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Saturday, February 25, 2006

Proposed Restriction of Doctors' Speech Related to Guns:

The Virginian-Pilot reports:

A pediatrician who asks a child's parent about firearms in their home could lose his or her license or be disciplined under legislation being considered by a [Virginia state] Senate committee today.

The bill would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them....

The legislation is opposed by The Virginia Chapter of the American Academy of Pediatrics because it blocks a common practice by medical professionals to inquire about gun ownership and safety when they go over a safety checklist with parents during a child's regular checkups from birth to puberty....

As I've noted before, the constitutional status of professional-client speech is unsettled. It seems pretty clear that the government has some extra power to regulate such speech, but I doubt that this power is or should be unlimited.

And this restriction (which I regret to say is supported by the NRA) seems to me to be well outside the proper limits of the government's power here. The restriction isn't limited to speech that is misleading or dangerous to patients; perfectly accurate and reasonable advice about preventing gun injury is covered alongside exaggeration and hysteria. Nor is this a requirement that doctors say extra things that the government thinks patients ought to know (such speech compulsions are generally forbidden, but may be constitutional when imposed on professional-client speech); this limits the information that doctors can give patients, rather than adding to such information.

The NRA argues that doctors' advice about guns in "intrusive" and "unnecessary," but it seems to me that the government needs much more than such beliefs to suppress speech. Speech can't be banned just because the legislature believes it "unnecessary," and absent unusual circumstances the sensible response by patients outraged by "intrusive" statements is to switch to a doctor they like better (or perhaps to warn their new doctor that they don't want gun safety advice). Timothy Wheeler, at the Claremont's Institute "Local Liberty" blog, defends the law as aimed at preventing "boundary violations": "With very few exceptions, a doctor's probing of a patient about guns in the home is a politically motivated question. That makes it an ethical boundary violation, which is unprofessional conduct. Doctors are forbidden to misuse the trust of their patients to advance a political agenda such as gun control." There's no doubt that many medical organizations have taken political stands on gun control; the American Academy of Pediatrics, for instance, urges that handguns be banned. And it's certainly quite possible that some doctors' political prejudices lead them to give unsound advice, for instance exaggerating the risks to health of keeping firearms in the home, or ignoring the possible benefits (including to the owners' health) of keeping firearms in the home.

But "liberty," "local" or otherwise, includes the liberty to communicate views that are influenced by one's ideology, without the government's banning such speech on the theory that it is "unprofessional." And it likewise includes doctors' liberty to convey their professional views on the health threats that various behaviors — bicycling, playing sports, engaging in unsafe sex, storing guns in certain ways — pose.

I should note that the government has much more authority to control what its employees or contractors say (see, e.g., Rust v. Sullivan); but this law would apply to all doctors, not just those hired or funded by the government.

The bill passed in the Virginia House by 88-11, though it was apparently blocked in the Senate committee by a 6-9 vote. Thanks to Glenn Wright Bowen for the pointer.

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The Fourth Amendment in A Networked World: Jonathan Zittrain has posted a response at the Harvard Law Review Forum to my recent article on computer searches and seizures. I thought I would blog some thoughts about Zittrain's thoughtful essay, and the broader topic of computer search and seizure law.

  Zittrain's response, Searches and Seizures in A Networked World, argues that the topic and approach of my article has been "overtaken" by recent events. While my article concerns the retrieval of evidence from personal computers, Zittrain contends that the real action these days is in the network context. That's true for two reasons, Zittrain suggests. First, concerns about terrorism are now of primary importance in light of the Patriot Act, the expanded use of National Security Letters, and the NSA domestic surveillance program. Second, more and more information is being stored on networks. He then argues that principles I articulate in the context of personal computers may not provide enough Fourth Amendment protection as applied to the network context, especially in light of news such as the NSA domestic surveillance program.

  I very much appreciate Professor Zittrain's response, and wanted to offer two arguments in return. First, I agree with Professor Zittrain that network surveillance issues are critically important. Indeed, I wrote my article only after completing a series of articles on network surveillance law, including on the role of the Patriot Act (see here, here, here, and here). At the same time, the importance of network surveillance law — and its high profile in the news recently — shouldn't overshadow the continuing importance of the legal rules regulating retrieval of evidence from personal computers.

  Personal computer searches will maintain their critical importance in computer crime cases for two very practical reasons. First, no matter how much people store information remotely as a general matter, they tend to keep evidence of crime and digital contraband close to home. Second, it is quite difficult for the government to prove a case beyond a reasonable doubt based solely on evidence obtained from a network. You never know who had acccess to the network, or when, or whether the account was hacked or stolen. As a result, nearly every computer crime case ends with a retrieval and search of the suspect's personal computer(s). Finding evidence of the crime on the suspect's personal computer is damning evidence, quite persuasive to a jury. As a result, even if lots of the action happens at the network surveillance level, most investigations still end up with a personal computer search.

  Second, Professor Zittrain may be right that the approach I offer in my article may not provide a satisfactory solution to answer how the Fourth Amendment should apply to networks. But I don't think that is necessarily a flaw: Fourth Amendment rules are quite localized, and it's not clear that the same principles should apply to both contexts. More broadly, I think we need to recognize that the question of how the Fourth Amendment should apply to computer networks is remarkably difficult. Or at least it is difficult to me: I have been thinking about this question for years, and have only been able to bite off small bits of the problem so far. My first effort to write an article on how the Fourth Amendment should apply to computer networks turned into a piece on the Fourth Amendment and technological change (see here); my most recent effort has morphed into a draft about the nature of Fourth Amendment protection more generally. My uncertainty is such that when it looked like the Eighth Circuit might touch on when e-mails get Fourth Amendment protection, I wrote an amicus brief exploring the arguments on both sides without taking a position of my own.

  In the end, I think Professor Zittrain and I agree on the broad point: my article is only one small piece of a broader set of important questions and issues. I think my article covers a small but important set of questions reasonably well, but it's only the beginning of lots of work ahead.
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Correcting the Police Forbidden:

CNN reports:

Clay Palmer, a student at the University of Tennessee at Chattanooga, honked his car horn when he saw a policeman turn on blue flashers to pass through a red traffic light. The officer then turned the flashers off after moving through the intersection.

Palmer said officer Matthew Puglise then stopped his patrol car and issued him a ticket for honking his horn for no reason -- a violation of the city noise ordinance.

The charge was reduced to a warning Wednesday when he went before a judge who told him he acted wrongly.

"The horn blowing is not the real problem here, it's that you were trying to correct the police and they didn't need correcting," Judge Russell Bean said....

Seems to me the judge has it exactly backwards. Blowing one's horn without good reason is surely punishable -- it's s prohibited not because of the viewpoint it communicates, but because it creates unnecessary noise. And even if the police were wrong to use their flashers this way (far from clear, but irrelevant here), using one's horn to express frustration or disagreement, with the police or anyone else, is indeed unnecessary noise; the purpose of the horn is to prevent accidents, not admonish people.

But trying to correct the police ought not be punished, whether or not the judge thinks the police need correcting. If, for instance, the government does make a practice of punishing horn blowing when it is meant to express disagreement with ("correct") the police, but not when it's meant to express disagreement with other drivers, that would be an abuse of government power, and likely unconstitutional. By saying that the problem isn't the noncommunicative harm (needless noise) but the disrespectful communication (trying to correct the police), the judge is making a pretty serious mistake.

Thanks to reader David Alan Rassin for the pointer.

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Cathy Seipp on Critics of Criticism of Islam:

A very good piece (as usual).

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Northern Virginia Bubble Update:

This impressive graph (click for larger, much more readable version) of housing inventory growth in Northern Virginia is courtesy of the Bubblemeter blog. Let's see, a huge increase in supply; declining demand as short term interest rates get higher (reducing the ability of buyers to qualify under low short-term "teaser" rates) and speculators flee. I think elementary economics tells us what's going to happen next.

UPDATE: I'm not sure how they compile the data, but this site shows that inventory for sale in Northern Virginia has increased around 400% since last March 1. For example, 159 homes in Arlington and 800 homes in Fairfax for sale on March 1, 2005. On February 24, 2006, 673 homes for sale in Arlington, and 4,378 in Fairfax. MORE: But that's nothing compared to Phoenix, where inventory has risen approximately 700% in a year.

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Friday, February 24, 2006

A (Very) Strange But True ACLU Case:

Man, I wish I had come across this story while researching You Can't Say That! In fact, I'm amazed I didn't, but I only found out about it from a VC commenter on a recent post (Thanks!). It took me quite a while to confirm this really happened, because for some reason it got very little media publicity, but it did. Before I confirmed it, I couldn't believe such a case existed, I think it might be among the most dramatic examples of the abuse of antidiscrimination laws and the principles underlying them I've ever seen.

Here's the story: There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I've confirmed from media accounts. According to the commenter who first alerted me to this story, "the defendants' insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!"

The lawsuit was brought under California's Unruh Act, which provides that "all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever." The California courts have held that the protected classes delineated by the Act are not exclusive; the Act also protects arbitrary discrimination by a business establishment based on similar characteristics to the above. Apparently, the insurer thought that "political views" was sufficiently similar to "religion" that the courts would likely rule against the insured. (This was, after all, the Rose Bird Court, which issued a series of absurdly broad and illogical rulings under the Unruh Act; in one of those opinions (Isbister) Bird personally gratuitously insulted a little old lady who donated money to a Boys' Club as one of the "select few" who wish to be "insulated from the 20th century" because the Boys' Club didn't admit girls.)

There are several remarkable things about this story, which occurred in 1986. First, the ACLU of Southern California represented the Nazis, yet, at least by the late 1980s, this local ACLU branch was known as a vigorous proponent of hate speech regulations. How to square that circle, I don't know. Perhaps the organization had a sudden and dramatic leadership shift. Perhaps the local ACLU leaders saw this as "discrimination based on ideology in public accommodations" and somehow didn't notice it was also the suppression of hate speech. Perhaps they just had their heads up their behinds.

Second, why was the ACLU concerned about the rights of the Nazi patrons, but not the owners? Why didn't the owners have a right to send a message that they disapprove of Naziism?

Third, even accepting the absurd premises apparently underlying this lawsuit, that the Unruh Act somehow protects Nazis from discrimination in public accommodation, where was the discrimination here? The restaurant didn't refuse to serve the Nazis, it simply refused to serve them so long as they were turning the restaurant into a forum for promoting their Nazi views by wearing swastikas. A restaurant couldn't discriminate against Satanists, does that mean they are required to let the Satanists wear T-shirts showing Jesus being tortured by a gleeful Lucifer?

Fourth, under current hostile environment law, the restaurant could get in serious trouble for not ordering the Nazis to stop wearing the swastikas. Tolerating swastika-wearing patrons would be considering by some to be the creation of an "illegal hostile public environment" for Jews, Gypsies, and others.

If you're familiar with my views on such issues, you know that I don't think the restaurant owners can or should be forced to censor the Nazis' expression of their views (unless the owners censor all points of view except Naziism, which could then be seen as their way of getting around the law and excluding Jews), but I also don't think that the Nazis can or should have the right to impose their speech on the unwilling owners of the restaurant, who are acting not only on their own behalf, but as agents for their patrons.

Anyway, my jaw just dropped open when I read about this case, and it hasn't closed yet.

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Hang on Stevens: This song (mp3) is really pretty funny, courtesy of Air America. Thanks to Concurring Opinions for the link.
Total Information Awareness Lives: The National Journal has the scoop.
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The Decline of an Olympic Sport Among U.S. Colleges:

The S.F. Chronicle reports:

USF, its men's and women's rifle teams relegated to using air guns in Memorial Gym, has dropped the sport....

USF was one of 33 schools still fielding NCAA rifle teams.... [The USF Athletic Director Bill] Hogan also cited the difficulty of finding opponents with only six schools west of the Mississippi River with teams. No other West Coast Conference or Pac-10 schools have rifle teams....

Hogan said it was impractical to field a team because of a scarcity of quality rifle ranges in the Bay Area. He said the school had been trying -- unsuccessfully -- for the past seven years to raise the $1.5 million he estimated it would cost to build its own competitive-level range....

Thanks to reader Peter Buxtun for the pointer.

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Are Pell Grants Unconstitutional? What About Tax Exemptions for Nonprofit Advocacy Groups?

Those who argue that the Establishment Clause mandates exclusion of religious institutions from generally available funding programs sometimes argue that such exclusion is needed to protect the religious institutions themselves. Here's an excerpt from Justice Souter's dissent in Zelman v. Simmons-Harris, the 2002 case that upheld the constitutionality of school choice programs that include religious schools:

[I]n the 21st century, the risk [to religion from participation in aid programs] is one of "corrosive secularism" to religious schools, and the specific threat is to the primacy of the schools' mission to educate the children of the faithful according to the unaltered precepts of their faith. Even "[t]he favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation."

The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious schools may not "discriminate on the basis of ... religion," which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as non-believers....

When government aid goes up, so does reliance on it; the only thing likely to go down is independence.... A day will come when religious schools will learn what political leverage can do, just as Ohio's politicians are now getting a lesson in the leverage exercised by religion.

This is a nontrivial policy concern, it seems to me, though on balance I think the value of school choice programs outweighs this risk. But if it's made into a constitutional argument, then I don't see why it wouldn't equally ban the participation of nonreligious speakers in general aid programs. If we take this argument really seriously, then the government should be forbidden from letting students use government-provided grants (Pell grants, GI Bill grants, and the like) in private schools — after all, these grants may come with strings that diminish the "independence" of universities, as historically has indeed happened.

Likewise, the government should be forbidden from letting nonprofit advocacy groups (such as the ACLU, People for the American Way, NARAL, and the like) get tax exemptions, either direct exemptions from the income tax and property taxes, or deductibility for contributions to those groups. After all, such tax exemptions are themselves government subsidies that may come with strings that diminish the "independence" of advocacy groups, as historically has also happened. (For examples, consider antidiscrimination conditions attached both to federal education grants and the tax exemption, which are of course directly parallel to the antidiscrimination conditions attached to school choice funds that Justice Souter complains about; consider also the rule that groups that get tax-exempt contributions may not themselves engage in electioneering or lobbying, but instead have to set up special affiliates for those purposes.)

Of course, these groups are secular groups, and we shouldn't worry as much about their religious freedom. But they are First-Amendment-protected groups, so we should presumably worry about their freedom of speech. Government actions that undermine the independence of religious institutions are bad; but so are government actions that undermine the independence of advocacy groups and universities. (It's true that the Establishment Clause applies only to establishment of religion; but Justice Souter's argument here is focused specifically on harm to the religions' independent practice of religion, which is directly paralleled by the constitutional protection of speakers' independent practice of speech. And on its face the Establishment Clause speaks simply of not establishing religion, or to be precise not enacting laws respecting establishment of religion, not of declining to interfere with the independence of religion. The constitutional constraints on the interference with religious institutions, it seems to me, must closely parallel constitutional constraints on the interference with speaking institutions.)

We should indeed worry about the government using subsidies as a tool for interfering with the independence of universities, advocacy groups, and other speakers. But most liberals (the group most likely to object to the inclusion of religious speakers in generally available funding programs) nonetheless support many such subsidies. Instead of saying that the subsidies are unconstitutional or even on balance unwise, they try to fight undue interference with speakers' independence either (1) through the political process, or (2) through the development of constitutional rules that limit the strings that may be placed on the subsidies. Even libertarians, in my experience, may criticize such subsidies to speakers but don't think that the subsidies are unconstitutional, despite the threat to independence that they may pose.

Yet when the subsidies flow to religious institutions (as part of evenhanded programs that don't discriminate based on religion), many people argue that protecting the independence of religious institutions means that the Constitution requires discriminatory exclusion of those institutions from funding programs. Why would this be so, if protecting the independence of speakers doesn't mean that the Constitution requires exclusion of speakers from funding programs?

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Interesting Comment from an Earlier Post on the ABA's Diversity Rules:

Prof. Paul McKaskle of University of San Francisco comments:

As to the main issue raised in the post and by most commentators--the issue of affirmative action to increase the number of African-American attorneys, as I noted at the outset, the real problem is, in terms of law schools as a whole, there are simply not enough “qualified” applicants (whatever “qualified” may mean). Top tier law schools can admit whatever percentage of African-American students that they feel is appropriate and most will at least graduate and pass the bar. Second tier law schools will have more problems (given that African-American students who most closely resemble the qualifications of their white students have been accepted at top tier schools) and probably the African-Americans actually admitted will do less well in law school and on the bar. Further down the pecking order the likelihood of admitting a “sufficient” number of African-Americans to satisfy “diversity” or whatever goal a school (or the ABA) deems appropriate who will be successful becomes even less likely. So, the goal of increasing the number of African-American lawyers will not be met. All that will have happened is that the “better” schools will have successful African-American students (though a disproportionate number of them will be at the bottom of the class) and lesser schools, no matter how many African-Americans are admitted, will have a poor success rate in graduating them and getting them past the bar exam.

The main measure used by law schools as to whether law students will be successful is the LSAT. It is a rather imperfect measure to say the least, but no better measure now exists except how one does in the first year of law school. At my law school, the co-efficient between LSAT and ultimate passing of the bar is .30. The co-efficient between first year law grades and passing the bar is .90. The LSAT really doesn’t tell much about a particular individual, rather it tells much about large numbers of individuals. Of the hundreds of individuals who have, for example, a 170 LSAT, the only useful information for a law school is that some fairly high percentage of them (perhaps 90%) will do well in law school. But some much smaller percentage of the 170 LSAT scorers will do poorly and may even flunk out. Of the hundreds of individuals who have a 140 LSAT, a very small percentage will do well in law school (perhaps only 5 or 10%) and most will do poorly and are likely flunk out. When a law school fills a first year class, it tries to maximize the number who will do well and minimize the number who do poorly. The obvious answer, admit as many high LSAT scorers as possible. (Most law schools do take other factors in consideration, mostly undergraduate grades. The correlation between ugpa and law school success is much weaker than for LSAT, but the two in combination is slightly more predictive than either one alone. But, LSAT is the primary determinant in admissions at most law schools–at least those law schools which cannot fill the entire entering class with students with 170 or better LSATs such as is likely at Yale.) I teach at a law school with “wobbles” between second and third tier status on the USNews listings (though our median and quartile LSATs are well up into the second tier) and if we wanted to double the number of African-American students actually enrolled we would have to accept students in the low 140s are even high 130s LSATs to reach this goal. Based on past statistics, the likelihood that very many of these students would graduate and become successful lawyers is very small.

One commentator suggests that even a small increase in African-American lawyers is better than none. Perhaps so, but at what cost. Most law schools cost in the neighborhood of $30,000 a year, and while there are some scholarships (especially at top tier law schools) the “additional” African-Americans admitted at lower tier schools are likely to have to finance their entire education. There is also income lost by postponing alternative employment. Thus, most of the cost of African-American students who fail is going to be borne by segments of the African-American community. If ninety percent of the African-American admittees admitted to top tier or near top tier law schools succeed, very likely that, overall, it is good for the African-American community as a whole (especially since at top tier law schools there is likely to be generous financial aid). But if only half succeed at a lower tier law school, is this a worthwhile bargain for the African-American community? (I have at least one colleague who thinks so.) But I think it is far more questionable as to the worth to the African-American community if only 20% or 10% succeed. If one out of five succeeds, the resources of the African-American community has had to invest close to a half-million dollars for each successful lawyer, and that doesn’t count the psychological cost to those who failed. That is a moral question upon which I think it would be interesting to hear the opinion of the ABA.

I'm not convinced that he quite has all the numbers right, but I do think his comment reflects the growing discomfort by many professors at law schools outside the top tier, including professors who generally favor affirmative action, that "diversity" requirements that fail to account for the relevant applicant pool are forcing schools to admit students whom the schools know are statistically unlikely to ever become attorneys. Professor McKaskle makes additional interesting, related points. Read the whole thing.

Fatwa Against Kurdish Writer:

Mark Thomas writes in the New Statesman:

Kurdish writer Marywan Halabjaye ... is in hiding with his pregnant wife and three children; he has been sentenced to be beheaded by the fatwa committee of Halabja. His crime was writing a book entitled Sex, Sharia and Women in the History of Islam, which includes a textual analysis of the Koran and how it is used to oppress women.

"I wanted to prove how oppressed women are in Islam and that they have no rights actually," says Marywan, "although this is really a traditional topic among progressives." In fact, he is well known among Iraqi Kurds and has written on religion before with a minimum of fuss.

So his book was published last November, after permission had been sought from the Kurdish bureaucracy. The print run was for 1,000 copies, and the work proved popular enough for a second edition to be issued within a month. "The Islamists were not happy with this," says Marywan, "because they always want to hide the oppression of women within Islam."

Islamic scholars from Halabja made an official complaint about Marywan to President Talabani. Letters followed to the Kurdish newspapers, calling for him to be punished. Throughout December the verbal attacks continued from the mosques throughout Halabja, Irbil and Kirkuk. Then three of Kurdistan's Islamic parties, the United Islamic Party, the Islamic Kurdish League and the Islamic Movement of Kurdistan, joined the debate. By which I mean they bellowed for him to be punished....

[T]he secular Kurdish politicians have allowed this state of affairs to flourish. "The Kurdish authorities have not provided any protection from threats and fatwas," says Marywan....

UPDATE: Originally mislaid the name of the person who called this to my attention, but now I have it -- many thanks to Charles Chapman (Is-Ought Problem) for pointing this story out to me.

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Debka Fingers Zarqawi and Al Qaeda in Bombing of Iraqi Shrine.--

Debka, the Israeli website run by former Time Magazine reporters, is reporting (i.e., speculating) that the bombing of the holy Shiite shrine in Samarra was committed by the leader of Al Qaeda in Iraq, Abu Musab al Zarqawi. (Unfortunately, the story on Debka has no permalink (scroll down to "Sectarian violence left 130 dead across Iraq amid fury over Samarra shrine destruction"), and the site has particularly lengthy and annoying--but seemingly harmless--ads.)

DEBKAfile’s sources: The bombing was carried out by a small squad trained by Abu Musab al Zarqawi especially for the operation. Four-to-six men entered the Askariya mosque Tuesday night and placed explosive charges around the interior of the gold dome so as to bring it crashing down on the sacred tombs below.

Samarra police have made 10 arrests, among them foreigners, as would be typical of al Qaeda.

Iraqi leaders and US officials realize that, unless the furious Shiite-Sunni clashes which erupted Wednesday are quelled, Iraq will quickly descend into sectarian warfare with US forces stranded between the warring camps. . . .

Such a conflict will resonate across the region. Shortly after the disaster in Samarra, Iran’s spiritual leader ayatollah Ali Khamenei in Tehran, in contrast to the US president’s effort to calm the flames, accused “US forces and Israeli intelligence” of responsibility.

The Islamic republic is quite willing to exploit the destruction of a Shiite shrine to fuel the fire of sectarian conflict, in the hope of expediting the US forces’ exit from Iraq. The thousands of Iranian agents operating clandestinely in Iraq can be expected to aggravate civil strife in Iraq by agitation and leading attacks on Sunnis.

Iranian leaders are proving once again how willing they are to sacrifice fellow-Shiites to terror for the sake of the strategic interests which they share with al Qaeda.

Because Debka's sources are unnamed, I would consider their claim to be more in the realm of informed speculation than journalistic fact. In other words, take this with a grain of salt--or perhaps two or three.

USC Trojans:

So why does USC name its team after losers? And not only that, but why did the Trojans lose? Because they were dumb and gullible. What kind of mascot is that?

UPDATE: USC lawprof Howard Gillman points to this explanation (emphasis added):

Originally, the teams of the University of Southern California were referred to as Methodists or Wesleyans, names not favored by university officials. The director of athletics, Warren Bovard, son of university president Dr. George Bovard, asked Owen Bird, a sportswriter for the LA Times, to give the university a new nickname. Although we now are proud of a winning tradition, the USC family was not always successful during the early years. In fact, we were named "Trojans" because we were great losers. Bird dubbed the USC team "Trojans" instead of "Methodists" because he compared our players in 1912 to noble Trojan warriors. His reasons for using the term were that "At this time, the athletes and coaches of the university were under terrific handicaps. They were facing teams that were bigger and better-equipped, yet they had splendid fighting spirit. The name 'Trojans' fitted them. ... I came out with an article prior to a showdown between USC and Stanford in which I called attention the fighting spirit of USC athletes and named them 'Trojan' all the time, and it stuck. ... The term 'Trojan' as applied to USC means to me that no matter what the situation, what the odds or what the conditions, the completion must be carried on to the end and those who strive must give all the have and never be weary in doing so." ...
So they admit it! But I agree that the USC Methodists would be an even odder name for a football team.

FURTHER UPDATE: The Llama Butchers (?) comments: "Two! Four! Six! Eight! Who Got Tricked And Opened Their Gate?"

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London Mayor Suspended for Being Rude:

The Evening Standard Web site reports:

London Mayor Ken ... was suspended from duty for four weeks from March 1 after being found guilty of bringing his office into disrepute.

The three-man Adjudication Panel for England unanimously ruled that Mr Livingstone had been "unnecessarily insensitive and offensive" to Evening Standard reporter Oliver Finegold in February last year.

David Laverick, chairman of the disciplinary panel sitting in central London, said: "His treatment of the journalist was unnecessarily insensitive and offensive. He persisted with a line of comment likening the journalist's job to a concentration camp guard, despite being told that the journalist was Jewish and found it offensive to be asked if he was a German war criminal." ...

Thanks to reader Jon Shapiro for the pointer.

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Dershowitz on Summers:

Alan Dershowitz weighs in on the Summers resignation in the Boston Globe and it is safe to say he isn't too happy with his colleagues in the Faculty of Arts and Sciences (opening and closing paragraphs excerpted):

Coup against Summers a dubious victory for the politically correct

A PLURALITY of one faculty has brought about an academic coup d'etat against not only Harvard University president Lawrence Summers but also against the majority of students, faculty, and alumni. The Faculty of Arts and Sciences, which forced Summers's resignation by voting a lack of confidence in him last March and threatening to do so again on Feb. 28, is only one component of Harvard University and is hardly representative of widespread attitudes on the campus toward Summers. The graduate faculties, the students, and the alumni generally supported Summers for his many accomplishments. The Faculty of Arts and Sciences includes, in general, some of the most radical, hard-left elements within Harvard's diverse constituencies. And let there be no mistake about the origin of Summers's problem with that particular faculty: It started as a hard left-center conflict. Summers committed the cardinal sin against the academic hard left: He expressed politically incorrect views regarding gender, race, religion, sexual preference, and the military.

***

It was arrogant in the extreme for a plurality of a single faculty to purport to speak for the entire university, especially when that plurality is out of synch with the mainstream of Harvard. It was dangerous for the corporation to listen primarily to that faculty, without widely consulting other professors, students, and alumni who supported Summers. Now that this plurality of one faculty has succeeded in ousting the president, the most radical elements of Harvard will be emboldened to seek to mold all of Harvard in its image. If they succeed, Harvard will become a less diverse and less interesting institution of learning governed by political-correctness cops of the hard left. This is what happened in many European universities after the violent student protests of the late 1960s. It should not be allowed to happen at Harvard in the wake of the coup d'etat engineered by some in the Faculty of Arts and Sciences.

Update:

And this from Harvard literature professor Ruth R. Wisse:

The student newspaper, the Harvard Crimson, has been outspoken in its criticism of the faculty that demanded the president's ouster. "No Confidence in 'No Confidence' " ran the headline of an editorial demonstrating the spuriousness of the charges being brought against the president, and reminding faculty to stay focused on the educational process that ought to be its main concern.

***

But student response to the ouster suggests another long-term outcome. Although the activists of yesteryear may have found a temporary stronghold in the universities, a new generation of students has had its fill of radicalism. Sobered by the heavy financial burdens most of their families have to bear for their schooling, they want an education solid enough to warrant the investment. Chastened by the fall-out of the sexual revolution and the breakdown of the family, they are wary of human experiments that destabilize society even further. Alert to the war that is being waged against America, they feel responsible for its defense even when they may not agree with the policies of the current administration. If the students I have come to know at Harvard are at all representative, a new moral seriousness prevails on campus, one that has yet to affect the faculty members because it does not yet know how to marshal its powers.

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Situation Grim With Religious Violence in Iraq.--

In his Thursday post, the Iraqi blogger, Iraq the Model, reports tense and worrisome developments and news reports. According to unconfirmed reports by factions in Iraq, more than 120 mosques have been attacked, burned, or blown up.

Spokesmen of the Islamic Party and Muslim Scholars claim more than 120 mosques have been blown up, set ablaze or came under small arms and RPG fire including the Um al-Qura mosque which is the HQ of the Association of Muslim Scholars which came under several drive-by shootings.

Radio Sawa reported a short while ago that the central morgue in Baghdad received some 80 bodies of people who were killed with gun shots since Wednesday afternoon.

In our neighborhood the Sadr militias seized the local mosque and broadcast Shia religious mourning songs from the mosques loudspeakers. In several other cases, worshippers were turned away by "gunmen in black" who surrounded the closed mosques. Other mosques are encircled by razor-wire to stop anyone from approaching them.

The sense in the streets and the statements given by some Shia clerics suggest that retaliation attacks are organized and under control and are focusing on mosques frequented by Salafi and Wahabi groups and not those of ordinary Sunnis.

Iraq the Model's late Wednesday afternoon post was, if anything, even more harrowing:

-President Talabani promises to make rebuilding the shrine his personal responsibility and to donate the required money from his own.

-Head of the Sunni endowment sheikh Ahmed al-Samarra'I announces that he will allocate 2 billion dinars (~1.4 million $) for the rebuilding of the shrine from the treasury of the Sunni endowment.

-Huge demonstrations in many of Iraq's provinces including Samarra and Mosul where thousands of people condemned the attack.

-The top 4 Shia Ayatollahs hold a meeting at Sistani's home to discuss the situation.

-The Association of Muslim scholars and the Islamic Party condemn the "criminal act".

-Retaliatory attacks on reportedly 29 Sunni mosques and the Accord Front warns from the consequences of such violent reactions.

-Jafari in a press conference calls for national unity and the leaders of the UIA hold a meeting. A press release is expected to come soon.

-The Iraqi TV opened the phone lines to receive the reactions of the audience to the attack and hosts Sunni clerics and politicians in an attempt to relieve the tension.

-Baghdad is in undeclared emergency situation, shops closed and streets nearly empty.

-Tight security around the shrine of Abu Haneefa in Aazamiya district of Baghdad, this is considered the top shrine/mosque for Sunni Muslims in Iraq.

-Masked gunmen attack Shia protestors in at least one neighborhood in western Baghdad and armed clashes in Ghazaliya and Hay al-A'amil.

One Pakistani cleric has said the the same forces who published the cartoons are behind the original bombing (tip to Tim Blair):

Allama Syed Sajid Ali Naqvi, said that the explosion in the shrine was carried out by the same people who supported the derogatory cartoons published in European newspapers.

"The strike is a continuation of the blasphemy on the holy family members of the Prophet (Peace Be Upon Him) and a ploy to divert the attention of the Muslim world from the imperialist forces’ diabolical designs against Islam."

This situation is bad enough, but if the attempts to blame the U.S. or the West succeed, things could get even worse.

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Recommendations for PDA-enabled blogs?

As some of you know, I archive most of my Volokh.com postings on my own website, on a blog I call "Kopel's Corner." There's often a lag time of several days or more between when I write for VC and when I get around to copying the item to Kopel's Corner. I also maintain a PDA-friendly version of the KC weblog. I would like to revise the KC PDA weblog's blogroll, so that it includes only PDA-enabled weblogs. If you have suggestions for good weblogs -- particularly ones which focus on politics, policy, law, or religion -- please supply your recommendations in the comments section. Please feel free also to recommend PDA-enabled websites, even if they're not blogs. From my Treo 650, I'm a frequent reader of Instapundit to Go and the PDA version of Powerline, but I would like to learn about more high-quality PDA sites.

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Thursday, February 23, 2006

Journalists Facing Prosecution for Printing Cartoons:

It turns out that the five countries alluded to in the New York Times story on the subject were Jordan and Yemen (which the Times named), and Syria, Algeria, and Indonesia, which for some reason the Times story didn't name. In more recent news, it turns out that India has also arrested a journalist for printing the cartoon. According to the story,

Alok Tomar, editor of Shabdarth, was arrested Wednesday after the government warned the Indian media not to publish anything that hurts the religious sentiments of any community.

I'm still not sure why the Times said there were arrests in five countries, but mentioned only two; I assume it was an editing error. But in any event, this is my attempt to fill that gap.

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Online Symposium on Anticipatory Warrants: The NYU Journal of Law & Liberty is hosting an online symposium tomorrow about anticipatory warrants and the Fourth Amendment, a hot topic these days in light of the pending U.S. Supreme Court case United States v. Grubbs. Participants in the symposium include James Adams, Brooks Holland, Andrew Leipold, Chris Slobogin, and myself.

  The Journal has just posted our introductory comments. Tomorrow, we will be blogging responses and additional comments throughout the day.

  Here is my introductory comment:
  One of the most specific commands in the Bill of Rights is the Fourth Amendment’s prohibition against issuing warrants without probable cause: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
  Over two hundred years after the Fourth Amendment was enacted, this prohibition still means what it says. Before a judge can issue a warrant, the warrant must be based on probable cause; must be supported by oath or affirmation; and must contain a particular description of the place to be searched and person or things to be seized.
  Anticipatory warrants are warrants that are issued when probable cause is anticipated but does not yet exist. The idea is that some future event may happen, and when it happens, probable cause likely will then exist. (I say "likely" because the magistrate judge never knows what else will happen in the future just before the event occurs. He will normally assume that nothing else of importance to the case happens before the future event occurs, but of course cannot know that with certainty.) The officers executing the warrant can wait for the event to happen, and then execute the warrant. If all goes as planned, probable cause will exist when the warrant is executed, even if it didn’t exist when the warrant was issued.
  If we approach anticipatory warrants from the standpoint of normative policymaking, there are considerable arguments for and against anticipatory warrants. But for my introductory comment, I want to focus our attention on the Constitutional text. Am I missing something, or does the text of the Fourth Amendment answer this question for us? The text says that no warrants shall issue, but upon probable cause. In this context, it seems to me that "upon" means "following the establishment of" and "issue" means "signed by the judge." If that’s right, doesn’t the plain text of the Fourth Amendment prohibit anticipatory warrants?
  More tomorrow over at the NYU Journal of Law & Liberty.
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Talking About the NSA Surveillance Program: Speaking of lecture tours, Chicago-based readers might want to know that I will be discussing the NSA domestic surveillance program at two law schools on Monday. I'll be speaking at 12:15pm at the University of Chicago, and at 4 pm at Northwestern. The Northwestern event will be followed by commentary from Professor Ron Allen. Both events are open to the public, and are being hosted by student chapters of the Federalist Society.
Speak in the Heart of Texas: At 11:30am today, I will be speaking on "Scalia's Infidelity: A Critique of Faint-Hearted Originalism" at the University of Texas School of Law.

Tomorrow, I will be speaking on a panel at the International Contract Law Conference being held at Texas Wesleyan in Fort Worth. The panel is on "Theory and Anti-Theory: A Discussion," and will focus on the work of the late, great Contracts scholar E. Alan Farnsworth.

Say "Hi" if you read the VC.

Wednesday, February 22, 2006

The Mohammed Cartoon Controversy and Trends in the U.S.:

In the wake of the Mohammed cartoon controversy, and the often craven reaction in Europe and the U.S., I thought the concluding paragraphs from my You Can't Say That! have special resonance:

One price of living in a free society is having to tolerate those who intentionally or unintentionally offend others. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as "discrimination." Yet the more the American legal system offers people remedies for offense, the more they are likely to feel offended. This is true for two reasons. First, as economists point out, when you subsidize something, you get more of it. Therefore, if the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Second, economists have also noted the psychological endowment effect, which, in effect, means that people tend to consider something they own to be more valuable than it would be if they did not own it. Similarly, once people are endowed with a right, they tend to overvalue it and react passionately when it is interfered with.

Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, DC city official was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is actually an innocent synonym of Scandinavian origin for "miserly." It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine. Neither should it be surprising that legislatures are increasingly succumbing to the temptation to expand the laws to protect from discrimination every group with a grievance, including the vertically challenged (short people, protected in San Francisco and Michigan), the body-pierced (among those protected in various jurisdictions, including Washington, DC, that ban discrimination based on personal appearance), recovering drug addicts (protected by the federal Americans with Disabilities Act and local equivalents), and the Hell's Angels (protected, along with other motorcycle gang members, in Minnesota).

Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate. A society that undercuts civil liberties in pursuit of the "equality" offered by a statutory right to be free from all slights, protected by draconian antidiscrimination laws, will ultimately end up empty-handed with neither equality nor civil liberties to show for its efforts. The violation of civil liberties required to achieve this kind of equality will diminish constitutional restraints on the government, while the additional power garnered by the government, introduced for noble reasons, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, when even presidential candidates swear that they feel the public’s pain, asking Americans to display a measure of fortitude in the face of offense and discrimination is asking for a lot. But in the end, it is a small price to pay for preserving civil liberties.

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Misusing Jesus for Political Purposes:

The Presbyterian Church (USA) is part of a large coalition of religious activists who are opposing the immigration reform law which the U.S. House of Representatives passed last year (and which still awaits Senate action). PCUSA's Washington office director Elenora Giddings-Ivory recently defended the church's lobbying position by stating: "Joseph and Mary had to flee persecution. Jesus was not born in his home community."

The statement is a gross misuse of the Bible, in part because the passages point to precisely the opposite policy result favored by Giddings and the PCUSA.

Joseph and Mary did indeed have to flee persecution; a few weeks after Jesus was born, they fled to Egypt because they learned that Israel's King Herod was planning to murder Jesus. Under current U.S. immigration law, the Joseph/Mary/Jesus family would have been entitled to asylum in the United States because they would have been able to prove that they could not return to their home country "because of persecution or a well-founded fear of persecution on account of race, religion,nationality, membership in a particular social group, or political opinion." 8 U.S.C.§ 1101(a)(42)(A). (U.S. immigration officers and the reviewing court might not have credited Joseph's fear of persecution, which was based on a dream. But hypothetically, the family could have called the Magi as witnesses, who could attest to Herod's obsession with Jesus, and called other witnesses who could have testified about the Massacre of the Innocents that Herod had perpetrated in Israel.)

Accordingly, the Bible story of the Flight into Egypt could be usefully deployed in arguing against U.S. immigration law changes which would restrict entry by genuine refugees. The story could likewise be used to argue in favor of giving refugee status to Chinese families who are fleeing from the Chinese dictatorship's forced abortion policies.

However, PCUSA opposition to the House immigration bill is not based on refugee issues, but rather on the bill's attempt to stem the massive illegal immigration into the United States, principally from Mexico, for economic reasons. Thus, Giddings' accurate statement that Mary and Joseph had to flee persecution is irrelevant. And her other statement disproves her case.

It is true, as she says, that "Jesus was not born in his home community." His parents were living in Gallilee, but they were traveling to Bethlehem when Jesus was born. Why were they traveling? Not so that Joseph could live someplace illegally as an "undocumented worker," but for the opposite reason. They were going to Bethlehem to comply with the Empire-wide tax and census decree issued by Augustus Caesar. Joseph, being from the House of David, had to go to David's city because "everyone went to his own town to register."

Many historians find it unlikely that there really was a universal tax/census around the time of Jesus's birth, and even more unlikely that a Roman tax would have required people to travel to ancestral towns for registration. But for purposes of argument, I'm accepting Giddings' implicit claim that the story about Jesus being born away from his home community is true.

In any case, one of the symbolic points made by the story is that Joseph and his very pregnant spouse went far out the way (literally) to comply with a government tax and census law. Some scholars suggest that one original purpose of the passage, when it was written sometime around the middle or latter part of the first century, was to show the Roman authorities that Christians were not lawless rebels, but in fact were extremely law-abiding and submissive to government authority (as long as the authority did not interfere with Christian religious practices). Whatever you want to say about Joseph the carpenter, you have to admit that he did everything possible to make sure that he was not an "undocumented worker."

There are many interesting pro and con arguments based on the Judeo-Christian tradition, and on other religious traditions, which can be applied to the immigration reform debate. But there are some Bible-based arguments which are obviously nonsensical and self-contradictory; you can't use the Sermon on the Mount to argue that personal revenge is a virtue, or David & Goliath to argue that slings ought to be outlawed, or Noah's Ark to claim the emergency preparedness is sinful. Likewise, it is preposterous to invoke the story of the Gallilean baby's birth in Bethlehem to assert that it is immoral to enforce laws requiring people to pay taxes and declare their lawful identity.

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United Arab Emirates and Osama bin Laden

At the March 23, 2004, hearings of the September 11 Commission, the Commission's executive director, Dr. Philip Zelikow, presented a staff statement which included the following:

The Desert Camp, February 1999. During the winter of 1998-99, intelligence reported that Bin Ladin frequently visited a camp in the desert, adjacent to a larger hunting camp in Helmand Province of Afghanistan, used by visitors from a Gulf state. Public sources have stated that these visitors were from the United Arab Emirates. At the beginning of February, Bin Ladin was reportedly located there, and apparently remained for more than a week. This was not in an urban area, so the risk of collateral damage was minimal. Intelligence provided a detailed description of the camps. National technical intelligence confirmed the description of the larger camp, and showed the nearby presence of an official aircraft of the UAE. The CIA received reports that Bin Ladin regularly went from his adjacent camp to the larger camp where he visited with Emiratis. The location of this larger camp was confirmed by February 9, but the location of Bin Ladin's quarters could not be pinned down so precisely.

Preparations were made for a possible strike, against the larger camp, perhaps to target Bin Ladin during one of his visits. No strike was launched.

According to CIA officials, policymakers were concerned about the danger that a strike might kill an Emirati prince or other senior officials who might be with Bin Ladin or close by. The lead CIA official in the field felt the intelligence reporting in this case was very reliable. The UBL unit chief at the time agrees. The field official believes today that this was a lost opportunity to kill Bin Ladin before 9/11.

Clarke told us the strike was called off because the intelligence was dubious, and it seemed to him as if the CIA was presenting an option to attack America's best counterterrorism ally in the Gulf. Documentary evidence at the time shows that on February 10th Clarke detailed to Deputy National Security Advisor Donald Kerrick the intelligence placing UBL in the camp, informed him that DOD might be in a position to fire the next morning, and added that General Shelton was looking at other options that might be ready the following week. Clarke had just returned from a visit to the UAE, working on counterterrorism cooperation and following up on a May 1998 UAE agreement to buy F-16 aircraft from the United States.

On February 10th, Clarke reported that a top UAE official had vehemently denied that high-level UAE officials were in Afghanistan. Evidence subsequently confirmed that high-level UAE officials had been there.

The indispensible Middle East Media Research Institute reported in a two-part series in 2003 on the Zayed International Centre for Coordination and Follow-up, a UAE think tank whose patron was the second son of the President of the UAE, and which was a source of vile anti-American, pro-Hitler, anti-Jewish propaganda. The introduction to the MEMRI report explains that UAE officials privately acknowledged that the government-funded Zayed Center was a problem, but reining it in was difficult. The think tank was later closed.

Although many of the leaders of the UAE dictatorship may indeed support the U.S. in the war on terror, it seems clear that, at the least, there is a notable portion of the UAE, including some powerful and/or influential people, who do not. As James Lileks points out (in an article which Eugene linked to earlier today), the risks of a bin Laden sympathizer from the UAE supplying critical US port information to terrorists seems unacceptably high.

One of the talking points raised by defenders of the Bush decision on Dubai Ports has been to point out that many ports in the Los Angeles area are run by the Chinese. During the 2d Clinton term, Congress blocked Administration efforts to give the former Long Beach Naval Station to COSCO (Chinese Ocean Shipping Company), a front for the Chinese military. The COSCO issue garned almost no attention in the traditional media, but public opposition grew overwhelming as a result of New Media attention to the issue.

But, obviously, the temporary victory at Long Beach did not prevent the Chinese dictatorship from taking control of many California ports.

Congressional opposition to the Dubai Ports deal currently appears to far exceed the margin necessary to over-ride a presidential veto. Congress could improve American national security, and also scuttle claims that opposition to Dubai Ports is based on prejudice against Arabs or Muslims, by using the Dubai Ports prevention bill to also provide for the termination of Chinese control of American ports. As a general rule, it would make sense to prohibit operation of any U.S. port, or other critical national infrastructure, by a company which is not from a democratic nation or from a nation with a formal alliance requiring the nation to defend the U.S. if the U.S. is attacked.

More narrowly, Congress could forbid U.S. port operation by companies (including government-controlled companies) of any nation which: 1. Has nuclear missiles aimed at the United States, or 2. Has provided nuclear technology to any nation on the U.S. State Department list of state sponsors of terrorism.

Related Posts (on one page):

  1. United Arab Emirates and Osama bin Laden
  2. Lileks on the Port Controversy:
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Addled "Diversity" Logic:

Courtesy of John Rosenberg, here's an article praising the ABA's new "diversity" standard on the theory that it will require California law schools to create more African American attorneys. Putting aside the issue of Proposition 209, to the extent that as a result of the new standards California law schools bend their admissions standards in some legal or illegal way to admit more African American matriculants, it's not clear that this will have much of an effect on the number of African American lawyers, or that it would worth the cost if it did. According to the very same article, only 33% of first-time African American bar exam takers in California passed, compared to 69% of whites. Some implications that seems rather obvious to me: (1) California (and the ABA) can most easily increase the number of African American attorneys by either (a) making the bar exam easier; (b) abolishing it altogether; or (c) finding some way to increase the passage rate for African Americans; and (2) Given that 2/3 of African American bar exam takers are already failing the bar exam on their first try (and that does not account for students who failed out of law school and never took the bar), and that many of those who fail the first time will never pass, where is the logic in encouraging law schools to admit even more African American students, unless there is some evidence that these students will be stronger than recent crops of students?

I'd be very happy to see the mandatory bar exam replaced with a voluntary exam (or many voluntary exams, let the free market rule--see posts by Ted Frank and Larry Ribstein for similar thoughts). Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education. Either one of these solutions would likely increase the number of minority attorneys in the U.S. far more than ABA racial prefernce requirements for existing law schools, and with far less costs in terms or ruining the lives of students who attend law school but are never able to pass the bar. Unsurpringly, however, the ABA prefers the cosmetic solution that preserves its power and keeps the current barriers to entry in place, even at the price of urging illegal actions on the law schools.

UPDATE: And here's an unintentionally ironic comment from John Sebert, consultant to the ABA, last seen shilling for the ABA's new "diversity" racial preference requirements, defending the use of LSATs in admissions in today's Chronicle of Higher Education (temp link): "It's sort of a consumer-protection issue," he said on Monday. "We want to be sure that law schools aren't admitting a substantial number of students who are unlikely to be successful in their program or in their attempts to pass the bar." So why is it okay for law schools to admit African American students with scores that guarantee that many of them "are unlikely to be successful in their program or in their attempts to pass the bar"? Remember, 42% of African American students who start law school either fail out or never pass the bar. The "failure" statistic is much lower for the better law schools, which means, logically, that it's significantly worse than 42% at some lower-ranked law schools. And, moreover, law schools can generally predict based on incoming LSATs scores which students are likely to have trouble passing the bar. Isn't there a consumer protection issue in admitting, without warning, students who you know based on prior statistics (and law schools do know!) have less, and perhaps much less, than a 50% chance of becoming lawyers? And if so, why does the ABA not only encourage, but demand this (and more of it, under the new standard)? Hat tip: Rosenberg.

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Instructor at Minnesota State College Allegedly Ordered Not To Post Mohammed Cartoons:

The Minneapolis Star-Tribune reports:

Karen Murdock, a part-time geography and earth science instructor who posted the cartoons -- surrounded by news articles about the topic and blank "comment" sheets -- said she simply wanted to spark discussion by allowing others to see the cartoons first-hand.

But the postings, first displayed Tuesday afternoon, were torn down at least once.

By Thursday, a senior faculty member instructed her to keep the cartoons off the social and behavioral sciences bulletin board, Murdock said. . . .

Administrators hope that a forum being arranged by many Muslim students and faculty members next week in light of the postings will help quell any hard feelings on campus.

The forum is meant to increase understanding of Muslim culture, said Mike Bruner, vice president of student affairs. "When students come to me who are hurt, it signals to me we're off course somewhere," he said. . . .

Does it ever signal that the students are the ones who are off course>

The newspaper also reports:

Whether or how the cartoons could be displayed might be resolved as part of the forum; officials want to leave that up to faculty and students.

What else would be left up to the students? Whether people should be allowed to blaspheme against Christianity? Use God's name in vain? Post anti-American items?

Thanks to the Foundation for Individual Rights in Education for the pointer.

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University of Chicago Threatening to Punish Student for Posting Anti-Mohammed Cartoon?

Does anyone have more information on this story from the Chicago Maroon, the student paper?

A student in Hoover House faces possible disciplinary action from the University after posting a cartoon depicting the Muslim prophet Muhammad on a dormitory door. The incident, which occurred early last week, follows the recent expulsion of two students from Hitchcock House after one wrote racist and anti-Semitic remarks on the other’s whiteboard.

The drawing in Hoover featured a crudely sketched figure accompanied by the caption "Mo’ Mohammed, Mo’ Problems," in reference to the recent worldwide protests of the Muhammad cartoons. It was drawn on a sheet of paper and posted on the outside door of the student’s suite facing the dormitory hallway.

The student who drew the cartoon did not wish to be named and declined to discuss the incident with the Maroon, citing the ongoing investigation by the Housing Office.

Those familiar with the situation said a complaint was raised shortly after the illustration went up. According to a first-year Hoover resident who also declined to be named, a neighbor left a written objection on the suite door, and Andrea Gates, Hoover Resident Head, was notified of the drawing. The student who drew the cartoon took it down after receiving the complaint and issued a written apology to the offended resident at Gates’s request. . . .

The student was "told [by the University's Housing Office] there’s a possibility he’ll get kicked out of housing," the first-year resident added. . . .

The Student Manual of University Policies and Regulations addresses this type of incident. It states that the University does "not attempt to shield people from ideas that they may find unwelcome, disagreeable, or even offensive. Nor, as a general rule, does the University intervene to enforce social standards of civility."

Yet some students feel that this incident goes beyond freedom of expression.

Hasan Ali, a fourth-year in the College and president of the Muslim Students’ Association, noted the difference between freedom of speech and freedom from responsibility. He compared the cartoon to the drawing of a swastika, noting that such an image "is free speech but is still wrong." . . .

So now every criticism of Mohammed -- or of Islam -- is comparable to a swastika? Or is it that every depiction of Mohammed is comparable to a swastika? Sounds like a reason to protect swastikas, not to suppress criticisms of a religion.

I hope that, despite the assertions reported in the story, the administration is not seriously trying to punish the cartoonist, or even insisting that students stop posting such cartoons. But, as I said, I'd love to hear more from people who know more about how accurate and complete the story is.

Thanks to the Foundation for Individual Rights in Education for the pointer.

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Pro-Denmark Rally, Lunchtime Friday in D.C.:

Christopher Hitchens, writing in Slate, is organizing a rally in D.C. outside the Danish embassy:

Please be outside the Embassy of Denmark, 3200 Whitehaven Street (off Massachusetts Avenue) between noon and 1 p.m. this Friday, Feb. 24. Quietness and calm are the necessities, plus cheerful conversation. Danish flags are good, or posters reading "Stand By Denmark" and any variation on this theme (such as "Buy Carlsberg/Havarti/Lego"). The response has been astonishing and I know that the Danes are appreciative. But they are an embassy and thus do not of course endorse or comment on any demonstration. Let us hope, however, to set a precedent for other cities and countries. Please pass on this message to friends and colleagues.

It's only a short cab ride from the K Street corridor, and several blocks' walk from Dupont Circle or Woodley Park.

Hope you can make it -- if you're planning to, please note this in the comments, so that other Conspiracy readers will feel emboldened.

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Commentary on Summers's Resignation:

From ACTA, the Wall Street Journal, and Washington Post. All of them are quite critical of Harvard's faculty and trustees, and the Post's may be the toughest of the lot.

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U.S. Law Professor Calls for Criminal Punishment of Danish Newspaper

That Published the Mohammed Cartoons: See his article here.

Thanks to reader Peter Herngaard for the pointer.

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What Am I Missing Here?

As Jim points out, the New York Times reports that "11 journalists in five countries [are] facing prosecution for printing some of the cartoons." Maybe I'm going blind, but for the life of me I can't figure out from the article what the five countries are.

I saw the references to journalists in Yemen and Jordan -- but what are the others? (The article mentions journalists in Egypt who published the cartoons, but stresses that they aren't in legal trouble, because they "reprinted [the cartoons] in October -- months before the conflict erupted -- to condemn the drawings." What am I missing?

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Mickey Kaus on the Austrian Prison Sentence for Denying the Holocaust:

I haven't posted on this because I don't have that much beyond the obvious to add (though I might have a little more later); but I thought I'd at least pass along a link to Mickey's take.

UPDATE: D'oh! Jim beat me to this. In any case, Jim's right.

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Lileks on the Port Controversy:

As usual, eminently reasonable, thoughtful, and persuasive. This is very far outside my area of expertise, so I can only offer a layman's gut feel — but my gut (which is usually a generally pro-free-trade let-the-market-decide gut) says that letting the United Arab Emirates firm run U.S. ports is likely bad policy and extraordinarily dumb politics. I'd be happy to be persuaded otherwise, but Lileks makes a pretty good case for his position.

Thanks to InstaPundit for the pointer.

UPDATE: Daniel Drezner has a long and characteristically thoughtful post on why we shouldn't be troubled by this. I hope he's right; but I'm still worried about the things that Lileks is worried about. Thanks to commenter Sprice for the pointer.

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David Irving and Holocaust Denial.--

Kausfiles analyzes the efforts of Austrian prosecutors to punish David Irving more severely for holocaust denial (tip to Instapundit).

Austrian prosecutors are asking to increase the three year sentence meted out to (despicable, creepy, infamous etc.) British writer David Irving for violating a criminal statute that penalizes anyone who "denies, grossly plays down, approves or tries to excuse" the Holocaust in print "or other media."

Denying the Holocaust may or may not be the same thing as merely depicting the Prophet, but jailing someone for denying the Holocaust seems like the same thing as jailing someone for depicting the Prophet. The New York Post, shamefully, ran the story of the sentencing under a nyah-nyah headline of "Deny This!" We'll see how the Post's crack editorial writers reconcile this glee at Irving's imprisonment with their criticism of the administration ("Bushies betray free speech") for having failed to defend in stronger terms the "freedoms that Americans hold dear" in the case of the Danish cartoonists.

The Anti-Defamation League, also shamefully, limits its criticism to "acknowledging that America's constitutional system bars prosecution for hate speech" before rushing to congratulate the Austrian court for having "sent an unmistakable and important message." I'm afraid it did.

I don't think that holocaust denial--or flag burning--should be a crime. Although I have thought this for at least two decades, the cartoon riots have confirmed and strengthened this opinion. The Imams are right to point to the inconsistency in European treatment between holocaust denial and blasphemy against Mohammed.

There is a lot we can learn from the furor over the cartoons. The disutility of flag-burning and holocaust denial statutes is just one of them. Another lesson (which universities should do more to teach): No one has a right not to be offended.

More from Eugene and from Andrew Sullivan.

Related Posts (on one page):

  1. Mickey Kaus on the Austrian Prison Sentence for Denying the Holocaust:
  2. David Irving and Holocaust Denial.--
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Fukayama on Neoconservatism:

There's lots of buzz about this N.Y. Times piece by Frank Fukayama, attacking neoconservative foreign policy. It is indeed a well-written, provocative, and persuasive analysis of the foibles of neoconservatism.

However, I disagree with Fukayama's contention that only since the fall of Communism has neoconservatism abandoned its initial distrust of government in favor of an aggressive (and extremely naive) Wilsonianism calling for the use of American power, military and otherwise, to spread democracy throughout the world. I was attracted to neoconservatism as a college student, but abandoned it rather quickly when I realized that neoconservatives' faith in the government's ability to competently spread democracy to foreign cultures did not exactly jibe with their (and my) skepticism of government's ability to, say, run a competent welfare program. In other words, the follies of neoconservative foreign policy that Fukayama identifies were apparent to anyone who was paying attention in the mid-1980s. Fukayama's claim that they only recently became apparent, and that excuses his own long dalliance with neoconservatism, just doesn't hold up.

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11 Journalists in 5 countries arrested for publishing cartoons.--.

According to the New York Times, 11 journalists in 5 countries are facing prosecution for publishing Mohammed cartoons:

In a direct challenge to the international uproar over cartoons lampooning the Prophet Muhammad, the Jordanian journalist Jihad Momani wrote: "What brings more prejudice against Islam, these caricatures or pictures of a hostage-taker slashing the throat of his victim in front of the cameras, or a suicide bomber who blows himself up during a wedding ceremony?"

In Yemen, an editorial by Muhammad al-Assadi condemned the cartoons but also lamented the way many Muslims reacted. "Muslims had an opportunity to educate the world about the merits of the Prophet Muhammad and the peacefulness of the religion he had come with," Mr. Assadi wrote. He added, "Muslims know how to lose, better than how to use, opportunities."

To illustrate their points, both editors published selections of the drawings — and for that they were arrested and threatened with prison.

Mr. Momani and Mr. Assadi are among 11 journalists in five countries facing prosecution for printing some of the cartoons. Their cases illustrate another side of this conflict, the intra-Muslim side, in what has typically been defined as a struggle between Islam and the West. . . .

"I keep hearing, 'Why are liberals silent?' " said Said al-Ashmawy, an Egyptian judge and author of books on political Islam. "How can we write? Who is going to protect me? Who is going to publish for me in the first place? With the Islamization of the society, the list of taboos has been increasing daily. You should not write about religion. You should not write about politics or women. Then what is left?"

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Judge Orders DOJ to Identify Any NSA Connection in Terrorism Case: The Associated Press reports:
  In a ruling made public on Tuesday, a federal judge said the government must disclose whether it used any information from the domestic eavesdropping program in its case against a man convicted of joining Al Qaeda and plotting to assassinate the president.
  The judge, Gerald Bruce Lee, postponed the sentencing of the man, Ahmed Omar Abu Ali, at the request of defense lawyers who said they suspected that he was illegally singled out by the eavesdropping program.
  In the ruling, Judge Lee gave prosecutors until March 9 to submit a sworn declaration from a government official to say whether any information from the eavesdropping was used in Mr. Abu Ali's case.
  An interesting development. For background on the arguments, see this story from February 11th and this story from last week.
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American Church Leaders Publicly Condemn America,

all in the guise of confessing their own sins, the chief of which seems to be "fail[ing] to raise a prophetic voice loud enough and persistent enough to deter our leaders." The Institute on Religion and Democracy has some choice words in response:

The letter was written in the form of a penitential rite, with paragraphs ending in "Lord, have mercy"; "Christ, have mercy"; and "Lord, have mercy." There was some awkwardness in the fact that the U.S. church leaders were mainly confessing the sins of George W. Bush, rather than their own sins. But they insisted on their own guilt, too, because "we have failed to raise a prophetic voice loud enough and persistent enough to deter our leaders."

In fact, U.S. church leaders have issued many statements loudly condemning the Bush administration for its policies. But they were not heeded because they lacked the support of their own most active church members. A majority of U.S. mainline Protestants who regularly attend worship voted for the president in the last election. It was not clear why the U.S. denominational officials believed that another, still shriller denunciation, in this latest letter, would make them any more effective in persuading the president or their own church members....

The letter had not a single positive thing to say about America's role in the world. Its last paragraph projected a tone of pathos: "Sisters and brothers in the ecumenical community, we come to you in this Assembly grateful for hospitality we don't deserve, for companionship we haven't earned, for an embrace we don't merit." As in the WCC's February 14 opening litany of "Cries of the World," it appears that the main contribution of U.S. denominations to the ecumenical council (aside from dollars derived from faithful U.S. church members) is their own self-abasement....

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American Episcopalians and Secession Towards Uganda:

That's all I know to say on this confusing topic -- readers who understand what's going on here, please enlighten me. (I have a purely academic curiosity about this; perhaps some of our other non-Episcopalian readers will, too.)

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A Basic Lack of Seriousness?

Is it just me, or is the AP being fundamentally unserious here? Justice Scalia comes to give a talk at the American Enterprise Institute on the use of foreign law in American court opinions. It's a moderately interesting and topical subject, that bears on some sexy issues (the death penalty, natural rights, and the like). Scalia gives a substantive talk, with a decent amount of quotable material. (I wasn't there, but I read the transcript online.) He even seems to speak out in favor of the individual rights theory of the Second Amendment:

In number 46 of The Federalist, James Madison speaks contemptuously of the governments of Europe which are, quote, "afraid to trust the people with arms," close quote.

Should we revise the Second Amendment because of what these other countries think?

It's a little tangential to the rest of the talk, but it sounds pretty juicy; he had said the same in his essay in A Matter of Interpretation back in 1997, but it still seems like an interesting tidbit.

What does the AP story talk about? A heckler, it appears, interrupted Justice Scalia, and then was escorted out. That's the lead of the AP story, and it occupies the majority of the story; the rest of the article goes on to say that Scalia refused to answer questions that were unrelated to the topic of the talk, surely news of earth-shattering importance and great public interest. Not a word about what the substance of the talk was even summarizing what Justice Scalia was actually saying.

This is the Associated Press, an organization that's supposed to be dedicated to conveying the important news of the day. Newspapers and their readers rely on it to convey the important news of the day. Opinion writers (whether columnists or bloggers) are entitled to focus on those little tidbits that they find particularly interesting. But serious news organs are, I think, rightly expected to exercise serious news judgment: To figure out what's especially important, and to cover that for their readers' benefit. (An occasionally lighter side story is fine, of course, but not when the lighter side or the fundamentally irrelevant side is covered to the exclusion of the important side.) Can it really be that a Lyndon LaRouche activist's heckling of Justice Scalia's speech (the part about his being a LaRouche activist, by the way, was Ted Frank's catch, not the AP's) is so much more important than the substance of what a Supreme Court Justice is saying?

Thanks to Ted Frank (PointOfLaw) for originally pointing this out, and to InstaPundit for the pointer to Ted.

UPDATE: Thanks to commenter BikerDad for pointing out that my original assertion, "Not a word about what the substance of the talk was," was an overstatement; the AP did report generally mention the topic of the talk -- it just didn't report on what Justice Scalia actually said about the topic.

FURTHER UPDATE: Thanks to commenter SimonD for pointing to the transcript of the talk, which was produced by ninoville from the C-SPAN broadcast.

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Tuesday, February 21, 2006

I'd be Shocked, Shocked, to Find Quotas Here:

Ole Miss:"The resolution adopted by the law faculty Thursday didn't state a quota because that would be unconstitutional under the U.S. Supreme Court's recent decisions, Davis said. The resolution expresses the aspiration that a "critical mass'' of minority enrollment should be closer to numbers achieved in 2005, rather than 2004. Davis said."

It would be far more honest (or at least forthright) if Ole Miss Law simply adopted a quota, instead of purportedly not adopting a quota but telling the admissions office what numbers they should achieve. However, honesty and forthrightness in affirmative action in education have been in short supply since Bakke, when the Supreme Court first required universities to dress up policies meant to further "social justice" in the guise of "diversity,." More recently in Grutter, the Court has required "quotas" to be disguised as "critical mass." Given Mississippi's (and Ole Miss's) history, I'm not one to begrudge some compensatory admissions policies, but that's a separate issue from whether those policies should be obfuscated by Orwellian language necessitated by Supreme Court decisions that neither allow such policies, nor, in practice, prohibit them so long as they are adequately disguised.

Blogs and Legal Scholarship: Today's Wall Street Journal has an interesting essay on the impact of blogs on legal scholarship. It includes quotes from lawprof bloggers Rosa Brooks, Daniel Solove, and Ethan Leib.
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Defendants With Websites: The fact that Scooter Libby has started up a website, www.scooterlibby.com, reminds me to post on a vaguely related question: How many criminal defendants in Supreme Court cases have their own websites about the case? I know that Danny Lee Kyllo of Kyllo v. United States has http://dannyleekyllo.com, and Larry Hiibel of Hiibel v. Sixth Judicial District Court has an official site at www.papersplease.org. Are there others?
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Oregon Supreme Court Reinstates Measure 37:

I few months ago I noted that an Oregon trial judge invalidated Oregon's Measure 37 unconstitutional under the state's constitution. The Measure, enacted by referendum, expanded the circumstances under which landowners could seek compensation for Takings when government regulation reduced the value of their property. Geoff Manne reports that the Oregon Supreme Court has now weighed in and reversed the lower court, holding the Measure to be constitutional.

The opinion is here.

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Opinions Today: The Supreme Court handed down two signed opinions and three per curiam opinions this morning. They're all available here, via Howard. For my money, the most interesting cases are Gonzales v. O Centro Espírita Beneficente União do Vegetal, a unanimous opinion by Chief Justice Roberts involving a preliminary injunction under RFRA to block DOJ from prosecuting members of a religious sect for using hallucinogenic tea, and Lance v. Dennis, a per curiam decision on the scope of the Rooker-Feldman doctrine.
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Harvard President Plans to Resign: Reuters has the story. UPDATE: It's official, Summers has resigned.
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Supreme Court Grants Cert in Partial-Birth Abortion Case: Howard has the breaking news here. As Lyle Denniston notes, the case probably will be argued in the fall.
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Toward the Independent Republic of Kurdistan.--

Michael Totten has a typically insightful piece on how things are going in Kurdistan:

In January 2005 the Iraqi Kurds held an informal referendum. More than 80 percent turned out to vote. 98.7 percent of those voted to secede from Iraq. Not only have the Kurds long dreamed of independence, when they look south they see only Islamism, Baathism, blood, fire, and mayhem. . . .

Arab Iraqis who want to “keep” Kurdistan ought to thank the heavens for Jalal Talabani, Iraq’s new president and the party chief of the Patriotic Union of Kurdistan. He belongs to the 1.3 percent of Iraqi Kurds who want to stay connected to Baghdad. The Kurds love Talabani, whom they affectionately call “Mam Jalal” (Uncle Jalal), for leading the militarily successful fight against Saddam Hussein.

Meanwhile, Masoud Barzani, President of Kurdistan and party chief of the Kurdistan Democratic Party, is playing the “bad cop” role. While Talabani is busy in Baghdad trying to hammer out the best federalism bargain the Kurds could ever hope for, Barzani broods in his mountain palace and openly threatens secession.

Not one Iraqi flag is flown in Kurdistan’s capital of Erbil, which doubles as the stronghold of Barzani’s KDP. Only maps will tell you that Erbil is part of Iraq. The Iraqi flag is flown on government buildings in Suleimaniya, the stronghold of the PUK. But it’s the old Iraqi flag, the pre-Saddam Iraqi flag, the one that doesn’t have Allahu Akbar scrawled across the middle of it.

The Kurdistan Regional Government has its own ministers. They report to no one in Baghdad. The Kurds have their own military. They have their own economy. They have their own internal border, and they are its only policemen. The Kurds even have their own foreign policy. Their government is internationally recognized. When Masoud Barzani travels to foreign capitals he is recognized as the President of Iraqi Kurdistan.

I knew that most Kurds want independence, but I had no idea of the numbers.

Much of the article concerns Kirkuk, the oil city to which Saddam imported Sunni Arabs.

At the same time the Kurdistan Regional Government is trying to push one dangerous population out of what they say is their area [relatively newly arrived Arabs out of Kirkuk], they’re actively recruiting a safe population to move north and settle in Kurdistan.

Arab Christians from the south and the center of Iraq are actually given money and housing by the KRG if they move north. Insisting on a purely Kurdish region or a purely Muslim one is the last thing on the establishment’s mind. What they want is geographic federalism or sovereignty. And they need as many well-educated, competent, and trustworthy people as they can find. They don’t care about race, and they don’t care about religion. They are concerned strictly with numbers and security. It's just that some groups are more trusted than others. Arab Christians will never join an Islamist jihad, as everyone knows. And the Kurds trust Arab Christians not to join the Baath either. Arab Muslims can and do move north to Kurdistan as well, but they need approval from the KRG and they are not given incentives.

Fascinating stuff!

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Monday, February 20, 2006

Radicals in Higher Education: Last week, Sean Hannity expressed the following concern on Hannity & Colmes:
Kids are indoctrinated. They’re a captive audience. What can be done to remove these professors with these radical ideas from campus?
Michael Berube responds here.
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Some (Relatively) good news from a Poll of Palestinians:

Ha'aretz: "In the first poll in the territories since Hamas' victory, 66 percent of respondents said the new government should honor the Palestinian Authority's commitment to negotiations with Israel. Among Hamas voters, only 12 percent said they chose Hamas for its political agenda, while 43 percent said they were fed up with Fatah's corruption. The rest said they were hoping for a better life or voted for religious reasons.... The poll confirms that most Palestinians, 58 percent, still believe the conflict with Israel should be resolved on the basis of the two-state principle. A binational state received support from 22 percent, while 10 percent favored a Palestinian state on the entire land."

Given these poll numbers, I would think that there is room for the development of a relatively liberal, non-Islamic, non-corrupt political movement in the Palestinian areas that seeks a negotiated peace with Israel. It's too bad the EU, U.S., and to some extent Israel itself were busy propping up Fatah all these years instead of helping nurture such a movement.

Props to the Patriots:

For the first time in school history, the George Mason Men's Basketball team has cracked the Top 25 after beating Wichita State on Bracketbuster Saturday (I've been a season ticket holder the past few years so I take some pleasure in this). We're not quite there with Orin's guys across the river yet, but with three key starting seniors we could scare someone come March.

More generally, as more mid-majors keep their guys for four years while the power conference teams lose their guys early, it seems like the shrinking of the gap between the power conferences and the mid-majors has accelerated this year, as evidenced by the number of mid-major teams in the rankings (not to mention the extraordinarily high rankings of GW and Gonzaga).

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GW Moot Court: Via Howard, I see that C-SPAN has posted a video of GW Law School's moot court finals from earlier this month, featuring Chief Justice Roberts, Judge Calabresi, and Judge Sotomayor. You can find a summary of the hypothetical case here (.pdf).

Related Posts (on one page):

  1. Justice Alito at GW Law:
  2. GW Moot Court:
  3. Moot Court:
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More on the Torture Memos: Jane Mayer has a long article in The New Yorker about the evolution of the Bush Administration's approach to the interrogation of detainees at Guantanamo and elsewhere, focusing on the role of former Navy General Counsel Alberto J. Mora. The article has a fairly clear viewpoint, but it adds some interesting details to what was previously known. Thanks to Anderson for the link.
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Two New LawProf Group Blogs: I'm happy to announce the arrival of two new lawprof group blogs:

  The first is the Empirical Legal Studies blog, which was launched just yesterday:
  The ELS blog is a collaborative project produced by Professor Jason Czarnezki of the Marquette University Law School, Professors Michael Heise and Theodore Eisenberg of the Cornell Law School, and William Ford, Bigelow Fellow and Lecturer in Law at the University of Chicago Law School. . . . .
  The ELS blog serves as an online forum to discuss and provide links for emerging empirical legal scholarship, provide conference updates, discuss empirical claims that have emerged in public and political discourse, facilitate discussion for guest empirical scholars and assess current empirical findings and methodologies.
  The second is the International Economic Law and Policy Blog, which was launched in January:
  This blog offers commentary on current developments and scholarship in the field of international economic law and policy. It was started in January 2006 by Joel Trachtman and WorldTradeLaw.net, and is managed by WorldTradeLaw.net with contributions by the authors listed on the main page of the blog. [Those contributors are] Tomer Broude, Steve Charnovitz, Sungjoon Cho, Bill Davey, Jeff Dunoff, Rob Howse, Petros Mavroidis, Joost Pauwelyn, Joanne Scott, Greg Shaffer, Debra Steger, Paul Stephan, Chantal Thomas, Joel Trachtman, and Todd Weiler.
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Sunday, February 19, 2006

Pheezer the Appeaser:



Believe it or not, Dr. Seuss was a political cartoonist in the early 1940s, where he drew (among other things) the above item (August 13, 1941). Thanks to sisu for the pointer, and to UCSD for the cartoon.

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Blargon:

Via Joe Malchow, William Safire's "On Language" column today is on "Blargon,"the jargon of the blogosphere.

Update:

Whoops, I see Orin was also linking to Safire at the same time I was. Does Safire have a term for when two of us post on the same thing at the same time?

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Summers To Be Sacked?

It is being reported that the Harvard Corporation is considering sacking Lawrence Summers prior to a faculty senate meeting later this month that is expected to result in a second no-confidence vote. The Reuters story, which summarizes stories from other newspapers, is here. One passage in the Wall Street Journal's article (subscription) on the matter caught my eye:

While donations to the university have remained high, the percentage of alumni giving to the university has declined, which some critics see as a sign of discontent with his leadership.

Query for Harvard alumni readers--is the proffered explanation for declining alumni giving rate accurate? It seems to me that there are two alternative explanations for a decline in alumni participation. It could be that the discontent is with Summers, his remarks, and his combative leadership style, the explanation suggested by the WSJ article (I have been told that he has crossed swords with the faculty on a variety of less-reported other issues as well, including such things as curriculum and suport for ROTC). Alternatively, it could be discontent with the response by the faculty to Summers's remarks and efforts to increase accountability among some faculty members, Summers's "kowtowing" response to the criticisms (his apologies and his spending initiative and other promises), and the Corporation's failure to support him.

In the end, of course, both explanations fall under the label of "discontent with his leadership," but it seems to me that they reflect different dynamics and different lessons. The WSJ reference to unnamed "critics" seems to simply assumes the conventional wisdom to be accurate. But I have heard from some of my Harvard alumni friends that their discontent is more with the faculty, Corporation, and Summers's response to the criticisms, rather than Summers's initial comments and confrontations. I don't know that either the WSJ's unnamed "critics" or my friends are particular representative of this slice of Harvard alumni.

So if you are a Harvardian, and especially if you are in the group referenced in the article that has ceased giving to the University for one reason or another in the past year or so, I'd be curious to hear what you are thinking in the Comments.

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Safire on Blogging Jargon: Column here. Thanks to commenter John Armstrong for the heads-up.
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Another Sunday Open Thread: What's on your mind? Comment away.
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Thanks, Readers:

Sitemeter shows that last week the VC had an average of 34,500 visitors per day, including the weekend. The only time we've approached such vistor totals in the past was in weeks when Supreme Court nominations were in the news. Thanks for reading.

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Prof. Bracey on Articulating Normative Commitments to Racial Preferences:

Bracey: "But asking a law school to articulate and stand behind its normative commitments regarding race preferences – one way or the other – strikes me as a good thing to do." I vehemently disagree that this is what the ABA is asking law schools to do; rather, it is requiring all schools to have preferences. But I agree with Prof. Bracey that what he suggests is a good idea, and I'm not sure why he thinks I would object to this. Indeed, my preferred solution to the preferences issue in higher education would be for schools to articulate what preferences they have, how strong these preferences they are, and why they have them, and then defend their position to their constituents and the public at large.

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McCain Graciously Tells Off Obama:--

The Weekly Standard reprints excerpts from an amazing letter that John McCain sent to Barack Obama. Here is the Scrapbook note and the McCain letter (subscription required):

Democratic senators Harry Reid and Barack Obama tried to pull a fast one on John McCain and got hit with the literary equivalent of a B-52 strike. McCain's been working on a bipartisan lobbying reform bill. Obama, Reid's designee on reform, told McCain he wasn't a partisan hit man and wanted to help out. So, at McCain's invitation, Obama attended a meeting on the bill and let McCain know the next day that he appreciated working together. But that night Obama's office, evidently at Reid's request, emailed, and released to the press, a letter to McCain, then en route to Germany, mourning Wash-ington's "culture of corruption," and lamenting that a bipartisan reform wouldn't be "effective"; only the Democratic leadership's bill, which has no Republican cosponsors, "represents a significant step in addressing many of the worst aspects of corruption."

McCain arrived back in his office on February 6 and responded with his own letter, also released to the press:

I would like to apologize to you for assuming that your private assurances to me regarding your desire to cooperate in our efforts to negotiate bipartisan lobbying reform legislation were sincere. . . . Thank you for disabusing me of such notions with your letter. . . . I'm embarrassed to admit that after all these years in politics I failed to interpret your previous assurances as typical rhetorical gloss routinely used in politics to make self-interested partisan posturing appear more noble. . . . But I understand how important the opportunity to lead your party's effort to exploit this issue must seem to a freshman Senator, and I hold no hard feelings over your earlier disingenuousness.

I tend to like Barack Obama (whom I voted for) better than I like John McCain (with the huge exception of the Iraq War), but my impression of McCain just rose a few notches. Assuming that the background story is accurate [and it might not be, see update below], I really like the tone of McCain's response, essentially apologizing for thinking that Obama was a sincere, decent man, rather than a typical politician. Perhaps Obama, the junior senator from Illinois, has been hanging around the senior senator from Illinois too much.

UPDATE: As a commenter points out below, Senator Obama's website posted the entire exchange of letters. Obama in essence argues that he didn't change his position, so he doesn't know what McCain is talking about. Accordingly, whether McCain's arch, mock gracious tone is justified turns on whether McCain's account of their cooperation--or Obama's--is the correct one.

2D UPDATE: Among the more interesting comments are two that point in opposite directions. One comment points to an interesting analysis by Mark Schmitt and Bob Bauer of one reason for McCain's pique--that McCain effectively "owns bipartisanship" and treats any attempt to work around him (even by going through the normal committee process) as a personal affront.

Another comment claims: "There was a third party in the room to confirm whose version of events was correct — Sen Joe Lieberman was on the Don Imus program the next day. [Senator Susan Collins was also present.--JL] Imus pressed him to clear up the diverging accounts and his response was Obama could have been more clear in his intitial discussions with McCain." Unfortunately, I was unable to confirm this acoount because the Imus transcript appears not to be online; nor does it appear to be on Lexis or Westlaw. I did find this quote from Senator Lieberman's appearance that shows him also tweaking McCain a bit: "I've been working with John to make him more assertive and plainspoken and I think it worked."

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Murdering People for Belonging to the Wrong Religion:

The AP reports:

Nigerian Muslims protesting caricatures of the Prophet Muhammad attacked Christians and burned churches on Saturday, killing at least 15 people in the deadliest confrontation yet in the whirlwind of Muslim anger over the drawings.

It was the first major protest to erupt over the issue in Africa's most populous nation. An Associated Press reporter saw mobs of Muslim protesters swarm through the city center with machetes, sticks and iron rods. One group threw a tire around a man, poured gas on him and set him ablaze. . . .

Thanks to InstaPundit for the pointer.

The one bright spot in this story comes in a quote from a Danish bishop, in a telling exchange with an Egyptian imam:

In Cairo, Bishop Karsten Nissen, of Denmark's Evangelical Lutheran Church, met with Grand Imam Mohammed Sayyed Tantawi of al-Azhar University, the world's highest Sunni Muslim seat of learning.

Tantawi said the Danish prime minister must apologize for the drawings and further demanded that the world's religious leaders meet to write a law that "condemns insulting any religion, including the Holy Scriptures and the prophets." He said the United Nations should impose the law on all countries.

In response, Nissen did not address the issue of a global law but said it was impossible for Prime Minister Anders Fogh Rasmussen to apologize.

"I have brought to his excellency (Tantawi) the apology of the newspaper, but our prime minister did not draw these cartoons. Our prime minister is not the editor of this newspaper. He cannot apologize for something he did not do," Nissen said....

I'm glad that even against the backdrop of murderous thuggery by Muslim extremists, some people are willing to repeat that, no, free nations and governments are not responsible for what their newspapers publish.

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