the top hits. Among the supporters of the so-called "resistance" are James Petras (an emeritus professor at the State University of NY), the famous Indian novelist (and winner of the Sydney Peace Prize) Arundhati Roy (who waffles about whether she personally is urging people to engage in violence, but is unequivocal about wanting the "resisters" to take over the country), comedienne Janeane Garafolo analogizing the Iraqi resistance to Americans resisting an illegitimate Russian-Chinese invasion of the United States, and Virginia Rodino (Green Party candidate for U.S. House in Maryland in 2004), who declares herself "in solidarity with the courageous Iraqi resistance.” This is obviously not a comprehensive list, just what was easy to find in a few minutes.
An interesting thread on Democratic Underground shows that among rank and file activists (not the more famous types that Eugene originally asked about), there is a substantial diversity of opinion about whether anti-war activists should support the "resistance."
Defending the Bad Guys?:
If I can put just a toe in the water on the debate as to whether there are a susbtantial number of Western critics who "support the insurgents," or, as the WSJ put it, "side with the Iraqi resistance," I have two quick comments. Or rather, one quick comment and one longer comment. The quick comment is that at least on the question of identifying American (as opposed to Western) critics who have voiced such views, my sense is that the search doesn't seem to be finding much. Based on the evidence so far, at least, there seem to be only a handful of critics in the U.S. who have clearly and unambiguously expressed such views. Second, I wonder if the question doesn't generate more heat than light given the different ways that people might perceive what it means to "support the insurgents" or "side with the resistance." In particular, I wonder if our different best guesses of the likely outcomes in the war are exerting too much of an influence on our perceptions of what "side" people are on. Here's my thinking. To simplify things, let's assume that we can break down the possible futures in Iraq into four basic possibilities: 1) The U.S. beats back the insurgency and democracy flowers in Iraq (call this the "optimistic stay" scenario),
2) The U.S. digs in its heels, spends years fighting the insurgency, loses lots of troops, and years later withdraws, leading to a bloody and disastrous civil war (the "pessimistic stay" scenario);
3) The U.S. decides that it's no longer worth it to stay in Iraq, pulls out relatively soon, and things in Iraq are about as best as you could hope for, perhaps leading to a decent amount of democracy (optimistic leave), and
4) The U.S. decides that it's no longer worth it to stay in Iraq, pulls out soon, and plunges Iraq into a bloody and disastrous civil war with the bad guys assuming control eventually (pessimistic leave). Let's assume that all of us want the best for the United States and democracy in Iraq, but that we are also deeply divided on wisdom of the war in Iraq. Because we all want the best for the U.S. and the prospects of democracy in Iraq, we will all rank options (1) or (3) over options (2) or (4). But because we are divided on the war in Iraq, and therefore are divided on whether U.S. troops are likely to help or hurt things, we will likely split on our perceptions of the likelihood of the different scenarios coming true. If you were for the war, you are likely to see the realistic choice set as between scenarios (1) and (4), and to prefer (1); if you were against the war, you are likely to see the realistic choice set as between scenarios (2) and (3) and to prefer (3). The insurgents, on the other hand, seem to want something more like option (4). (At least as far as I can tell — others are much more expert on this than I am.) The problem with claims that one side "supports the insurgents" or "sides with the resistance" then, is that it doesn't clearly distinguish between those who want option (4) over (1) and those who want option (3) over (2). For example, imagine a commentator announces that he wants the U.S. to leave Iraq immediately, but doesn't explain why. Those who are against the war are likely to construe it as advocacy for (3) over (2), as they see those as the two basic options. Those who are for the war may see it as advocacy for (4) over (1), as they see those as the two basic options. And if you're against against the war and favor (3) over (2), you're like to be pretty ticked — and reasonably so — by the suggestion that you're actually in favor of (4) over (1). Anyway, all of this is pretty oversimplified. There's a lot more to it that this. But in the end, my sense is that the question may end up generating more heat than light.
Friday, August 12, 2005
People Who Falsely Claim That Their Opponents Support the Bad Guys:
Henry Farrell (Crooked Timber) is running, in response to my query about Westerners who defend the Iraqi insurgents, a query about people who "make egregious claims that a substantial section of those who opposed the war are, in fact, rooting for the other side."
Falsely claiming that someone (or the majority of some group) is rooting for the bad guys in a war is indeed pretty egregious misbehavior. (Accurately claiming that, of course, is not egregious.) I haven't followed the responses, so I can't speak to their merits, but to the extent that they uncover and condemn such false claims, they are doing reasoned debate (and basic decency and fairness) a great service.
As to whether it is indeed accurate to say that a "substantial section of those who opposed the war" is rooting for the other side, I can't speak helpfully to that, since "substantial" is pretty vague, and since I haven't followed closely the range of public commentary on the subject. My tentative guess is that the percentages of Americans and Europeans who want America to lose in Iraq may be quite different, though I'm not sure. But whether the number is "substantial" in either place is hard to tell in any objective fashion.
Reputation and LSATs:
Our last important result concerned the reputation variables - one for academic reputation based on surveys of law faculty and one for lawyer/judge reputation based on a survey of lawyers and judges. U.S. News doesn't include much detail about the surveys (things like response rates would be nice), but I've filled out the academic one a few times and so know a little about it. Essentially each person who gets a survey is asked to rate all the law schools from 1-5.
We found that changes in academic reputation were associated with higher median LSAT scores for the top quartile but not for the other three quartiles.
An important question about the reputational variables is whether they are cause or effect. It seems implausible that very many law professors (or lawyers or judges) have even moderately well-informed views of the quality of more than a handful of law schools. Prof. Jeffrey Stake at Indiana, in a paper in the same symposium as ours, found evidence of an "echo" effect in reputation.
If you look at reputation across time, there is quite a bit of stability at the top and a lot of movement (especially in lawyer/judge reputation) at the bottom. (I have some nice graphs to post but haven't figured out how to do it yet. As soon as I do, I will.)
What is Chicken?:
On the Roberts-Friendly issue raised by Orin, it is clear that this raises a key question to ask Roberts at his confirmation hearing--"What is chicken?"
(This post is for all my Contracts law students through the years...).
For more on all chicken law issues, I refer you, of course, to the classic treatment by Jim Huffman, "Chicken Law in an Eggshell."
Diversity:
Ronald Bailey (Hit & Run) writes:
What Is Diversity Anyway?
"The white populations of the District, Arlington and Alexandria have grown this decade even as the region's outer counties have grown more diverse, according to new census estimates," according to a story in yesterday's Washington Post. As a part-time resident of DC, I was curious about the Post's take on the idea of what constitutes increasing or decreasing diversity in any community. The Post noted that the percentage of whites living in town rose from 28.2 percent in 2000 to 30.3 percent in 2004. My puzzlement is whether this represents an increase in "diversity" or not? Or as the Post story seems to imply, is "diversity" maximized when no white people live in a community at all? Just wondering.
Were the votes of Justices Ginsburg and Breyer in NOW v. Scheidler
"in effect backing the terrorists against their victims"? Four of the smartest bloggers out there — Megan McArdle, Mark Kleiman, Kevin Drum, and Eugene Volokh — are discusing the merits of the NARAL ad.
Kleiman writes:
But one of the defendants in the earlier case [Bray] was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)
Eugene Volokh points out that the Court, by 6-3, upheld the position in the brief, and argues that therefore the brief can't be said to have been outside the mainstream of legal thinking. Fair enough.
But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. . . .
If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.
By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That's not "excusing" violence, but it's not exactly opposing, either.
The obvious irony here has not been noted. Kleiman points to NOW v. Scheidler, a case that I did some pro bono work on a few years ago for NOW. It involved the use of violence (including allegedly bombing) to block clinics, women, and doctors from doing or having abortions. Although NOW won its first round in the US Supreme Court, it lost its second round (2003), and a third round is now pending.
If I read the commentators correctly, unlike the Bray case for which Roberts was attacked, NOW v. Scheidler explicitly involved violence and bombing, which Kleiman correctly terms terrorism. Nor were the justices in the Scheidler case acting as lawyers for their client (as Roberts was); they were acting as judges interpreting federal statutes in light of the Constitution.
In the 2003 Scheidler case (8-1 against NOW), how did the two Clinton appointees vote? Both Justice Ginsburg and Justice Breyer voted against NOW and in favor of those who were found by a jury to have been responsible for violence. If one were to use Mark Kleiman's inflamatory characterization to describe their actions, both Ginsburg and Breyer were "in effect backing the terrorists against their victims."
If you read Justice Ginsburg's concurrence in Scheidler (joined by Justice Breyer), you see much the same sort of argument about RICO and the Hobbs Act that Roberts made in Bray about the scope of the Civil Rights Act. Here is the entirety of Justice Ginsburg's 2003 concurrence in NOW v. Scheidler:
I join the Court's opinion, persuaded that the Seventh Circuit's decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, "Congress has enacted specific legislation responsive to the concerns that gave rise to these cases." Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners' acknowledgment that at least some of the protesters' conduct was criminal, and observing that "[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners' actions"). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.**
RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act's compass. See, e.g., §1963(a) (up to 20 years' imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys' fees for private plaintiffs). It has already "evolv[ed] into something quite different from the original conception of its enactors," Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 500 (1985), warranting "concern[s] over the consequences of an unbridled reading of the statute," id., at 481. The Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of "extortion" adopted by the Seventh Circuit.
The lone dissenter was Justice Stevens. And, no, I don't think that the 8-1 Supreme Court was right on this one for reasons too technical to explain here.
The problem with an ad like NARAL's goes much deeper than any factual twisting. Many lawyers and judges really do believe that their political preferences are foreclosed by statutes or by the Constitution — perhaps not all the time, but often. My own speculation is that Ginsburg and Breyer were motivated both by a respect for law in this case and by a desire to discourage RICO suits against other legitimate protests. Also, one might argue that the very success of NOW's lawsuit in the 1990s had significantly decreased clinic bombings and violence, ironically reducing the need for a big damage judgment to stop the terrorism that had been occurring years before.
Let me brutally clear: I think it would be offensive to tie Ginsburg and Breyer to abortion clinic bombers based on their votes and opinion in Scheidler, just as I think it is offensive to tie Roberts to abortion clinic bombers based on the government's brief in Bray (especially since Roberts was acting for a client and Bray was not as clearly limited to violence as Scheidler is).
UPDATE: In brief, to explain my legal view of the 2003 opinions in NOW v. Scheidler: Even if the Court was right that the scope of Hobbs Act extortion is limited to obtaining money or ordinary property (the Court's holding here is certainly defensible), the Court completely botched a crucial issue that it barely mentioned. The Hobbs Act was not the only basis of NOW's suit; the RICO claims were also based on the Travel Act, which had been held by the Court to invoke state law definitions of blackmail and extortion, whatever they are called by the various states. These state extortion statutes punish compelling action as well as obtaining property. Accordingly (contrary to my memory of the NOW v. Scheidler majority's holding), federal RICO extortion should not be limited to obtaining property, even though the federal Hobbs Act may be.
2d UPDATE: Mark Kleiman responds thoughtfully here.
Many John Roberts-Related Documents --
his memos, decisions, oral argument transcripts, questionnaire responses, and more -- are linked to from this Washington Post page.
Praise for Southwest Airlines:
I just had a VERY pleasant customer service experience with Southwest Airlines, which is not something I can say about my interactions with most other airlines these days (of the "legacy carriers," btw, Continental is easily the best). Just thought I'd pass it along.
Is John Roberts Another Henry Friendly?:
John Roberts, Robert Gordon, and I apparently have something in common: We all love Henry Friendly. Judge Friendly, who served on the Second Circuit Court of Appeals from 1959 to 1986, was a remarkably good judge who Roberts appears to admire greatly. In this piece over at Slate, Gordon (who clerked for a judge who clerked for Friendly) tries to make the case that John Roberts (who clerked for Friendly) probably won't follow in Judge Friendly's footsteps if confirmed to the Supreme Court. If I'm not mistaken, though, the evidence Gordon assembles is rather sparse. Gordon offers more reasons to think Roberts will resemble Friendly than reasons to think he won't. Granted, Gordon offers a number of grounds for believing that Roberts is a conservative. But as best I can tell, Gordon comes up with weak reasons to think that Roberts' views might be inconsistent with those of Judge Friendly. Here the four reasons he offers, in the order they appear in Slate: 1. As a young lawyer, John Roberts wrote a memo on the role of habeas corpus that largely mirrored and heavily cited Friendly's views, but that contained a suggestion on one issue that Friendly apparently thought was incorrect. Roberts suggested in his memo that the right to habeas corpus could be suspended in federal court so long as it was available in state court, while Friendly apparently disagreed. 2. On questions of statutory interpretation, Roberts may be more of a textualist that Friendly. Friendly was was more of a cautious purposivist than a textualist, and was willing to cite and rely on legislative history in some circumstances. In contrast, there is some evidence that Roberts appears to be less willing to cite legislative history. (Technically, Gordon makes this point in the course of noting that Roberts once cited Friendly out of context on a question of statutory interpretation, but I gather that the purpose of pointing that out is to touch on a possible difference in their approaches rather than to criticize Roberts for being overly eager to cite Friendly.) 3. As a young political appointee in the Reagan Justice Department, Roberts wrote internal memos that appear more political and less judicious than Friendly's judicial opinions. 4. Some of Friendly's notable opinions written during his 28 years as a judge reached liberal conclusions. In contrast, Roberts has not written any opinions in his two years that reached notably liberal outcomes. It seems to me that these four reasons form a rather weak basis for Gordon's claim. The first point seems doctrinally interesting but doesn't clearly indicate to me a major philosophical divide (although I should say that it's not my area, so it's possible that it does for reasons that aren't clear to me). The second seems to be mostly a reflection of changing views of statutory interpretation in the last fifty years. The third seems to be comparing apples and oranges, something that Gordon notes is a possibility. The fourth also compares apples and oranges, as it's hard to compare 28 years of Second Circuit opinions from the Warren and Burger Court era with two years' worth of DC Circuit opinions from the late Rehnquist Court period. Of course, no two people are the same, and it's always hard to compare one judge's views a half century ago to views of a different judge (especially as a young man) nominated for a different Court today. And it may be that Roberts is to the right of Friendly. At the same time, if those are the only reasons to think that Roberts is different from Friendly, I end up thinking it's more likely that they are unusually similar than that they are particularly different.
Councilman and the Need for Legislative Reform:
I've been mulling over yesterday's First Circuit en banc opinion in United States v. Councilman, an important Internet wiretapping case. I realize that this post isn't likely to be of much interest to general readers, as it's pretty technical stuff, but I wanted to offer some thoughts on the decision and where we go from here for readers who may have been following the case (all remarks are in my personal capacity, by the way). First, the First Circuit's opinion is remarkably narrow. The Court did not resolve the big question that many have believed was at the heart of the Councilman case, namely, the scope of "intercept" in the context of Internet communications. Instead, the Court construed Councilman's brief as only raising the question of whether a communication could both be in "electronic storage" and also constitute an "electronic communication." The majority quite properly concluded that the answer was yes, and thus reversed the district court. On the question of the meaning of intercept, the court concluded that Councilman had drafted his brief in such a way that the meaning of intercept was "simply a variation on, and entirely subsumed within" his argument on the meaning of electronic communication. Given that, there was no need to wade into the "morass" of issues raised by the definition of "intercept." This is a somewhat frustrating answer from an analytical perspective, as the meaning of "intercept" and the meaning of "electronic communication" are quite distinct. Further, Councilman's argument that a communication could not both be in storage and an electronic communication was always quite weak. Consider this: At the time of the conduct in Councilman, the Stored Communications Act, 18 U.S.C. 2701-11, the federal statute that protects the privacy of Internet communications in storage, applied only to electronic communications. Thus, if Councilman's argument on this point was right — and remarkably, judges Torruella and Cyr thought it was — the Stored Communications Act by definition could never apply to anything. (That is, the statute only applied to stored electronic communications, but the Councilman argument adopted by Judges Cyr and Torruella insists that Congress clearly intended that there could be no such thing as a stored electronic communication.) This reading of the statutory scheme would have been rather remarkable. In the end, then, the First Circuit answered a very easy question, and decided that given the defendant's brief it didn't need to decide the hard one. What this effectively does, I think, is put the ball back in Congress's court. The en banc opinion leaves the major issue open, and the issue is sufficiently central to the basic framework of Internet surveillance law that some kind of statutory solution seems very much needed. My own recommendation is for Congress to pass Senator Leahy's bill, S. 936, The E-mail Privacy Act of 2005, which I blogged about back in May. Leahy's bill is a very good fix, and will resolve the "morass" of issues that were briefed before the First Circuit but not resolved by its en banc opinion.
Westerners Who Defend the Iraqi Insurgents:
In response to my recent quote of an OpinionJournal post, some people questioned whether there really are a substantial number of Western commentators who defend the Iraqi insurgents, or at least justify their actions as being a supposed campaign for self-determination, allegedly justifiable rage at Western misbehavior, and so on. I think this is a good opportunity to collect examples of such people, to show that they do exist, and are worth criticizing.
If you have some such worthies in mind, please post the following in the comments:
The name and brief description of the person (e.g., columnist for this or that newspaper, official in this or that prominent organization). An exact quote in which they defend the insurgents or seek to justify their actions. The URL of the article where the quote can be found. Please refer to original sources, rather than copies of the sources on other sites, copies of copies, and so on. (If you have LEXIS access and found the article there, but the article is not available online, include the name of the newspaper, magazine, or broadcast, the date, and the name of the article.)
Please also
Stick with quotes that are pretty unambiguous — no need to dilute the clear stuff with questionable material. Stick with journalists, officials, or at least famous people; avoid comments by unknown people on others' blogs. Check the thread before posting, to avoid duplication.
Many thanks — this should be a useful resource for people who want to respond to questions about whether such people actually exist. (For a sample of where I've done this once before on another topic, see my page on calls for total bans of handguns or all guns, which I posted in response to the common argument that supposedly "no one is talking about banning guns, so your slippery slope concerns are just paranoia.")
Presidential Order:
In what order have I arranged the Presidents below? (Feel free to do some online research, but don't just google this list, etc.)
Pierce Tyler Andrew Johnson Truman Theodore Roosevelt Arthur Cleveland Madison Fillmore Coolidge Grant, McKinley Lyndon Johnson Ford Taft Jackson Nixon All other Presidents
A Math Puzzle:
Sometimes, in idle moments, I notice patterns in numbers I see, for instance phone numbers. For some reason, they especially relate to sums and differences and multiples of 9. (Is it just me, or do others do this, too?)
So, if I see a number that starts with 357, I might observe that 7+5-3 = 9. If it starts with 263, I notice that 6+3 = 9 (though I have to throw out the 2). If it starts with 442, that's obvious: 4-4 = 0. But for some 3-digit prefixes, you can't do that — UCLA's 825, for instance, can't yield a multiple of 9 no matter how you add or subtract any (nonempty) subset of the digits.
(1) What about the 4-digit suffixes? Is it the case that for any 4-digit suffix, you can find some nonempty subset (either 1, 2, 3, or 4 of the digits) such that, when the proper +s or -s are inserted, you can get a multiple of 9? My office suffix, 3926, is too easy, since 9 alone is a multiple of 9, as of course is 3+6. What about others?
(2) More generally, say that you're looking for multiples of some number N (or, if you want to make it less general, use N=29). What is the lowest number X such that for any X positive integers, it is guaranteed that some nonempty subset of those X integers will, with the proper +s and -s added, yield a multiple of N? Thus, can you be sure that for any 4 integers, some subset will with the right +s and -s yield a multiple of 29? What about for any 5 integers? For any 6 integers?
REMINDERS: (A) Only addition and subtraction will qualify. Don't tell me how you can get the result using square roots or multiplication or what have you.
(B) As one of the examples illustrates, it's OK to get to a multiple of N by getting to 0, and subtracting two equal digits if necessary.
(C) Remember that the problem isn't asking for specific sets of positive integers that can be used to get to a multiple of N. It's asking for the lowest number X such thar any set of X integers will be guaranteed to yield a multiple of N (i.e., if you take some nonempty subset of the integers, and throw in +s and -s in the right places, the result will be a multiple of N).
I've deleted the comments posted before this clarification was added.
A Nanny State Pediatrician:
This is an actual quote from a spokesman for the American Academy of Pediatrics from the HHS/FTC Joint Workshop on obesity and marketing a few weeks back (p. 142 of the Hearing transcript) expressing the Academy's support for a ban on advertising directed at children as a tool to fight children's obesity:
Contrast that with the amount of time that children spend seeing--let's bandy about the number--40,000 or so commercial messages each year, the 20 percent of two to seven-year-olds that have televisions in their bedrooms, the 68 percent of eight to 18-year-olds that have television in their bedrooms, it hardly seems like a level playing field for parents and pediatricians.
With respect to the difficulty of pediatricians influencing children's diets, I grant his point. But with respect to parents, give me a break--68% percent of parents allow their kids to have televisions in their bedrooms and then complain that they are defenseless against advertising? If this is a concern, I can think of one obvious defense for parents to "level the playing field"--how about removing the tv from the bedroom? I'll bet that would actually make a difference in children's obesity rates.
This leaves aside the fabulism of the 40,000 figure--a figure that I have debunked elsewhere.
Update:
I should have been more clear in my original post that my comments (this time) were not addressed at the question of the merits of restricting food (or other advertising) directed at children. It was just meant to focus on the implication that somehow the presence of the televisions in kids' rooms came about exogenously and that parents are truly powerless to prevent the exposure of their kids to television.
Thursday, August 11, 2005
Law school games:
The importance law schools have placed on U.S. News rankings mean that schools are engaging in some gaming behavior. Indeed, law schools are - more or less - in the position of taxpayers figuring out how to manipulate the tax code to minimize their taxes. There is a fair amount of play in a number of the reporting rules and schools have taken advantage of this. Some, of course, have crossed over the line and engaged in "tax fraud".
Like the IRS, U.S. News has been modifying the rules to try to stop the gaming. Most recently, it switched to using the 25th/75th percentile LSAT and GPA numbers rather than the median numbers, reasoning that since the former are reported to the ABA, law schools would be less likely to fudge them.
We found that two strategies seemed to have worked in raising median LSAT scores. (Note, we simply examined the data - we didn't interview all 190 or so schools to see if they had explicitly adopted these strategies for U.S. News purposes.)
Schools can decrease the first year class by cutting from the bottom of the admitted pool (and, if they want to, make up the revenue by increasing the number of transfer applicants they take, since transfer applicants don't count for U.S. News purposes.) We found that schools in the first quartile whose first year class size had shrunk increased their median LSAT scores relative to those who didn't, with a 10% significance level (higher than we'd like, but there were only 44 schools in this group.)
Schools in the other quartiles played a different game - here we saw some schools shifting students from full time to part time (part timers don't count for U.S. News), which we measured by comparing the proportion of total 1L class in the full time program across time. This worked too - a 10% shift from FT to PT gave a 0.54 point median LSAT gain.
There are other games schools can play too - hiring unemployed grads to do filing for a few weeks, for example, fits the "employed at graduation" definition (any job will do).
Some of these games are harmless. Some are not. All are a diversion from competing on educational quality, innovative programs, etc. We recommended that U.S. News consider revising its part time rules (which is likely to hurt a number of schools with large part time programs) and the NYT Magazine story by Alex Wellen reported that U.S. News is considering doing so.
Sidenote: I highly recommend Alex's book, Barman, an account of law school, the bar exam, and practice with the interesting feature of noting the U.S. News ranks of everyone in it. Alex had a much more interesting law school social life than I did; the book offers a perceptive account of legal education. He has a nice web site too.
Murder of Steven Vincent:
OpinionJournal's Best of the Web writes:
The Scotsman has an explanation for the murder in Iraq of journalist Steven Vincent. See if you can finish this sentence:
An American journalist who was shot dead in Basra last week was executed by Shiite extremists who . . .
. . . had been worn down by grinding poverty?
. . . were angry over Israel's treatment of Palestinian Arabs?
. . . resented the presence in their country of foreign troops?
. . . sought to avenge the abuses at Abu Ghraib?
If you said any of the above, you're wrong. Here's the full sentence:
An American journalist who was shot dead in Basra last week was executed by Shiite extremists who knew he was intending to marry his Muslim interpreter, it has emerged.
That's right, Steven Vincent was killed to prevent him from intermarrying. Those Westerners who side with the "Iraqi resistance" against America and its allies are defending the equivalent of the murder of Emmett Till.
UPDATE: Some people interpreted the OpinionJournal item, and this one, as criticizing all opponents of the Iraq War. That's an interpretation that's in the mind of the interpreters -- I see no support for it in the text of the post.
The item is quite clearly a criticism of those Westerners who do endorse the Iraqi "resistance," or at least explain its actions in ways that lessen or eliminate the killers' culpability (poverty, supposed desire for "self-determination," supposedly justifiable anger at various American, Israeli, or other Western sins). That's the group the item identifies. It's the group against which the item's argument makes sense. The item doesn't criticize any broader group of Iraq War opponents.
Fortunately, the group being criticized is not a vast group. So? They're still worth condemning.
Specter Complains to NARAL About the Roberts Ad:
His letter is here.
The Kelo Dissent and Substantive Due Process:
Jack Balkin offers up a provocative post at Balkinization. I don't know enough about this stuff to have any thoughts on it, but I gather lots of VC readers will find it interesting.
Disney:
Conglomerate is hosting a forum on the Disney decision, featuring many leading commentators.
Book Review of LoPucki, Courting Failure:
My new article, "Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review of Lynn M. Lopucki, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts," (forthcoming in the Georgetown Law Journal) is now available for download on SSRN and BEPress.
As the title indicates, this is a book review of essay of Lynn LoPucki's fascinating and stimulating new book Courting Failure, which compiles LoPucki's voluminous empirical work over the past decade together with many fascinating case studies of problems with the current Chapter 11 process, including its treatment of many of the recent bankruptcy corporate scandals (such as Enron, WorldCom, etc.). In addition to being stimulating and informative, it is a rollicking great read and is written in a style that would be entertaining to a more general audience. It is also sure to be very controversial and will frame the academic and policy debate in this area for the next several years.
Here's the Abstract for my review:
Abstract:
In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki's book argues that that current bankruptcy venue rules have spawned an improper "competition for big cases" that has "corrupted" America's bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.
This essay reviews LoPucki's book and its central theoretical and empirical arguments. LoPucki offers powerful empirical evidence that something is amiss with much of current American bankruptcy practice. This essay will try to flesh out in more detail the model and theoretical foundations that implicit underlie LoPucki's indictment of bankruptcy forum-shopping (and other forms of forum-shopping as well). Empirical evidence standing alone is insufficient to draw conclusions about whether forum-shopping is in general good or bad without a clearly-stated hypothesis to test. Instead, it is necessary to also have a theoretical model sufficient to generate testable hypotheses as a predicate both for determining whether forum-shopping is good or bad on net, as well as the likely effects of reform proposals. Although LoPucki identifies several problem areas in the current Chapter 11 reorganization process, it is not as clear that all of these problems can be clearly attributed to runaway forum-shopping. Instead, they may simply be good-faith errors or mistakes, for which continued competition may be beneficial, in that the competition may actually expedite the process of self-correction.
This review essay develops a model of the institutions and incentives governing the forum-shopping competition described by LoPucki in an effort to determine whether the empirical observations proffered by LoPucki can be best explained as the outcome of improper forum-shopping competition. The essay then closes with an analysis of provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, noting that many of the provisions in the legislation offer substantive responses to many of the problems identified by LoPucki.
Its a fast and entertaining read and I recommend it highly. Comments are much appreciated.
Councilman Update:
Great news -- the en banc First Circuit has issued its opinion in United States v. Councilman, a very important Internet privacy case, and reversed the district court. I'm working my way through the opinion now and will offer some thoughts later in the day. Thanks to Howard for the link.
Cool Legal Opinion from 1908:
In the course of writing an article on encryption a few years ago, I came across a very interesting Texas state court decision from 1908 on the liability of telegraph operators for failing to deliver messages in a foreign language. What I find interesting about the decision is how modern it sounds, even a century later. Some of the language is archaic, to be sure, but the opinion has a vaguely Posnerian flavor. The case is Western Union Telegraph Co. v. Olivarri, 110 S.W. 930 (Tex. Civ. App. 1908), aff'd 135 S.W. 1158 (Tex. 1911). The opinion was written by a judge named William S. Fly. In this case, a woman in San Antonio, Texas sent a Western Union telegram in Spanish to her husband in Mexico. The telegram stated that her newborn children were ill and likely would die, and asked the husband to come to San Antonio to take care of her. Western Union failed to deliver the message, and the woman sued Western Union for her pain and suffering when her husband did not arrive. The established rule at the time was that the telegraph company could be liable for mental anguish damages arising from a failure to deliver a telegram correctly if the company knew or should have known the importance of the message. In its defense, Western Union argued that messages in a foreign language were like encrypted messages, or, as they termed it, "cipher messages." Telegraph customers often encrypted their messages with simple encryption schemes to protect the privacy of their communications. Telegraph companies were not liable for the consequences of misdelivered encrypted communications: By their nature, the importance of such communications was not clear to the telegraph company. Writing for the court, Judge Fly rejected the metaphor and offered the following analysis: We do not think a message in a foreign tongue for delivery in a country where that tongue is written and spoken can be placed in the same category as a cipher message. That kind of message is sent for the purpose of concealing from the telegraph company, as well as all other parties, except the person to whom it is sent, the purport of the message. The telegraph company, not being in possession of the key to their meaning, cannot possibly understand such telegrams, and is under no obligation to make any inquiries in regard to them. In fact disclosure of their meaning would defeat their very object in sending them. The telegram, however, to a person in a foreign country in the language of that country, is not intended to conceal, but that language is used as the usual vehicle of thought and desire, as being easier, not only to be comprehended by the person to whom it is sent, but easier to be received and understood by the agents of the telegraphic company receiving it in the foreign country. Telegraph companies hold themselves out as being ready and competent to send messages to all parts of the world in the different languages, and to hold that it is a defense to an action for negligence to prove that the receiving agent of a telegraph company did not understand the language in which the message was couched would place it in the power of such company to almost paralyze the commerce of the world by its negligence with immunity, because of a failure to furnish capable agents to carry on the business it is accepting.
No requirement that messages received by it shall be in the English language was attempted to be shown by appellant, and by its acceptance of messages in foreign languages it is holding itself out as being capable of handling them in a judicious and expeditious manner, and it would be evidence of inefficient service on its part to handle messages accepted by it, if it shows that it could not tell a rush message in a foreign language from one not so urgent. The duty rests on it to give matters pertaining to life and death the precedence in service, and, if its agents cannot tell one from the other because it is not couched in the English language, it is attempting to do that which it knows it cannot do, and should be held liable for its negligence in connection therewith. By the slightest diligence appellant's receiving agent could have ascertained the urgency of the telegram. No effort was made to ascertain the purport of the message.
It is undoubtedly the duty of a telegraph company to deliver all messages with reasonable dispatch, the main reason for adopting telegraphic communication being the desire for rapidity and great dispatch, and, if there is any sound reason for placing liability for failure to deliver in a reasonable time on the condition of the telegraph company's knowledge of the importance of the telegram, which the writer does not believe, there can be no reason for holding that a telegraph company cannot be held liable for failure to deliver at all, because it did not understand the message. The better rule, it seems to the writer, would be to hold telegraph companies liable for the consequences of their negligence in failing to promptly deliver messages, according to the terms of the contract of transmission, whether the agents of those companies know the importance of the messages or not. This view is, however, not in consonance with the decisions of this state, wherein it is held that damages for mental anguish in this class of cases cannot be recovered unless an agent of the telegraph company had knowledge of the importance of the telegram, or was by the language of the message put upon inquiry which would have disclosed its importance. Under the operation of that rule we are of the opinion that the duty devolved upon appellant to have agents in its offices in a city of the size of San Antonio, where it is holding itself out as a transmitter of messages by telegraph to Mexico, who have intelligence and education sufficient to understand telegrams presented to them in the Spanish language, and that, if the agent did not understand that language, he should have required from the sender a translation of the message into the English language. Interesting, isn't it? Pretty sophisticated analysis, especially for an opinion in 1908. Does anyone know more about Justice Fly? I googled him, but didn't find much.
Suicide Rates:
A little-known piece of data that came up in a lunchtime conversation with colleagues a week ago: Unlike homicides, which are highest among older minors and young adults, suicide rates are lower among teenagers, rise in the 20s, rise again in the 30s, and then remain fairly stable, though with an odd trough in the 60s and something of a bump in the 80s.
My sense is that this will be a surprise to many, since media accounts often tend to focus on suicides among the young. That's understandable, because such suicides seem more tragic (more years of life lost), more preventable (on the theory that they're more likely to be impulsive reactions to shocks, such as a lover's departure, that adults over time get used to), and less understandable (since it's less likely that the suicide is a response to an incurable and painful physical illness, which I suspect suicides among the old are more likely to be). But in fact the young are less prone to suicide than the middle-aged and the old.
In any case, here's the data, from CDC's invaluable WISQARS site:
| Age Group | Number of Deaths | Population | Crude Rate | | 00-04 | 0 | 19,575,536 | 0.00 | | 05-09 | 4 | 19,960,444 | 0.02 | | 10-14 | 260 | 21,093,745 | 1.23 | | 15-19 | 1,513 | 20,347,666 | 7.44 | | 20-24 | 2,497 | 20,329,966 | 12.28 | | 25-29 | 2,423 | 18,901,904 | 12.82 | | 30-34 | 2,623 | 20,812,587 | 12.60 | | 35-39 | 3,141 | 21,805,533 | 14.40 | | 40-44 | 3,710 | 22,941,937 | 16.17 | | 45-49 | 3,473 | 21,264,091 | 16.33 | | 50-54 | 2,835 | 18,764,692 | 15.11 | | 55-59 | 2,186 | 14,972,666 | 14.60 | | 60-64 | 1,432 | 11,595,687 | 12.35 | | 65-69 | 1,197 | 9,585,105 | 12.49 | | 70-74 | 1,266 | 8,708,218 | 14.54 | | 75-79 | 1,231 | 7,433,706 | 16.56 | | 80-84 | 1,028 | 5,310,113 | 19.36 | | 85+ | 826 | 4,570,405 | 18.07 |
Suicides among women show a somewhat different pattern among the middle-aged and the older, though they're still relatively low among the young:
| Age Group | Number of Deaths | Population | Crude Rate | | 00-04 | 0 | 9,566,970 | 0.00 | | 05-09 | 1 | 9,742,000 | 0.01 | | 10-14 | 64 | 10,288,734 | 0.62 | | 15-19 | 233 | 9,879,547 | 2.36 | | 20-24 | 345 | 9,899,299 | 3.49 | | 25-29 | 420 | 9,289,295 | 4.52 | | 30-34 | 491 | 10,316,427 | 4.76 | | 35-39 | 657 | 10,900,923 | 6.03 | | 40-44 | 889 | 11,549,817 | 7.70 | | 45-49 | 865 | 10,787,388 | 8.02 | | 50-54 | 647 | 9,585,588 | 6.75 | | 55-59 | 478 | 7,718,022 | 6.19 | | 60-64 | 303 | 6,076,871 | 4.99 | | 65-69 | 222 | 5,143,790 | 4.32 | | 70-74 | 188 | 4,840,096 | 3.88 | | 75-79 | 177 | 4,357,148 | 4.06 | | 80-84 | 144 | 3,304,789 | 4.36 | | 85+ | 122 | 3,193,882 | 3.82 |
Figures for men alone are not much different from the total ones, because men account for the great majority of suicides.
Length of Presidential Term:
Each of the following Presidents served exactly one full term in office (i.e., they did not start in the middle of the term by replacing someone else; they did not leave in the middle of the term through death or resignation; and they did not seek or win reelection). However, one of them served a different number of days than the others. Who, and why?
John Adams, John Quincy Adams, Martin Van Buren, James K. Polk, Franklin Pierce, James Buchanan, Rutherford B. Hayes, Benjamin Harrison, William Howard Taft, Herbert Hoover, Jimmy Carter, George H.W. Bush Each of the following Presidents served exactly two full terms in office. However, one of them served a different number of days than the others. Who, and why?
George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Ulysses S. Grant, Grover Cleveland, Woodrow Wilson, Dwight Eisenhower, Ronald Reagan, Bill Clinton
(No google, no wikipedia, etc. These both can be figured out.)
NCAA Mascot Litigation?
Florida State's President T.K. Wetherell is making rumblings that it will sue if the NCAA follows through with its prohibition on allowing teams with "hostile or abusive" mascots from entering postseason tournaments:
"We're not going to change the name - that's not an option," Wetherell told the Tallahassee Democrat Friday evening. "We would not do that."
Wetherell, who was angered by the decision, said he had it in his mind "to paint (the Seminole logo) three times as big on the field (at Doak Campbell Stadium)."
The NCAA Executive Committee surprised FSU when it announced the bans on Friday.
Wetherell reiterated comments he made to the Democrat on Wednesday that, in the face of a ban, he would seek legal action against the NCAA. He said that because the NCAA, in his opinion, deviated from its procedures in reaching its decisions, "the first thing the court would do is throw it out based on the NCAA's process."
Wetherell also mentioned that FSU might have grounds for economic restitution.
"I don't foresee any circumstances short of the NCAA reversing this decision that will not put us in court," said Wetherell, whose day included wrist surgery after he fell in the morning. "We've got lawyers looking at it right now."
The same article has this interesting perspective on the issue by Max B. Osceola, Jr., a member of the Tribal Council of the Seminole Tribe of Florida, which has endorsed the use of the Seminole mascot and eas not consulted by the NCAA:
Osceola said the Seminole Tribe of Florida disagrees with the NCAA's decision and determination that FSU's nickname and symbols are "hostile and abusive."
***
"It's like history - they left the natives out," Osceola said. "They have non-natives telling natives what's good for them or how they should use their name. You have a committee made up of non-natives telling people that they can not use a native name when you have a native tribe - a tribal government, duly elected and constituted - that said they agree with Florida State.
"There are some names, like the NFL team the Washington Redskins - that's derogatory. Those are abusive and hostile but not this."
I have not seen any response to FSU's comments from NCAA headquarters in Indianapolis, Indiana or from NCAA President Myles Brand, former President of the University of Indiana University.
Update:
If anyone can illuminate me on the likely nature of FSU's claim here, I would be interested. My impression is that they are thinking about breach of contract, on the basis that the comment that the NCAA failed to follow its own procedures. I could also see trying an antitrust action if the NCAA excludes them from participating in profitable postseason competition on the basis of this particular rule, but it isn't exactly clear to me what that action would look like. Presumably this might collapse into the breach of contract claim, as the antitrust claim presumably would be predicated on the theory that the NCAA exceeded its authority or failed to follow its own procedures. As for civil rights or First Amendment claims, I'm no expert on that, so perhaps Eugene or someone else can provide guidance on that. The NCAA is a private organization, and it has been my understanding that in general the First Amendment would not apply in this context.
So if FSU brings a claim, presumably it would be predicated on its contract with the NCAA. I would be interested in the insights of any readers or other Conspirators on this.
Update:
A Hoosier informs me it is properly Indiana University, not University of Indiana. I have corrected the post accordingly.
Update:
What's $286 Billion Among Friends?:
The Washington Post has a very good analysis of the politics of the new transportation bill: Three years ago, President Bush went to war against congressional pork. His official 2003 budget even featured a color photo of a wind-powered ice sled — an example of the pet projects and alleged boondoggles he said he would no longer tolerate.
Yesterday, Bush effectively signed a cease-fire — critics called it more like a surrender — in his war on pork. He signed into law a $286 billion transportation measure that contains a record 6,371 pet projects inserted by members of Congress from both parties. Six thousand, three hundred, and seventy one pet projects. Wow. My favorite part is the defense of the bill offered by White House spokesman Trent Duffy. In response to criticisms from conservative groups that the bill cost too much, Duffy replied that Bush pressured Congress to shave billions of dollars off the bill, and he said spending is "pretty modest" when spread out over five years. The transportation bill, at $57 billion a year, is a fraction of Medicare's $265 billion.
Besides, Duffy said, "the president has to work with the Congress." I'm sure that some amount of highway spending was needed, and I don't know enough about the topic to know what the "right" amount of spending was. It's easy to complain about pork in the abstract. Still, when $286 billion dollars in new spending is described as "pretty modest" because if you spread out the costs over five years the annual costs are less than Medicare, it's hard not to wonder what is going on.
Wednesday, August 10, 2005
Faculty Rankings of Empirical Legal Studies:
Tracey George of Vanderbilt has another article on rankings from the same symposium that Andy Morriss has been blogging on the past few days. Her paper is "An Emprical Study of Empirical Legal Scholarship: The Top Law Schools" and is available on SSRN. The paper uses a variety of measures to compile a rank the "top" law schools in terms of their commitment to and intellectual leadership in the field of Empirical Legal Studies. Table 6 of her article reports her summary overall ranking of an unweighted average of the criteria she uses to come up with the "Overall Ranking of All Law Schools in Study":
ELS Ranking Law School |
1-tie University of California, Berkeley |
1-tie George Mason University |
1-tie Northwestern University |
4-tie University of Pennsylvania |
4-tie University of Southern California |
6 Cornell |
7-tie University of Chicago |
7-tie Stanford University |
9-tie University of Michigan |
9-tie Yale University |
Job market influences on schools’ position:
One of the most striking results we found was that schools in strong legal job markets did better in terms than schools in weak legal job markets in raising their median LSAT scores. We used Am Law 200 firm growth (number of lawyers) as our measure of the legal job market because (1) we had data on it; (2) large firms are widely if not universally viewed as desirable by prospective law students.
The 3 metropolitan areas that grew the most in terms of Am Law 200 jobs between 1993 and 2004 were New York City (+9,920), Washington, D.C. (+4,916) and San Francisco (+2,937). Our regressions suggest that being in New York was worth about 1.65 median LSAT points to a school.
Interestingly, variables measuring general economic and population growth didn’t produce significant results.
We then counted up the number of Am Law 200 firms interviewing on various law school campuses in the NALP forms for 2004-2005 and did some looking at which schools did better at attracting these firms. Not surprisingly, law schools located in areas with lots of Am Law 200 firms had more Am Law 200 firms interviewing on campus, as did top 16 schools, tier 1 schools generally, and bigger schools.
In short, big firms will travel to interview students at the top schools, but interview at lower ranked schools only near their offices. This is not shocking, of course, but it is something law schools need to recognize if they intend to raise their rank / LSAT numbers. Investing in increasing the chances for students to interview at large firms – indeed, at all sorts of legal employers – is likely to be a good strategy. Coordinating off-campus programs in large law markets like NYC or investing in CSO activity in those markets are the kinds of things law schools outside the high growth MSAs need to consider.
Read the whole thing here.
A Curious Claim:
I received this in an email today from the campaign of Jerry Kilgore, who is running for VA Governor:
Senator George Allen routinely reminds us that a bumper sticker is worth $200 in free advertising or $300 if on a pick-up truck or S.U.V.
Why in the world would a bumper sticker on a "pick-up truck or S.U.V." be "worth" more in free advertising than say a mini-van or a sedan? Does it have something to do with attracting rural swing voters in Virginia to vote Republican? Or is it just some sort of joke that I don't get?
Breyer on Giving Foreign Courts "A Little Boost Sometimes":
In a talk yesterday at the American Bar Association annual meeting, Justice Stephen Breyer gave an intriguing reason why he thinks the U.S. Supreme Court should cite foreign law: It can give "a little boost" to the judiciaries of other countries, helping to advance the rule of law outside the United States. Here's what Breyer said, in the course of justifying the practice of citing foreign law: "To tell you the truth, in some of these countries, they're just trying to create these independent judicial systems to protect human rights, contracts. If we cite them sometimes — not as binding, I promise, not as binding --well, that gives them a little boost sometimes . . . It sort of gives them a leg up for the rule of law." This reminds me a bit of the remarks by Justice Stevens in May suggesting that the U.S. Supreme Court should cite foreign courts to make sure that the U.S. Supreme Court remains influential outside our borders. It also seems to be another piece of evidence supporting the "shout out" theory of citing foreign courts offered by Professor (and former Breyer clerk) Tim Wu in Slate last year. Your thoughts?
More rankings:
The idea of more rankings touched off a lot of comments to my last post, so I'd like to push the point a bit further before moving on to additional findings from the paper. (Everyone can read - and download - the whole paper here, and help Bill and me crack the top 10 downloaded papers on SSRN).
My point about specialty rankings was not that a series of such rankings would solve the U.S. News problem, but that there is a market opportunity for a wide range of entities to get into the rankings business there because U.S. News uses a very, very small sample (one faculty member at another school told me that she had discovered that under 50 people responded to one of the most recent specialty surveys) from surveys to rank specialty programs. A much better job could readily be done by any journal interested in exploring the details of programs, and the universe of law schools with serious specialty programs (i.e. more than a professor or two) in any given area is small enough that the ranking could include more detailed qualitative information on the programs.
There is also a lot of room for competitors to U.S. News - and law schools could do a lot to encourage that by stating publicly that they are willing to provide data for alternative attempts at rankings. Unfortunately the main voice of law schools thus far - the joint letter from lots of deans - mostly condemns rankings as inherently flawed, which does not suggest that there will be much cooperation forthcoming to potential competitors. If all a new ranking system had to go on was the ABA data, it would probably come down to simply reweighting the U.S. News system (already possible at Jeff Stake's The Ranking Game).
Of course, there has to be a limit - law schools spend an enormous amount of time filling out questionaires for the ABA, AALS, U.S. News, their universities, etc. (Don't even get me started on the data needed for reaccreditation.) When I was associate dean I had to help with those sometimes and they took a fair amount of time. But law schools (and the ABA) could do a lot to facilitate comparisons. So far, they've chosen not to do so.
Had DataMining Tools Identified Four of the 9/11 Hijackers?:
Yesterday's New York Times has a fascinating but rather vague report that a year before 9/11, a military intelligence unit had used datamining tools to identify Mohammed Atta and three other of the 9/11 hijackers as likely members of of an Al Qaeda cell. As Mickey Kaus notes, however, the Times story appears to significantly downplay the role of datamining tools in the identification of the cell. I'm not quite sure what to make of the story, but hopefully we'll know more details soon.
Copyright and Religion:
Copyright maven Bill Patry has posts about this interesting subject, here and here.
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