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Saturday, August 26, 2006
The Group Dynamics of Mass Unsolicited E-Mail Lists:
Every once in a while, some random person sends out an unsolicited e-mail to an assembled distribution list of anywhere from 50 to 200 addresses found on the web trying to either settle some personal score or bring attention to a cause. In my experience as an occassional recipient of such e-mails — whether because of blogging or the day job, or some other random connection — the dynamic usually goes something like this: 1. A few people will respond with a "reply all" suggesting to the sender that it's really not nice to spam so many people like that, and/or that the message of the e-mail is wrong or offensive.
2. One or two people will respond with a "reply all" asking everyone else to "please take me off this distribution list."
3. A bunch of people will then chime in with "reply all" responses urging recipients to "STOP REPLYING WITH 'REPLY ALL' AS NO ONE CARES, AND HITTING 'REPLY ALL' IS REALLY ANNOYING!!!."
4. After the flurry of "reply all"s condeming the use of "reply all"s, some time will pass, and then someone on the list will have to follow up "reply all" with some kind of comment on the substantive message of the initial e-mail.
5. The comment will draw one last "reply all" condemning the use of "reply all"s, and then the round is over. It's the folks who participate in Step 3 without a hint of irony that I find the most amusing. But then the whole thing is sort of funny, I guess. UPDATE: I switched (1) and (2) around, as I remembered that people usually don't start asking to be removed from the list until a handful of e-mails from the list are in their inbox.
Owens the master in JonBenet case:
My new media analysis column for the Rocky Mountain News looks at how Republican Governor Bill Owens used the JonBenet case, and other sensational national Colorado crime stories, to his political advantage:
Although Ronald Reagan faced a hostile media, he succeeded politically in part because he knew how to beat the media at its own game; by carefully limiting the supply of presidential photo opportunities, Reagan ensured that even when the words in a television story about his policies were negative, the pictures would be positive.
Similarly, Owens on policy was well to the right of much of the Colorado media. Yet he was very good at delivering soundbites for big crime stories, reinforcing popular (although not necessarily accurate) public opinion about somebody's guilt. He thus used the media to disseminate an image of himself as a straight-talking, common-sense leader who was not afraid to criticize the guilty (or rather, those who had been proclaimed guilty by the media).
Like a martial artist who turns his opponent's greatest force into a vulnerability, Reagan jiu-jitsued the picture-dependent national TV networks. Likewise, Owens turned the media's obsession with sensational crime stories into a showcase for himself.
Friday, August 25, 2006
Hey, Wait a Sec!
I think this means the Ninth Circuit is blegging.
The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:
Rather an unusual order in U.S. v. Canty and U.S. v. Zavala:
The court invites supplemental briefs by the parties addressing some or all of the following questions on the role of the United States Sentencing Guidelines in a district court’s sentencing decision after United States v. Booker, 543 U.S. 220 (2005):
1. Do we have jurisdiction to review appeals of within-Guidelines range
sentences?
2. If we have jurisdiction to review within-Guidelines range sentences,
are such sentences entitled to a presumption of reasonableness, or
should we review such sentences no differently than we review
outside-Guidelines range sentences? If within-Guidelines range
sentences are entitled to a presumption of reasonableness, is this
presumption conclusive? Rebuttable? If rebuttable, how can such a
presumption be rebutted?
3. How should we review a post-Booker sentence for reasonableness?
Do we review only whether the district court complied with Booker’s
mandate to consider the 18 U.S.C. § 3553(a) factors? If so, is this
review de novo? Do we independently review the sentence imposed
for reasonableness? If so, how do we determine whether a sentence is
reasonable? What legal and factual matters, if any, must we consider?
Is this review for abuse of discretion? Are factual findings decided by
the district court reviewed for clear error, abuse of discretion, or on
some other standard of review? Does it matter whether the findings
are pertinent to the calculation of the advisory Guidelines range or
pertinent to the application of the other 18 U.S.C. § 3553(a) factors?
4. What procedure is a district court required to follow in sentencing a
defendant within the advisory Guidelines range? In particular, what
should be the district court’s duty, if any, to articulate its
consideration of the section 18 U.S.C. § 3553(a) factors?
5. If distinct from the procedure for within-Guidelines range sentences,
what procedure is a district court required to follow in sentencing a
defendant above or below the advisory Guidelines range?
6. What weight does the advisory Guidelines range have, in relation to
other 18 U.S.C. § 3553(a) factors? In conducting a sentencing
proceeding, may a district judge announce that he will impose a
sentence within the advisory Guidelines range unless the parties
present compelling reasons for imposing a sentence outside of that
range? On review, should we determine whether the district court has
given the advisory Guidelines range the appropriate weight, and if so,
how?
Briefs responding to this order shall be filed no later than September 15,
2006. Any person or entity wishing to file a brief as an amicus curiae in response
to this order is granted leave to do so pursuant to Fed. R. App. P. 29(a).
The last sentence essentially means that the Circuit really does want more amicus briefs than usual in this case.
For more on the cases, see Sentencing Law and Policy (of course). Related Posts (on one page): - Hey, Wait a Sec!
- The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:
Bleg for Help re Diversity Jurisdiction, Complete Diversity:
I need to know rather quickly if there have been any recent (last several years) developments with regard to diversity jurisdiction, specifically with regard to the issue of complete diversity, other than the provisions of the Class Action Fairness Act. Has there been proposed legislation to further relax the complete diversity requirement? Thanks.
SCOTUSBlog Podcast on Granting Cert:
Over at SCOTUSBlog, Tom Goldstein has posted a 7-minute podcast on how Supreme Court Justices decide which cases to accept for review. If you're interested in how the Supreme Court works, definitely check it out. Also, if you're really interested in how cert works, read Deciding to Decide, a wonderful book about the topic based in large part on interviews with 64 former clerks, 4 former SG's, and 5 Justices.
Takeover by Norway:
I recently came across this list of people in the line of succession to the British throne. People have taken the trouble to list the first 800 or so people in line, taking care (according to the Act of Settlement of 1701) to skip over anyone who is Catholic, is married to a Catholic, or was at one point married to a Catholic. (Query, for anyone who knows: This is weird.... I assume that if you renounce Catholicism you're back in the line of succession? What if you marry a Catholic but your spouse then renounces Catholicism? Are you back in line, or is removal from the line of succession permanent? Would someone who had divorced a Catholic have to get their ex-spouse to renounce Catholicism to get back in line?)
Point 1 is that what would rock is if Prince William started dating a Catholic. Constitutional crisis! (The Catholic prohibition is sitting there, but it's apparently never been used, and as matters stand today, the prohibition won't be used anytime soon, since the first disqualified person doesn't show up in the list until the 20s.) Of course these British constitutional statutes are just statutes, but (1) it's an important statute, (2) under the Statute of Westminster of 1931, this may require the assent of all the Dominions, and (3) they'd probably have to do some rethinking of this whole King-as-head-of-the-Church-of-England idea.
Point 2 is that the King of Norway is 60th in line of succession. Now 60th is pretty far down, but Norway has been trying to take over England since the year 787! Is there a political thriller plot in there somewhere: The Lindisfarne Legacy? (Note that apparently in V for Vendetta, there's a reference to a "Queen Zara," apparently implying that Zara Phillips, who's now 11th in line, was the most senior Family member to survive a 1980s nuclear war. For Norway-like plots involving currently non-functioning thrones, the heir to the Romanian throne is at #82, the heir to the Serbian throne is at #89, and one pretender to the Russian throne is at #107.)
UPDATE: I know what you're thinking: Isn't "The Lindisfarne Legacy" a course at St. John's College in Durham, England? Not the same thing. You're also thinking: Didn't the Vikings already rule over England from 1016 to 1042, during the reigns of Cnut and Harthacnut? It's tricky to draw these sorts of distinctions, but Cnut is generally thought of as a Dane, not a Norwegian. The Queen of Denmark doesn't come into the British succession until #209.
The Collapse of Collapse:
Scientists, archaeologists, and others have begun examining the claims of Jared Diamond's best-selling Collapse, and some are finding that many of his claims do not hold up to serious scrutiny.
For example, Diamond claims that the collapse of the Rapa Nui on Easter Island provides
"the clearest example of a society that destroyed itself by overexploiting its own resources." Yet Diamond's account is contradicted by the available archaeological evidence, as documented in this article by Terry L. Hunt from The American Scientist. (Link via Daniel Drezner) Whereas Diamond blames deforestation and population growth, Hunt finds that newly introduced diseases, invasive species (rats) and conflict with Europeans had a greater impact.
Using Rapa Nui as an example of "ecocide," as Diamond has called it, makes for a compelling narrative, but the reality of the island's tragic history is no less meaningful. . . .
I believe that the world faces today an unprecedented global environmental crisis, and I see the usefulness of historical examples of the pitfalls of environmental destruction. So it was with some unease that I concluded that Rapa Nui does not provide such a model. But as a scientist I cannot ignore the problems with the accepted narrative of the island's prehistory. Mistakes or exaggerations in arguments for protecting the environment only lead to oversimplified answers and hurt the cause of environmentalism. We will end up wondering why our simple answers were not enough to make a difference in confronting today's problems.
Hunt is hardly the only one to raise questions about Diamond's accounts and his underlying thesis. In 2005, the interdisciplnary journal Energy and Environment devoted a special issue to essays critiquing Diamond's work. Several of the papers are available here. Among other things, the various authors fault Diamond for failing to give sufficient attention to the role of instituions in economic development and environmental performance (a criticism that can also be made of his earlier book, Guns, Germs, and Steel). For those interested in Diamond's thesis, the various papers are worth a look.
More on Evolutionary Biology Omission:
The New York Times reports on the Education Department's curious exclusion of evolutionary biology from the list of subjects eligible for SMART grants here. According to a Department spokesperson, the omission was inadvertent and would be restored to the list. Deven Desai comments on Concurring Opinions here.
Thursday, August 24, 2006
Choice of Blogging Topics:
A commenter on the Conversion to Christianity Earns Death Threats, Risk of Incarceration thread agrees that the story is quite troubling ("As to the post itself I am horrified at this practice," but goes on to ask:
However, I do have to wonder what purpose is served by posting this particular example in such detail. Human rights abuses suck but they are happening all the time. Why pick this one about islam rather than the jailing of Chinese dissidents or oppressive actions by other governments? (Do third world christian nations behave differently or does the influence of first world churches keep them in check?)
If the poster feels that this sort of inhuman treatment goes underreported/uncondemned out of fear of offending religious sensibilities then, assuming his assesment is correct, I share his goals. However, I am skeptical of the appropriatness of this particular incident to accomplish this purpose. Jailing people for conversion to christianity is clearly no worse than jailing them for conversion to any other religion, advocacy of heretical islamic views or violation of any other religious law. Choosing an example where the individual wishes to convert to christianity when the mention of prison camps in the article suggests a wealth of other examples seems designed to inflame a christian audience.
I realize that you probably didn't run across any of the other stories so I don't want to cast blame. However, I do feel that the choice of examples is unfortunate and more good could be done with examples that don't encourage people to view this as a religious conflict.
Another reader likewise asks (with a good deal of detailed discussion following), "What is the purpose of picking up stories about the horrors of repressive Islamic regimes?"
A few thoughts:
1. "This" in the sense of "this story" does involve a religious conflict. "This" in the sense of the broader issue of "jailing ... for conversion to any other religion [or] advocacy of hereitcal islamic views" also involves religious conflicts, albeit ones with other religions.
2. I'm quite sure that the Chinese government represses people's human rights, too; I don't blog much about Chinese repression because I don't get a lot of e-mails about them, and at least some of those stories are complex enough that it's hard to opine on them without investing more time than I have to invest. This story struck me as pretty simple; there'll always be a bias in favor of such stories, especially among part-time writers (though I suspect among full-time writers as well).
3. While some balance of perspective is valuable, insisting that people not complain about the misbehavior of one country (or ideological movement) unless they somehow evenly calibrate their condemnation among all countries, in proportion to the countries' actual misconduct, is a recipe for total silence. Seems to me better that some people point out the misbehavior of some groups and others of other groups (depending on the speakers' knowledge base, interests, and so on), than that no-one point out anything out of an attempt at pure balance.
4. I agree that if you fault country X for doing something and defend country Y for doing the same thing, you could be faulted for inconsistency. Likewise, if X and Y are adversaries, and you fault X for certain behavior in the conflict without noting Y's misbehavior, you can be faulted for partiality. And if you fault country or movement X harshly for doing something that lots of other comparable countries do, without noting that this misbehavior is very common, you can be faulted for lack of perspective. Yet I don't think that any of these problems are present here.
5. The sad fact is that, as best I can tell, many Islamic regimes are indeed quite repressive of religious freedom, as well as of other freedoms. That's important for us to know, and to know in some detail.
6. However, I'm happy to say that if anyone can point me to a non-Islamic country in which religious conversion leads to private death threats, and threat of governmentally authorized incarceration, I'll be glad to note that as well. (I've certainly noted what seem to me improper religious discrimination in my own country, albeit a less egregious discrimination than we're discussing here.) I'm interested in such matters, and it's always good to get interesting blogfodder.
But no need to tell me that revealing accurate information will somehow "inflame a Christian audience," or suggest that it's somehow not "appropriate"; that's not going to go far with me.
UPDATE: The second commenter I quote above posts a follow-up comment, which asks, in part, "Why this story now?"
Well, because a former student (actually, a very liberal former student) e-mailed me this story, and this story was published -- in the New York Times, mind you -- now. What was I supposed to do? Not post it? Sit on it for months until someone sent me some story about a Christian country doing the same to converts to Islam (a story that might never come)? Sit on it until I could spend a week researching all the ways in which a wide range of countries violate a wide range of rights and then post a paper on the subject?
The commenter also writes, "I think one or two of your points above erect strawmen. I don't think anyone -- at least, not anyone that need be taken seriously -- is trying to 'insist that people not complain' about one country or movement unless it is done evenly according to some schedule." I wonder about that. It's hard to figure out what's in my commenters' minds, but the comments as I read them point precisely in that direction: They're suggesting that there was something wrong with posting about the Malaysian government's misbehavior, apparently because I don't comment enough on misbehavior of other governments and therefore because my post somehow paints an unfairly grim picture of Islamic law. Isn't that an argument that people shouldn't be complaining about Islamic misconduct unless one somehow finds some matching set of misconduct by non-Islamic countries that one can serve up as some supposed balance?
Google as a Source of Writing Advice:
In a recent exchange with an editor, I had to choose between "What matters is the [singular version of phrase X]" and "What matter are the [plural version of phrase X]." My first reaction to the latter option was, "Huh, sounds strange."
Now sometimes sounding strange is good: For instance, it's often good to use less familiar (but apt) imagery -- imagery which is "strange" in the sense of less familiar -- than familiar and therefore cliche imagery. The fresh imagery is more likely to capture the reader's attention, and to convey the message.
But you don't want to focus the reader's attention on a routine transition like "What matters is"; it's therefore best, I think, to phrase such routine items in routine ways -- to use common versions, not strange ones. (Other writers may legitimately disagree, but that was my judgment for my piece.) Yet was I right that "what matter are" is much less idiomatic than "what matters is"?
Google to the rescue: Google reported for me 400,000 results for "what matters is the," 35,000 for "what matters are the" (which I think is grammatical, but for reasons I don't want to get into here), and fewer than 1000 for "what matter are the." Matter settled.
Conversion to Christianity Earns Death Threats, Risk of Incarceration:
The New York Times reports:
[Malaysian] Lina Joy ... converted from Islam to Christianity eight years ago and since then has endured extraordinary hurdles in her desire to marry the man in her life.... [S]he is now in hiding after death threats from Islamic extremists, who accuse her of being an apostate.
Five years ago she started proceedings in the civil courts to seek the right to marry her Christian fiancé and have children. Because she had renounced her Muslim faith, Ms. Joy, 42, argued, Malaysia’s Islamic Shariah courts, which control such matters as marriage, property and divorce, did not have jurisdiction over her.
In a series of decisions, the civil courts ruled against her....
About 60 percent of Malaysia’s 26 million people are Muslim, 20 percent are Buddhist, nearly 10 percent are Christian and 6 percent Hindu....
In rulings in her case, civil courts said Malays could not renounce Islam because the Constitution defined Malays to be Muslims.
They also ruled that a request to change her identity card from Muslim to Christian had to be decided by the Shariah courts. There she would be considered an apostate, and if she did not repent she surely would be sentenced to several years in an Islamic center for rehabilitation....
Last month, Prime Minister Badawi appeared to side with the Islamists when he ordered that forums organized around the country to discuss religious freedom must stop. The forums, run by a group called Article 11, named after the section of the Constitution that says Malaysians are free to choose their religion, were disrupted on several occasions by Islamic protesters....
“Church members know us as who we are, and the outside world knows us as we were,” [another convert] said. He was fearful, he said, that if his conversion became public the religious authorities would come after him, and he could be sentenced to a religious rehabilitation camp.
One such place, hidden in the forest at Ulu Yam Baru, 20 miles outside the capital, is ringed like a prison by barbed wire, with dormitories protected by a second ring of barbed wire. Outside a sign says, “House of Faith,” and inside the inmates spend much of their time studying Islam....
Thanks to Cynthia Reed for the pointer.
OpinionJournal Federation Feature Article:
In case you missed my VC post, "Does Japan Have the Right to Exist as a Japanese State?", it's available today on the Wall Street Journal's OpinionJournal website as the OpinionJournal Federation Feature Article of the day. The piece discusses theh fact many countries have an explicit ethnic basis, including some sort of "law of return," but only Israel's right to exist as a Jewish state is ever called into question.
More Advice for Second-Year Law Students.--
David Bernstein has some excellent advice for second-year law students. In particular, as David notes, many students may not realize that most students work much less hard in their last two years, so if you work as hard as you probably worked in your first year, you have a good chance of getting better grades.
Let me offer some additional suggestions:
1. Seminars. Take seminars--and if your school has them, graded faculty workshop courses. They generally offer interesting reading, writing training, the opportunity to get to know professors better, and high grades. [I am here assuming that the curve is substantially higher than in lecture courses, as has been generally true at the six law schools at which I've taught].
2. Independent Study. If your school has possibilities for independent study with a professor, do this both years (with two different professors). The advantages are the same as for seminars--only these benefits are usually realized to an even greater extent. Also, you might get a publication out of it. In choosing whom to work with, try to choose a professor who has successfully supervised or collaborated with students on publications before (ask other professors for this information). For example, on the Northwestern faculty perhaps a third to a half of the prominently published student work has come from working with just a few professors; the most outstanding supervisors on this score have been Steve Calabresi, Ron Allen, Marty Redish, and (before he left for Columbia) Tom Merrill. If no professor has successfully supervised students on independent study, at least pick a professor who publishes a lot, because he or she usually has ideas to share.
3. Law Review Fall Write-on (but only at schools where it often works). A few schools (probably less than 15%) have true open-access law review possibilities in the fall of second year, where at least a quarter of the second-year staff of the main law review are chosen by writing a near-publishable draft of a student note during the semester. Most schools have a write-on option for publishable work, but they are not really geared to accept people through that route, so almost no one succeeds at it. If it is not common at your school to write-on by this method in the fall, I would usually recommend not trying, because it is much too easy to get discouraged. But if access to the law review is truly open and substantial numbers of fall write-ons are selected for the review each year, then I would recommend trying. Work closely with a professor to refine your idea so that you don't spin your wheels, and then kill yourself for the three months it takes to write on. Follow the advice in Eugene Volokh's book and make sure that your blue-booking is exemplary. If doing cite-checking of law review manuscripts is allowed for those merely writing on, volunteer for at least some of this work and make certain that you ace that assignment. For those trying to make the main law review (or for those on the review trying to make the managing board), making an extreme effort for just a few months in the fall term of second year can pay big dividends in the long run. As for working on other than the main law review at your school, I'm not sure that I agree with David. He may be right, or he may not be. Certainly, if you strongly desire that experience, I would do it. As to whether it matters on a resume, I've always thought that being an editor on a less prestigious law review was a plus, but he might be right that it may not be worth the considerable effort, both in making the managing board and doing the editing if you make it.
4. Different Sorts of Educational Experiences. I would generally recommend doing some different sorts of educational experiences because the learning curve is especially steep at the beginning of a new experience. If you don't do law review, you might consider working in the clinic or doing an internship off campus. Both can be terrific for learning how to practice law. While I think that doing moot court can be educationally sound, unfortunately I don't think that it helps your resume unless you win at least some level of the competition. At schools that give a lot of course credit for moot court, that might offset the time spent away from other work, but otherwise I would be cautious about participating in moot court--unless you just love that sort of thing or you realistically have a good chance of winning.
Related Posts (on one page): - More Advice for Second-Year Law Students.--
- Advice for Second-Year Law Students:
Balkin on Originalism:
Larry Solum recommends Jack Balkin's new article Abortion and Original Meaning. Although I must resist the temptation to read it until next week, on the basis of its abstract and Jack's blogging I recommend it as well. There is a reason my first article defending originalism, and the chapter on originalism in Restoring the Lost Constitution, is entitled: "An Originalism for Nonoriginalists." Here is the abstract.
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.
Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.
The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics. As Larry likes to says "download it while it's hot."
I am opening comments for those who read the paper and want to discuss it.
(Civil comments only please)
Update: Jack blogs about his new paper here. You can post your comments on his blog where he can read them.
Advice for Second-Year Law Students:
A reader writes: "How about offering some advice for second year law students--not
making a journal, with mediocre grades, at a respected but not elite
law school? I am somewhat amazed by my grades coming out of this year and little
concerned that I made a poor decision."
My advice is, first, don't despair. I know many students who had mediocre grades their first-year, and wound up doing much better the rest of their law school careers. One student I recall was in the top 45% first year, but wound up in the top 15%. Many of the students who did well first-year will coast. Most of the students who had mediocre greats will be discouraged, and will reduce their effort. This gives you the opportunity to continue to work hard and get excellent grades against weaker competition.
Second, don't waste a lot of time on a secondary law review. Raising your GPA is likely to have a much greater positive impact on your career prospects than being Articles Editor for the Podunk Law School Journal of I Want to Have Law Review on My Resume. A potential exception is when the specific subject matter of the journal is directly related to your career goal.
Third, and most important, make an appointment with each of your first-year professors to go over your exams with them. DON'T look at this as an opportunity to dispute the professors' interpretation of the answers, to argue about your grade, or to carry out revenge fantasies. Do listen, attentively, and also take notes, as your professor explains what was deficient about your exam, and how it could have been improved. If the professors will let you, tape record the conversations. Most likely, common themes will become apparent (you didn't relate the facts of the question to the law, you gave a lengthy treatise providing both sides of the issue, but you never discussed which side you think is more persuasive in this context and why, so I couldn't give you full credit and so on). Then, make sure you don't repeat the same mistakes in December.
More responses to Professor George on the slippery slope to polygamy:
Two more response are now available to Professor Robert George's argument that there is no objection to polygamy "as a matter of principle" once gay marriage is accepted. Philosophy professor John Corvino writes:
The issue is whether being a gay-rights advocate inherently “entails abandoning any principled basis for understanding marriage as the union of two and only two persons,” as George puts it. And the answer to that question is obviously “no.” [Jonathan] Rauch is a clear counterexample: he’s a gay-rights advocate who adduces general moral principles to oppose polygamy.
Why does George claim otherwise? The answer has to do with his confusion about what it means to have a “principled” objection to something. More specifically, he confuses having “a principled objection” with having “an objection in principle.” The difference is subtle but important. To have a principled objection is to base one’s opposition on principles (rather than simply to assert it arbitrarily). Rauch surely does this.
By contrast, to have an “objection in principle” is to object to a thing in itself, not on the basis of any extrinsic reason. Rauch doesn’t object to polygamy “in principle”; he objects to it for being harmful, and if it weren’t harmful he presumably wouldn’t object to it.
...
This distinction is important, because once one moves from “no objection in principle” to “no principled objection,” it’s a short slide to “no serious objection”—and thus a bad misrepresentation of the position of mainstream gay-rights advocates.
So, to be clear: Rauch, Carpenter, Varnell, and others have a principled objection to polygamy, but not an objection in principle. But here’s the kicker: neither does George. For George’s natural-law position is based on the requirement that sex be “of the procreative kind.” And polygamy is very much of the procreative kind. Even if one accepts George’s nebulous “two-in-one-flesh union” requirement—which somehow allows [] sterile heterosexual couples to have sex but prohibits homosexual couples from doing so—nothing in that requirement precludes multiple iterations (and thus polygamy). If George wants to argue that polygamy is wrong, he’s going to have to appeal to the same sort of extrinsic principles that Rauch invokes. Either that, or he’s going to have to just baldly assert that marriage is two-person, period. If such ad hoc assertions don’t count as abandoning “principled” argument, I’m not sure what does.
Paul Varnell also disputes George:
In a co-authored article with one Gerard Bradley, George states that male-female marriage has an "intrinsic value" that "cannot, strictly speaking, be demonstrated" and that "if the intrinsic value of (opposite sex) marriage ... is to be affirmed it has to be grasped in noninferential acts of understanding."
That is about as close to acknowledging defeat as you can get without explicitly saying so. What if George Wallace had said that the superiority of the white race could not be demonstrated but could be "grasped in noninferential acts of understanding"? Certainly there was a sizable constituency for just such a view, but undemonstrable "noninferential acts of understanding" are a poor basis for creating public policy in a secular civil society.
Then too, Robert George and his colleagues have never explained very well what it is about their own requirement of a male-female polarity for marriage that excludes polygamy. It is hard not to suspect that George keeps harping on polygamy as an imagined consequence of same-sex marriage to distract attention from the far more obvious opening to polygamy his own principle entails.
Bon mot from my father Vladimir,
who's traveling from Houston to Austin today: Drang nach Austin.
P.S. Of course, there's nothing new under the sun. In January 1998, one Edward A. Cowan made the same joke on LIEDER-L.
Movie recommendations:
On previous trips to Europe, I saw (and later recommended) Bella Martha (released here as Mostly Martha) and Pani e tulipani (released here as Bread and Tulips). (Query: Go together like mint and juleps?) Sadly, Vaya con Dios — a road trip movie about monks (in modern times) and the redeeming power of a cappella — doesn't seem to have been released here, nor is it available on Netflix. Watch out for it, though. (See my previous posts about some of these movies here and here.)
New recommendations, from my recent trip to Moscow: Izobrazhaia zhertvu (Playing the Victim), which is basically Donnie Darko meets Hamlet. The title comes from the main character's occupation — he's a twenty-something slacker who makes a living playing the victim in police reenactments of crimes. The second movie I liked is Mne ne bol'no (It Doesn't Hurt), which is tough to describe. (Buddy movie with kids in St. Petersburg trying to make it as architects; romance with an eccentric girl; also a bit part by Nikita Mikhalkov.) In particular, I liked the song "Pozovi menia nebo" by Vadim Samoilov of the band Agata Kristi. At least It Doesn't Hurt has an English working title on IMDB, which may mean it might travel?
While I'm on the subject of Russian movies, here are some older Russian (Soviet-era) movies, both available on Netflix. Vokzal dlia dvoikh (Railway Station for Two) is excellent, and has a brief appearance by a young Nikita Mikhalkov. I think the star, Liudmila Gurchenko, looks a bit like Felicity Huffman. My mother was once confused with Gurchenko when she was in Moscow, so it all connects. Moskva slezam ne verit (Moscow Does Not Believe in Tears) is also pretty good. I enjoyed the title song, sung by Sergei and Tatiana Nikitin to words by the well-known Russian bard Yuri Vizbor (and which, having gotten it on CD, I've been singing over and over):
Alexandra, Alexandra, this city is yours and mine;
We've become its destiny — just look into its face!
Whatever there was at the beginning, it will ease all your sorrows;
And that's how the Moscow ring road became our engagement ring.
And moving on to non-Russian films, you have all got to see Wait Until Dark, the 1967 thriller starring Audrey Hepburn and also featuring Alan Arkin, Richard Crenna, and Efrem Zimbalist, Jr. Audrey Hepburn plays a blind woman who has to match wits against crooks who are trying to con her and later terrorize her in her apartment. Not only is it legitimately suspenseful — which I didn't expect of an Old Movie — but the blindness/self-reliance theme also makes this a very good Objectivist movie, similar to Million Dollar Baby. (My theory, by the way, is that Gilbert and Sullivan's Patience is also excellent for Objectivists on aesthetic theory.) On a different note, those who like Jane Austen, rather than watching the awful Keira Knightley movie, should try out the Indian movie Bride and Prejudice.
Related Posts (on one page): - Movie recommendations:
- Dispatch from Moscow:
Colorado Governor's Race:
The race for governor in the purple state of Colorado features Democrat Bill Ritter (former D.A. of Denver) versus Republican Bob Beauprez (U.S. Rep. of the 7th C.D., south and east of Denver). According to the Denver Post, Ritter recently told a meeting of "several members of the state's business elite" that he agreed with 38 of Owens' 47 vetoes in 2005. Award-winning political columnist (and retired 22-year legislator, and my father) Jerry Kopel calls on Ritter to disclose to everyone which bills he would vetoed. My father also urges the state legislature's Democratic leadership to "talk some sense into him about how far he can go in losing the Democratic base and alienating Democratic legislators or nominees in order to ensure funding from the 'business elite'."
Wednesday, August 23, 2006
Wall St. Journal on the housing market:
A very interesting piece, and quite different from the articles we were seeing a year ago at this time, with all quoted sources insisting that at worst the market was in for a "soft landing", but most arguing for continued 8% to 12% annual appreciation. Especially interesting is Bob Toll of homebuilder Toll Brothers stating that we are in a "hard landing." Toll raised eyebrows last July by selling tens of millions of dollars of his stock (noted here) while still insisting that he believed in his company's prospects. At the time, Toll shares were selling for around (a split-adjusted) $50 a share; they are now down to under $25. I reported on this blog last July that Toll, in what I think were unprepared remarks at a real estate summit, predicted a 20% correction at the high end, and I advised that "It's time to run for the hills." Toll now says that the market is much worse than he envisioned.
Advantage: Volokh Conspiracy!
Some practical differences between same-sex and multiple-partner marriages:
David Link, an attorney who has worked in the California legislature for eight years and has written for Reason and the L.A. Times, has followed the recent exchange among Professor Robert George, Jon Rauch, Maggie Gallagher, and me over gay marriage and polygamy. He has emailed me his thoughts on some practical differences between recognizing dyadic same-sex marriages and recognizing polygamous/polyamorous marriages.
Multiple partner marriages, he argues, would raise many issues simply not present in gay marriages:
Some recent events related to polygamy have brought the slippery slope argument back into prominence for gay marriage advocates. See reactions to Robert George here. The argument has, as a premise, that same-sex marriage is enough like polygamy that legislatures or courts could not distinguish them; if the first is approved, the second would likely follow. In Professor George’s words, there is no “principled” or “serious” argument that could accept same-sex marriage but not polygamy.
But there are differences between same-sex marriage and polygamy that would make it perfectly sensible for society – whether acting through a legislature, a vote of the people, or a court — to draw a line that includes same-sex marriage, but excludes polygamy.
The key difference can be found by asking a fairly simple question that gets very little focus in the current debate: in a polygamous marriage, who is married to whom?
Since polygamy is illegal in America, we seldom have reason to think about such an obvious question. But it’s at the heart of the reason some of us would be perfectly comfortable saying that polygamy is so different from same-sex marriage that the one could fit into our understanding of marriage, while the other does not.
The difference comes down to arithmetic. Same-sex marriages have the same dyadic structure that all heterosexual marriages now have. Each partner is married to the other, and only to the other. Their rights and obligations to one another, to any children they may have, and to any third parties who might have some interest in the relationship, such as banks, creditors, parties to contracts, etc., are usually quite clear.
That’s not true with polygamy.
In the dominant form of polygamy, where one man is married to several wives, he is, in some way, “married” to each one of the wives individually. But the exact boundaries of such relationships are unclear, and we have no modern experience to know how far they might extend.
But what about the relationships of the wives to one another? Are they similarly “married” to all the other wives in the marriage? Specifically, as a matter of public policy, are they legally married to one another the way a husband and wife are under current marriage law?
Stay with that question. If the answer is “yes,” then if the husband died, would the wives continue to be married to each other? Why or why not? For those who find same-sex marriage objectionable, why wouldn’t those relationships among the wives be same-sex marriages? In ancient cultures where women may have had fewer rights than men, such questions might never have come up. But they would be inevitable in today’s world if polygamy were to be seriously debated.
And every question like these leads to others. Assume the husband is alive, but relationships with him sour. Could some or all of the wives divorce the husband, but continue to be married to one another? Could they divorce one another? Again, why or why not? And if the answer is “yes,” how would that work? Who files what papers, naming whom? Would the various partners choose up sides in the ensuing divorce proceedings, and how would a court deal with that?
Another question related to divorce: Could an individual wife file for divorce of only herself, or would a divorce petition dissolve the entire marriage? What about if it’s the husband who wants a divorce? Should the rule for him be different than the rule for the women – i.e. could his successful petition for divorce dissolve the entire marriage, while a wife’s successful petition only removed her from the marriage? Or consider the situation where one woman is married to several husbands – or where several women are married to several husbands. Again, who would be able to divorce whom, and why? How would such actions affect other spouses?
And – central to the present debate — what about the children? If the husband – or one of the wives – wanted out of a polygamous marriage, what would the rules be for who gets custody of the children – and who is responsible for child support? Do the other wives have a claim to custody, along with their husband? What about child support payments? All the wives would almost certainly have some long-term relationship with children of each of them. Would it be good for the children to cut off those relationships because one wife wanted out of the marriage?
The questions related to divorce illustrate only the legal and policy problems within the marriage. But what about the critical question of how outside parties would be affected by polygamous marriages – no small thing in the modern world. There are clear rules when a contractor signs up to remodel a married couple’s kitchen about the couple’s legal responsibility for payment. But what about a contractor remodeling a polygamous family’s kitchen? If, as in “Big Love,” each wife has her own house, and the one who gets the remodel can’t or doesn’t pay, can the contractor go after a wife with sounder finances? Again, why or why not?
The fact that we do not know the answers to these questions – and thousands of others – is at the core of why polygamy is dramatically different, as a matter of public policy, from same-sex marriage.
If anyone wants to argue in favor of polygamy – and for the present such advocates still remain either imaginary or well out of the political mainstream – they will have a lot more questions to answer than advocates for same-sex marriage do. That is because of a very simple reason. Same-sex marriage has the arithmetic on its side. It is mutual, binary, and fully capable of being subject of all existing laws related to marriage.
Polygamy would require a genuine rethinking of marriage. And its multiplicity truly does have the capacity to undermine marriage: psychologically, culturally and legally. In fact, polygamy offers exactly the kind of concrete danger to marriage as we know it that same-sex marriage opponents have only been able to insinuate. This difference between same-sex marriage and polygamy can serve as at least one sound basis to argue that same-sex marriage is consistent with marriage as we understand it in today’s world, but polygamous marriage is not.
These issues could be addressed, special rules worked out to accommodate the many differences between dyadic and multiple-partner marriages, etc. But they are large and numerous enough to suggest that the slope is a lot more sticky than some people suppose.
UPDATE: A number of commenters have suggested that the problems David Link points to have been addressed in one way or another by societies that have practiced polygamy for thousands of years — and thus the problems are not insuperable. "Polygamy has been quite common in Islamic societies," notes one commenter, and surely we can learn from them. But this only exposes a much larger problem that separates the recognition of same-sex marriage from the recognition of polygamous marriage: sex equality. Marriage in the West has evolved over the past 150 years or so into an equal partnership, where both man and woman have more or less equal rights and responsibilities. The legal distinctions between men and women in marriage have been largely erased. In the traditionalist, pre-modern societies where polygamy flourished this norm of sex equality was simply not present. Gay marriage, by contrast, is fully consistent with our commitment to sex equality. In fact, it is partly an outgrowth of that commitment.
Making polygamy (and multiple-partner marriage generally) work in a modern society where sex-equality norms are strong would not be a simple matter of transferring the legal rules from these other, earlier societies to ours. It would require a great deal of adjustment, both to our marriage practices and to the historical practice of polygamy. Again, the point is not that these adjustments could not be made — with a whole lot of effort they could be, at some cost. The point is that having to make them separates the issue from dyadic same-sex marriage in a way that makes either the logical or political/ideological slide seem unlikely.
The practical issues Link raises are not the only reason there's no slippery slope from gay marriage to multiple-partner marriage, as I have written previously here and here, and Eugene has discussed in a very thorough law review article on the subject, but they are a part of it.
The Catholic Church and Evolution:
The U.K. Daily Mail reports that "Pope Benedict XVI has sacked his chief astronomer after a series of public clashes over the theory of evolution":
Although the Vatican did not give reasons for Father Coyne’s replacement, sources close to the Holy See say that Benedict would have been unhappy with the priest’s public opposition to intelligent design theory.
Father Coyne’s most notable intervention came after Cardinal Christoph Schonborn of Vienna, a former student of the Pope, put the case for intelligent design in an article in the New York Times in July last year.
The cardinal, responding to an explosive debate on evolution in the US, had argued that Darwinian concepts of "random variation and natural selection" were incompatible with the Catholic belief that there is a divine purpose and design to nature.
The cardinal also said that the evolution had become an atheistic ideological dogma that was being used against the Church.
The views of Cardinal Schonborn, one of the authors of the 1992 Catechism of the Catholic Church, were criticised just a month later in an article written by Father Coyne for the London-based Tablet magazine.
God "is not constantly intervening, but rather allows, participates, loves," Fr Coyne wrote, adding: "Religious believers must move away from the notion of a dictator or designer God, a Newtonian God who made the universe as a watch that ticks along regularly...."
I don't have to add much to the story, but if you're interested in reading the astronomer's article that the story mentions -- an article that, as I read it, is much more about theology than about science as such -- I found it here.
Lucrative Job Opportunity for GMU Law Students:
Looking over my research budget, it looks like I can hire as many as 2 or 3 more research assistants this semester than I originally expected. So if you are a GMU Law student and you read the VC regularly, as I know some of you do (perhaps because we're not assigning you enough classwork to keep you busy!), you may want to take advantage of this incredibly lucrative and prestigious job opportunity. You may also be able to choose to work for credit rather than pay. Please e-mail me (with copy of resume) if interested. To get an idea of the kinds of projects I use RAs for, you can check out my recent and forthcoming articles on my SSRN author page.
Sadly, I am not allowed to use RAs to research VC blog posts!
The War on Drugs vs. The War on Terror
Apropos David Kopel's recent post on the conflict between the War on Drugs and the War on Terror, I blogged about a related example of this contradiction a few months ago.
Churches and Eminent Domain:
In this recent Findlaw column, Cardozo Law School Professor Marci Hamilton criticizes Senator Ted Kennedy's proposal to give church property special protection against condemnation.
I agree with Prof. Hamilton's bottom-line conclusion: that church property should not be given greater protection against takings than other property owners enjoy. I also tentatively agree that Kennedy's proposal may violate the Establishment Clause, though this issue is really outside my area of expertise.
However, I think Hamilton is mistaken in her claim that church property is not unusually vulnerable to "economic development" condemnations of the sort that the U.S. Supreme Court upheld in Kelo v. City of New London. To support her claim that "there is no real issue when it comes to churches and eminent domain," Hamilton relies on an excellent forthcoming article by Notre Dame law professor Nicole Garnett. Hamilton claims that the Garnett article proves that local governments usually try to avoid condemning churches because of the likelihood of strong political opposition.
However, the relevant part of the article (pp. 13-23) proves no such thing. It focuses principally on the city of Chicago's retreat from efforts to condemn Catholic churches in the 1950s and 60s. The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM.
The Becket Fund for Religious Liberty Amicus Brief in Kelo cites numerous cases where church property has indeed been targeted for condemnation, almost always in places where the denomination in question was less politically powerful than the Catholic Church in 1950s Chicago. It also explains why church property is unusually vulnerable to economic development condemnations that seek to increase economic growth or raise tax revenue:
Because religious institutions are overwhelmingly non-profit and tax-exempt, they will generate less in tax revenues than virtually any proposed commercial or residential use. Accordingly, when a municipality considers what properties should be included under condemnation plans designed to increase for-profit development and increase taxable properties, the non-profit, tax-exempt property of religious institutions will by definition always qualify and always be vulnerable to seizure.
Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.
Ultimately, I believe that the best way to prevent targeting of churches for condemnation is to limit the power of eminent domain more generally, by abolishing "economic development" takings. Alternatively, states could give heightened protection to religious and secular nonprofit institutions alike. The meeting place of a secular civic group or, for that matter, that of an atheist organization, is no less worthy of protection than are churches. This approach would reduce the special vulnerability of church property without raising the sorts of Establishment Clause concerns that bedevil Ted Kennedy's proposal. But we should not ignore the evidence that churches (at least those belonging to politically weak denominations) are indeed vulnerable to economic development takings.
NOTE: I have followed Prof. Hamilton in using the word "church" as a synonym for all property owned by religious organizations, including non-Christian ones. Obviously, houses of worship belonging to religious minorities are no less vulnerable than Christian ones, and in some cases more so, if the minority in question is locally unpopular.
War on Drugs versus War on Terrorists:
During the recent war against Israel, Hezbollah used night vision equipment which had been supplied by Iran, as detailed in a new article by the Jewish Institute of National Security Affairs. Iran had obtained the equipment from the United Kingdom to "bolster Iranian efforts to combat heroin smuggling across the Afghan border as part of the UN Drug Control Program." The U.K. was extremely foolish to expect the Iranian tyrants to keep their promises not to divert the equipment to military use.
This is far from the only example of how excessive zeal in the drug war undermines the national security interest of democracies. A similar problem is evident in Latin America, as Mike Krause and I wrote in "A Foreign Policy Disaster," a chapter in the book The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004).
The Unpersuasive Ethics Claim Against Judge Taylor:
The New York Times has a report on the ethics issues raised by Judicial Watch in the NSA surveillance case. It turns out that Judge Taylor, the district court judge, is a trustee and officer of a charitable group that gave $125,000 to the ACLU, the plaintiff in the case. According to the legal ethics experts consulted by the Times — Profs Lubet, Gillers, and Rhode — Judge Taylor should have disclosed her relationship, although recusal was not necessary. This judgment seems pretty sensible to me, but I do take objection what some will take as the broader gist of the story as reported in the Times and elsewhere. To the extent that the story raises the question of whether Judge Taylor was biased in favor of the ACLU because of some kind of financial relationship with it, that suggestion strikes me as totally bogus. I don't think Judge Taylor wrote a good opinion, but I think it's very far-fetched and rather insulting to her to suggest that her opinion was influenced by some kind of actual conflict of interest.
Never Make the Mistake of Believing Your Own Metaphors:
A commenter on my Income Tax and the Sanctity of Property in Our Constitutional System writes:
You are ALL missing the point. Compensation for a tortious wrong is not income. If it were taxed, then you would not be made whole. Let's say someone negligently chops off your arm and then pays you a settlement that perfectly compensates you for the loss of your arm. There is no income. There is no gain. The money is just compensation for the loss of your arm. That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right.
Let's follow the flow of the argument. The argument begins with a sensible claim about the tort system: If compensation for a tortious wrong were taxed, then you wouldn't be made whole. To give a concrete example, say I have $100,000 in assets; I pay no income tax on that capital. Say then that someone steals the $100,000, and I get it back from him, whether through litigation or otherwise -- I'm no better off than I was before the theft, so it's hard to see why I should end up just with just $60,000, after the state and federal governments get their income tax cut. If we treat personal injury causing $100,000 in pain and suffering as similar to the theft of the $100,000, the principle of tort law is to try to put me back as much as possible into my pre-injury condition, by awarding me $100,000 in damages. Taxing those $100,000 would leave me worse off than I would have been but for the injury (assuming that $100,000 is indeed the compensation that leaves me as well off as before, and thus accepting the theory that the money compensates me for pain). Allowing this money to be taxed would thus undermine the goals of tax law.
Then the argument continues, appealing to the logic of income tax law and not just tort law: "There is no income. There is no gain. The money is just compensation for the loss of your arm." Because the income tax generally taxes income, the argument goes -- stuff you get on top of what you had before -- and because the compensation doesn't really give you more than you had before, taxing the compensation is inconsistent with the underlying principles of income tax law as well as of tort law. So far so good.
And then the argument abruptly plummets from sensible, albeit necessarily cursory, policy argument into sheer formalistic zaniness: "That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right."
"That money = your arm"?! Equals? Not just that money compensates you for the loss of your arm, but actually equals it?
That statement is simply and obviously false. It may represent a metaphor at the heart of tort law, but metaphors aren't reality. They may help us understand reality, because in some ways they represent reality. But in other ways they depart from reality (that's why they're metaphors).
"That money = your arm" may make sense for the purposes of understanding how tort law (or even tax law) often treats compensation for personal injuries. But you can't use it with arguments about the law or morality of dismemberment, because those arguments work only with actual arms, not just with metaphorical equivalents of arms. After all, if "that money = your arm," does it mean that if you get the money and then go bankrupt, your creditors can't recover part of that money, given that creditors can't physically dismember you? If "that money = your arm," and then you buy a house with that money, does it mean that "that house = that money = your arm," and you can't be required to pay property taxes on that house? I'd say "that way lies madness," but the madness actually lies at the very first step, which is treating "that money = your arm" as reality rather than metaphor.
Now this is an extreme sort of error; hardly anyone goes quite this far in believing his own metaphors. But I do think it's a helpful illustration of a general problem.
I'm often a formalist in the sense that I generally think that formal legal characterizations are often worth using. That something is called "speech" should influence the way we treat it, and even if we call other things than speech (e.g., waving a flag, wearing a cross, using sign language) "speech," once this characterization is accepted it may make sense to use it in a broad range of cases. But we should never forget that these labels are metaphorical, otherwise figurative, or just generally imprecise. We should never forget that in law, "X = Y" is often just a shorthand for "X is like Y in certain important ways" or "X should be treated like Y in certain important way," that in certain other ways X and Y can remain quite different, and that therefore treating them as genuinely equal is a recipe for massive error.
A classic legal fiction is said to be that for certain old English legal purposes the island of Minorca was treated as being "located within the parish of Mary-le-Bow in the ward of Cheap in the city of London." Yet even if that, within the English legal system, was a perfectly sensible way of dealing with certain kinds of procedural matters, you shouldn't try to walk there from the Houses of Parliament. "Think things not words," as Justice Oliver Wendell Holmes admonished, "or at least ... constantly translate [y]our words into the facts for which they stand, if [you] are to keep to the real and the true."
Human Rights Watch's Credibility--Not So Good:
HRW: "At the sites visited by Human Rights Watch—Qana, Srifa, Tyre, and the southern suburbs of Beirut—on-site investigations did not identify any signs of military activity in the area attacked, such as trenches, destroyed rocket launchers, other military equipment, or dead or wounded fighters."
It apparently raised no eyebrows among HRW staff that of the fifteen "civilian" victims in Srifa it identifies in its report, all were men, and thirteen of them were of normal fighting age (17-35).
N.Y. Times, August 16th, 2006, at 9: "Mr. Kamaleldin, the Sreifa [same as Srifa] official, estimated that up to two-thirds of the town's homes and buildings were demolished, leaving more than 43 people buried in the rubble. A majority of them were fighters belonging to Hezbollah and the allied Amal Party, residents said."
Of course, Human Rights Watch claimed that its sources are credible, and even claimed that "[a]ll cases for which Human Rights Watch could not find eyewitnesses, survivors, or other credible sources of information have been excluded from this report." Right. I'm sure the "eyewitnesses" and "survivors" who stayed in Srifa during the war had no ties to the Party of God (Hezbollah), and no incentive to lie on its behalf.
HRW's report with the false information is still on its website. Any bets as to whether Kenneth Roth will issue a correction, and an apology?
Thanks to reader Larry Rothenberg for the tip.
UPDATE: Dershowitz at the Huffington Post has much more on HRW, concluding that it is repeating "demonstrably false conclusions."
*Here's the evidence that HRW had for Israel "indiscriminately" attacking civilians in Srifa: According to a villager who was in the village at the time of the attack:
There was no Hezbollah in the neighborhood. This neighborhood is known to be partial to the Communist Party, not Hezbollah. There are no Hezbollah people living there. Hezbollah does not have a need to be in this neighborhood, because we are 40 kilometers away from Israel, and the neighborhood looks out over the sea, it is not a strategic place.
Two additional villagers told Human Rights Watch in separate interviews that Hezbollah had not been present in the neighborhood around the time of the attack. "Except for one person, who didn't even belong to Hezbollah, no one in that neighborhood knew how to handle weapons," said Hussain Nazal. He added, "If they hit some houses that belong to Hezbollah we would understand, but this is not the [Hezbollah] neighborhood."
Apparently, HRW thinks it's okay to accuse a country of war crimes based solely on hearsay evidence of male "villagers", acquired while the war was ongoing, who are hanging out in a POG stronghold during an Israeli bombardment, after being warned to leave. Even if these villagers were not POG affiliates (but maybe they are) or even sympathizers, how do you think Hezbollah would have reacted if they had been quoted in an HRW report during the war as stating that Israel was only carefully targeting POG strongholds? I certainly wouldn't issue life insurance to them under such circumstances. Related Posts (on one page): - Human Rights Watch's Credibility--Not So Good:
- The Decline of Amnesty International:
Searching for a European Power Willing to police the Cease-Fire in Lebanon.--
The Belmont Report discusses the difficulties that European powers are having in agreeing to pacify Lebanon until someone else pacifies it first:
Though many people reflexively disagree with President Bush, his statement that the ceasefire in Lebanon under UNSC Resolution 1701 will collapse unless a major European country makes a substantial contribution of troops to an expanded UNIFIL force will probably meet with wide agreement. It is now hoped that Italy will fill the gap left by the sudden refusal of France, co-sponsor of 1701, to send more than 200 men to the contingent. The problem is that the Europeans have no intention of disarming Hezbollah by force, which would require high intensity combat operations and politically unpopular casualties. France actually wanted an assurance that Hezbollah would be "safed" before they made their appearance. MSNBC reported: "French officials on Tuesday (Aug 15) insisted Paris would resist leading a bolstered international force in southern Lebanon without Lebanese government assurances that Hizbollah, the militant Shia group, would be disarmed. ... French officials accept that disarming Hizbollah would not happen overnight but say an international force could not be deployed until a demilitarized zone was created."
Nor would the "international community" leave the disarmament of Hezbollah to Israel, even under its residual right to self-defense under 1701. The UN actually warned Israel that it was violating the ceasefire simply by using force to interdict arms smuggling from Syria -- arms meant to attack Israel.
UN Secretary General Kofi Annan views the Israel Defense Forces' commando operation near Baalbek over the weekend as a violation of the cease-fire agreement, UN envoy Terje Roed-Larsen told Foreign Minister Tzipi Livni during their meeting in Jerusalem Monday. "If you discovered arms smuggling, you could have complained through diplomatic channels," Larsen told Livni.
There was something of the air of unreality about Italian Foreign Minister Massimo D'Alema statement on Tuesday that "From Israel, we expect a renewed effort, this time truly binding, to respect the ceasefire. It's fair to expect that Hizbollah put down their weapons, but we cannot send our troops to Lebanon if the (Israeli) army keeps shooting."
Ann Althouse on the NSA Case in the NY Times.--
In an op-ed in the New York Times, Ann Althouse argues:
TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.”
As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . .
Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”
But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .
This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.
If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.
There’s irony for you.
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