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Saturday, October 14, 2006
More on Al-Qaeda Adam, Axis Sally, and Tokyo Rose,
in my op-ed in today's L.A. Times. Incidentally, I'm pretty happy both with the op-ed and with my original post on the subject; but comparing the two, I think, helps show the differences in the genres, and the strengths and weaknesses of each. My blog post would never have been published as an op-ed (likely quite rightly, given the generalist audience of the L.A. Times). And if I had published the op-ed as a blog post, I think it would have been less interesting and helpful than the earlier post, which went into more detail on the First Amendment issue, and which focused more on presenting various possible legal rules rather than just quickly saying which one I thought was right. Related Posts (on one page): - More on Al-Qaeda Adam, Axis Sally, and Tokyo Rose,
- Al-Qaeda Adam, Axis Sally, and Tokyo Rose:
Interior Blocking Blogs:
The Federal Times reports that the Department of Interior is deliberately blocking computer access to blogs, among other sites deemed to be inappropriate.
The Interior Department is blocking access to blogs on government computers after its inspector general found employees were wasting time on pornography, gambling and auction sites.
Blogs — Web sites providing regular updates on a variety of topics — are among blocked sites because some include sexually explicit language, libelous or defamatory commentary, and outrageous language, said Frank Quimby, spokesman for the agency. . . .
“People shouldn’t be having access to blogs — at least on government computers on government time,” Quimby said.
As for accusations of ideological filtering, the story quotes Quimby saying it is only a matter of time before access to all blog sites is blocked. (Link via Gates of Vienna.) Related Posts (on one page): - Interior Blocking Blogs:
- Interior's Internet Problems:
Roberts Reconsiders Nuremberg Analogy:
Grist's David Roberts has concluded it was wrong to suggest Nuremberg-like trials for climate change deniers. He gives three reasons: First off, never violate Godwin's Law. It's a law for a reason.
Two, the Nuremberg trials resulted in executions. I'm opposed to state-sanctioned execution in all cases, but would certainly never advocate it merely for the crime of being a lying scumbag.
Third — and more to the point — Nuremberg was primarily about prosecution and punishment. I'm not a particularly vindictive person, and I'm not that interested in retribution. What I'm interested in is the truth: that the truth be aired; that those who have lied own up to it and be held accountable; that those who suffered as a result of the lies be allowed to tell their stories.
For these reasons, a far better analogy for what I had in mind would have been South Africa's Truth and Reconciliation Commission, or perhaps what the Germans call Vergangenheitsbewältigung. Roberts continues, noting that his larger concern is the notion of truth in public debate: The public is losing hold of the notion that there can be such thing as "the truth." They're coming to accept that there is our truth and their truth, and no way of weighing them against one another. In that atmosphere, persuasion falls by the wayside, and only the raw struggle for political power remains. Epistemology becomes ideology. That is precisely what the leadership of the modern American right wing wants.
That's what I most resent: not the lies themselves, but the concerted effort to derogate all sources of independent, verifiable information — to derogate the very possibility of such information. The attacks on science, the attacks on the media, it's all part of the same project. Given these comments, I assume Roberts will do his best to eliminate ad hominem attacks from the pages of Grist in the future. For instance, scientific claims will be evaluated on their merits, and not on their sources of funding. If so — and the example is followed elsewhere — this would be a signficant step forward in public discussions over environmental risks.
In a related vein, the comment thread to Roger Pielke's post that initiated this discussion indicates that the phrase "climate change denial" was intended (at least by some) to draw a parallel to holocaust denial. (See John A.'s 10/12 comment at 3:25pm and Roger Pielke's 10/12 comment at 8:44pm).
Friday, October 13, 2006
Iraqi Oil Trusts - Answering Some Objections:
Jane Galt/Megan McArdle raises some objections to the Iraqi oil trust plan endorsed by Hillary Clinton, Vernon Smith, and yours truly (while accidentally confusing me with Orin Kerr). Some of her points have merit, but all share the common flaw of failing to consider the alternative: largely unrestricted government control of Iraq's oil wealth.
Here are Jane's objections, and my responses:
1) There is no good record of who is an Iraqi, so people will flood across the border to get in on it.
A variety of ID requirements could be set up to deal with this problem. I am not expert enough to determine which is the right approach, but it is neither an uncommon nor a completely insoluble issue. As commenter Lev points out, this issue was in fact handled during the 2005 Iraqi elections by requiring voters to present Saddam-era ration cards as a form of ID.
More importantly, however, the same issue arises with distributing any government benefits that the Iraqi government might choose to create with its oil money if that revenue remains under unrestricted government control. Indeed, the creation of an oil trust would increase the government's incentives to establish at least a moderately effective way to identify citizens, since voters would have an important reason to care about the issue. Will there be some fraud (probably even a lot)? Undoubtedly. But that has to be weighed against the massive corruption that currently exists in Iraqi government and is fostered by the ability of the state to dispense patronage as a result of its unrestricted control of Iraq's oil wealth.
2) The financial infrastructure for distributing the proceeds doesn't exist, i.e. most Iraqis can't cash checks and cash tends to disappear.
This problem, too, afflicts the status quo as well. Any benefits the Iraqi government currently dispenses to the population by drawing on its oil wealth also require the distribution of either checks, cash, or in-kind benefits, all of which require infrastructure to deliver and store. Moreover, it is not completely true that there is no financial infrastructure in Iraq. The CPA was able to help a number of private banks start operations. If necessary, the US or the Iraqi government could arrange to have the money held in Swiss or other offshore bank accounts, with the transaction fees kept low because of economies of scale.
Finally, poor people in underdeveloped nations have a wide range of ways to store money and ensure that it does not "tend to disappear," including community credit unions, communal organizations of various types, and micro-lending organizations such as the ones set up by this year's Nobel Peace Prize winner. These institutions all have flaws and none are as secure as, say, keeping your money at the Bank of America. But it sure beats letting all the money stay in the hands of a corrupt, self-dealing, and often incompetent government.
3) The taxation infrastructure and culture for getting the necessary money to run the government doesn't exist, and the government will quickly run out of cash.
Again, I don't see how this will be less of a problem in the status quo. Moreover, if necessary, the government could simply tax the payments to the Iraqi people before distribution (much like income tax withholding in the US). So long as the tax rate is publicly announced and transparent, this arrangement need not lead to corruption or overtaxation. And it doesn't require any more "taxation infrastructure and culture" than the status quo.
4) It will function as a giant welfare system, undermining civil society. There will be huge incentives to have extra babies.
Since people will get the payments regardless of their other sources of income, there will be little incentive to refrain from working, although I suppose there might be some substitution of leisure for income. Moreover, as a practical matter, Iraq's oil revenues probably won't be great enough to give the average citizen a cushy lifestyle (even by Iraqi standards) by living off oil trust payments alone. When and if jobs become available, there will still be plenty of incentive for Iraqis to work. It is also worth noting that much larger per capita oil trust payments than any realistically likely in Iraq have not led to a "giant welfare system" in Alaska and Norway. Finally, we again have to consider the alternative: if the government retains exclusive control of all oil revenues, it will have tremendous incentives to distribute them in such a way as to create "a giant welfare system" of its own in order to create a class of voters dependent on government largesse and therefore inclined to vote for politicians who will keep the dole money flowing. And that's not even to mention the extensive corruption, nepotism, and ethnic and religious favoritism that currently bedevil the government's allocation of oil funds.
As for the incentive to have extra babies, that may indeed be an issue. But it could be handled simply by reducing payments for children beyond, say, the first two or three. If necessary, the system could even forbid additional payments for children above a certain number.
UPDATE: Jane comments: "I think it's a fine idea . . . I was just wondering what the objections might be." In fairness, I should have mentioned that her original post was ambiguous as to whether she supported Iraqi oil trusts or not. However, my purpose was less to engage in a debate with Jane than to address the types of objections that might be raised against the Iraqi oil trust proposal. And the points Jane makes are certainly important ones to consider.
We're Zaftig:
TaxProf gives Blog Juice Ratings for various lawprof blogs, calculated using a mix of "Number of Bloglines subscribers (40%)[,] Alexa rank (15%)[,] Technorati ranking (30%)[,] Number of inbound links via Technorati (15%)." InstaPundit is of course #1 (8.7), but we're at our usual #2 (8.1) — woohoo! — followed by the divine Mme. Prof. Althouse (7.2). Visit the TaxProf link for the whole list.
St. George Tucker versus Saul Cornell on the Second Amendment:
Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings,” 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading. In a new draft article, "St. George Tucker’s Second Amendment: Deconstructing 'The True Palladium of Liberty'," Stephen P. Halbrook takes the reader step-by-step through Tucker's monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker's Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis.
Muddled Thinking at Brandeis:
Readers may recall that (my alma mater) Brandeis University embarrassed itself a bit last Spring by hamhandedly taking down a previously-approved library exhibit created by a student of anti-Israel paintings by Palestinian children. A faculty committee has gently criticized the university for this action, while praising the university for more generally promoting an open dialogue on the Palestinian-Israeli conflict.
"We felt [the removal] was a departure from the administration's own record of promoting and fostering discussion and dialogue [on] the Middle East and in other matters," said Prof. Paul Jankowski (HIST), the chair of the Exhibitions and Expressions Committee. Jankowski cited several examples of the administration's efforts to foster healthy discussion, including the University's recent, hotly criticized decisions to hire the Palestinian pollster Khalil Shikaki, who has been accused of having ties to terrorism, as well as the decision to partner with the Palestinian Al-Quds University and to present the playwright Tony Kushner-who has been criticized for his views on Israel-with an honorary degree.
This seems to me to be mixing apples and oranges in a rather foolish and counterproductive way.
The problem with taking down the exhibit was not that it failed to foster healthy discussion, but that a (non-religious) university, as such, should not enforce an official orthodoxy on any matter of public concern, and thus should not intervene in any way to stifle any student's expression of his opinion, except via content-neutral time, place, and manner restrictions. Ironically, Jankowski seems to be praising the university for hiring a pro-Palestinian professor, and for giving the anti-Israel Kushner an award, because this "fosters discussion" of the Middle East, in other words giving some university impramatur to the Pro-Palestinian, anti-Israel side of things. Yet Brandeis as a university has no obligation to "promote" or "foster" discussion of any given topic, much less to ensure that its faculty and even less so its honors are distributed in a way that gives equal (or any) weight to both sides of any given controversy. Indeed, it is entirely consistent to criticize Brandeis for taking down the student exhibit, and also for giving an honor to Kushner; indeed, I have done both on this blog. Moreover, as a Brandeis alum who follows events there reasonably closely, I can state with some measure of confidence that the range and depth of opinion expressed there with regard to the Israeli-Palestinian conflict is far broader than with regard to most other major public issues; I'm quite certain there are far more professors and students who express sympathy for the Palestinian side, than, say, support the invasion of Iraq or argue that abortion should be illegal. Somehow, I doubt that any Brandeis professors are going to argue that the university has an obligation to "promote dialogue and discussion" on those issues.
Meanwhile, Harry Mairson, chair of the Faculty Senate, who was not a member of the committee, said he spoke only for himself, as he addressed the faculty first Thursday. Mairson said the administration's "move on" stance is an insufficient response to the controversy, which occurred because the exhibit made Israelis and by extension Jews, "look bad." "That's why this crisis, at Brandeis, attracted such public notoriety-free speech issues at universities don't make news like this," he said.
Professor Mairson obviously doesn't read this blog, which discusses many such controversies, some of which attract much more attention than the incident at Brandeis. For example, he is apparently not aware of the analogous (but more serious, because it involved a state university and thus First Amendment rights) free speech controversy last Spring at Penn State, involving the suppression of pro-Israel speech, that received far more attention than did the incident at Brandeis.
A Thought on the Shaming Punishments Debate:
There's an interesting discussion going on in the blogosphere about shaming punishments, criminal punishments designed to embarrass or shame offenders. See, for example, this post by Dan Markel (against shaming punishments), this response from Doug Berman (not against, if not exactly for), and this reply from Dan. If I'm not mistaken, I think Dan's basic approach is expressed in this tnr.com online piece in 2004, and it's worth quoting his argument: [S]haming offenders is simply wrong, regardless of whether it is labeled rehabilitative or punitive. The very goal of shaming . . . is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn, and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no. Such punishment involves an unacceptable form of preening and immodest sanctimony. What's more, the condition imposed here constitutes a coerced self-laceration that conjures images of the denunciation rallies and ritual debasements of history's least liberal regimes. I'm basically with Doug Berman that this isn't persuasive. I think that so-called "shaming punishments" are less of an affront to human dignity than most other punishments, such as severe prison sentences. I've been to a maximum-security prison, and I find it hard to understand the notion that spending a few hours holding a sign (the punishment in the Gementera case) is more an affront to human dignity than a long sentence in max. [See Update below] More broadly, I wonder if Dan isn't overlooking something important about shaming punishments: Don't they rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person's connection to the community enough to react to the offender. Put another way, only a community that values its members would find shaming punishments punishment at all. If no one cares about the offender, and the offender doesn't care about anyone else, there is no shame and no punishment. In that case, they can just lock him up and throw away the key. To be clear, this doesn't mean that shaming punishments are good; I don't see myself as an affirmative proponent of them. Like any type of punishment, shaming punishments may be appropriate in some cases and will be inappropriate in others. My point is only that I find flat opposition to them based on human dignity concerns to be unpersuasive. (I guess that means it's you and me on the island together, Doug.) UPDATE: Dan responds to Doug in this post about the prison point; Dan's response, as I understand it, is that he is against both shaming punishments and long prison sentences, so the fact that long prison sentences are also equally or even more troubling doesn't mean that shaming punishments are okay. In other words, opposition to one piece of the status quo should not be seen as acceptance of the rest, and the ultimate goal, as Dan puts it in a comment, is "ensur[ing] that all punishments, including the conditions of confinement, are compatible with human dignity." That's certainly a fair response, even if I don't ultimately agree with Dan's framework or conclusions. For the fuller versions of Dan's arguments, see here.
Shocking, If True:
There may well be other facts -- threats, face-to-face insults that seemed likely to start an imminent fight, or some such -- that would make the story different, and the quote from Dr. Edkins suggests some such might be present (though the rest of the story seems to suggest otherwise). But if the claim that the schoolgirl was arrested for refusing to sit with the Asian students (published in the Daily Mail (U.K.)) is fairly accurate and complete, then it's quite stunning:
A teenage schoolgirl was arrested by police for racism after refusing to sit with a group of Asian students because some of them did not speak English....
The 14-year-old [Codie Stott] - who was released without charge - said it had been a simple matter of commonsense and accused the school and police of an over-the-top reaction....
Codie was attending a GCSE science class at Harrop Fold High School in Worsley, Greater Manchester, when the incident happened.
The teenager had not been in school the day before due to a hospital appointment and had missed the start of a project, so the teacher allocated her a group to sit with.
"She said I had to sit there with five Asian pupils," said Codie yesterday.
"Only one could speak English, so she had to tell that one what to do so she could explain in their language. Then she sat me with them and said 'Discuss'."
According to Codie, the five - four boys and a girl - then began talking in a language she didn't understand, thought to be Urdu, so she went to speak to the teacher.
"I said 'I'm not being funny, but can I change groups because I can't understand them?' But she started shouting and screaming, saying 'It's racist, you're going to get done by the police'." ...
After questioning on suspicion of committing a section five racial public order offence, her mother Nicola says she was placed in a bare cell for three-and-a-half hours then released without charge....
[School insiders] say [Codie's] comments afterwards raised further concerns, for example allegedly referring to the students as "blacks" - something she denied yesterday....
Headteacher Dr Antony Edkins said: "An allegation of a serious nature was made concerning a racially motivated remark by one student towards a group of Asian students new to the school and new to the country."
"We aim to ensure a caring and tolerant attitude towards people and pupils of all ethnic backgrounds and will not stand for racism in any form." ...
Thanks to Terence Edwards for the pointer.
Nachos that do not destroy you make you stronger:
A great story about the true etymology of "nachos." And, the Nietzsche Family Circus, which "pairs a randomized Family Circus cartoon with a randomized Friedrich Nietzsche quote."
(Hat tip to Paul Hsieh, twice: For nachos via GeekPress, and for Nietzsche via NoodleFood.)
Selective Concern over Judicial Conferences:
For the past several years Community Rights Counsel has been crusading against privately funded conferences for federal judges. I have been critical of this campaign (see, e.g., here). Based on my read of the charges, and my attendance at some of the conferences that have been criticized, I think that CRC's claims that such conferences pose an ethical problem for judges are unfounded. If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns.
CRC purports to be motivated by a concern for judicial ethics, rather than a specific ideological agenda. This article by Ed Whelan casts doubt on that claim. While targeting conferences hosted by George Mason University's Law and Economics Center or the Foundation for Research on Economics and the Environment in conjunction with Montana State University, CRC failed to critique conferences run by the Aspen Institute. CRC's Doug Kendall claims the relevant Aspen seminars have "a much more balanced profile" than those he attacks, but Whelan's article casts doubt on that claim too. If anything, the Aspen seminars have been less balanced. But this is a sideshow anyhow, as CRC has never suggested that balanced programs would obviate its concern about the private funding of such programs. If privately funded seminars for federal judges are a problem — and I do not beleive they are — then there is no reason to let Aspen off the hook.
UPDATE: In the comments below, Steve Lubet takes issue with my argument that: "If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns." By that reasoning, very little short of outright bribery would be an ethical concern. You could make the same claim about: most ex parte communications; investments in parties to the litigation; gifts from litigants; prior firsthand knowledge of fact in dispute; and relatives appearing as counsel. Yet we have statutes and rules — that are by and large uncontroversial among the judiciary — that either prohibit such conduct or provide for disqualification. See also his comment here.
I don't think the analogy is apt. As another commenter named Steve notes, these rules all involve parties to litigation appearing before the judge or otherwise concern pending cases. CRC's criticism of the various judicial conferences is not so narrow — and if it were they would have no case, as these seminars (with only one exception of which I am aware) typically involve presentations by other judges and academics on broad legal and economic issues, not presentations by representatives of litigants. Thus, the bulk of CRC's attacks have focused on the content of these seminars or the sources of funding — even though corporate funders are typically not present at the conferences.
My point is that if simply attending privately funded seminars and hearing presentations is a concern — as CRC suggests it is — then we should be concerned abot judges' ability to evaluate and assess the arguments put forward in their courts by litigants. In the end, I find CRC's arguments unpersuasive — as, apparently, has the Judicial Conference, which recently adopted rules for such conferences far less stringent than CRC has sought.
FURTHER UPDATE: CRC's Doug Kendall comments here.
Interior's Internet Problems:
For months Interior Department employees were without web access — and the public website was off-line — under court order due to concerns about data security. During the Cobell litigation over the Department's handling of certain Indian Trusts, Judge RoyceLamberth ordered the shut down.
Now that the Interior Department is back on-line, it seems that quite a few employees are making up for lost time. A weeklong internal investigation by the Department's Inspector General found thousands of log entries for sexually explicit and gambling websites, in addition to game and auction sites. In that week alone, 440 DOI employees visited sexually explicit websites on their government computers. The IG's report, "Excessive Indulgences" estimated that time spent on auction and gaming websites accounted for over 100,000 hours of lost productivity over the course of the year.
The Interior Department has begun to respond to the report by upgrading blocking software to limit employee accesss to inappropriate sites. According to some reports, this new software is blocking access to many blogs. Indeed, it is specifically alleged that certain conservative blogs are blocked while equivalent liberal blogs or not.
Given the problems of computer misuse identified in the IG's report, I could understand (though I would disagree with) an Interior Department policy barring or limiting access to blogs generally. Screening blogs based on their ideological content, on the other hand, is more troublng. If it is true, as claimed by Gates of Vienna, that Captain's Quarters and Powerline are blocked, while DailyKos and Informed Comment remain accessible, that is a problem. Government agencies should not use ideological criteria for selecting which sites government employees may access.
Are these reports accurate? If there are VC readers at DOI, please let us know in the comments below. (Indeed, let us know if you can still access the VC.)
UPDATE: Gates of Vienna's Baron Bodissey is convinced something is nefarious is afoot at DOI. I am not so sure. As noted in the comments below, there are many possible explanations for the pattern of blocked sites that do not involve deliberate ideological filtering by government bureaucrats. Perhaps time will tell.
Related Posts (on one page): - Interior Blocking Blogs:
- Interior's Internet Problems:
Jobless Man Robs Bank With Hope of Getting Prison Term:
The very sad story is here.
Thursday, October 12, 2006
Blue, Brown, or Red?:
Every law student knows that most casebooks come in one of three colors: there are the blue-covered books (from Foundation Press), the brown-covered books (from West Publishers), and the red-covered books (from Aspen Publishers). So here's a question for law students: Do you have any preferences? Do you like the blue, brown, or red books the best? Is there any one that you like the least? And if you do have preferences, are those preferences based on the typesetting and format or your experiences with the contents of the book?
Thanks for your responses. (Also, if you are not either a current law student or a recent graduate, I would appreciate it if you would not post a comment, thanks.)
Oil and Iraqi Federalism - Where Hillary Clinton and I agree:
In this recent interview, Hillary Clinton (a figure with whom I rarely agree on much else) endorses an idea that I have argued for myself (see here, here, and here): a federalist system for Iraq under which each individual Iraqi citizen gets to have a share of the nation's oil wealth:
I recommended in '03 — and this went all the way up to [Vice President] Cheney, who shot it down — I recommended, while we were in charge, to create an oil trust, where you would basically say to every Iraqi, "You know what, you have a stake in this. And you can get some payment out of the oil revenue."
I thought it would be something that could demonstrate clearly that we were not on the side of the oil companies, we were not on the side of the ruling elites — we were on the side of the Iraqi people.
Nothing like that has been done. The Sunnis will not quit fighting until they are assured they're going to get some share of the oil revenue. Otherwise, the South goes to Shiites, the North goes to Kurds, and these people who have dominated not just Iraq, but the region historically, will be shamed and will be rendered second-class citizens.
As I argued in my previous writings on the subject (linked above), an oil fund that gives shares to all Iraqi citizens is a good way to ensure that decentralized federalism - a necessary part of any effective political settlement in Iraq - can be reconciled with the need to ensure that majority Sunni regions have access to the nation's oil wealth; there are few if any oil deposits in the "Sunni triangle" region where most Iraqi insurgents are based.
Clinton's comments, however, point to another advantage of this approach: the possibility that it would give ordinary Iraqis a greater stake in the new political system and therefore a new reason to oppose Baathist and radical Islamists who would seek to overthrow it (and thereby take away the new oil rights).
As to whether Sen. Clinton really did urge the Bush Administration to adopt this approach back in 2003, I have no way of knowing. However, a number of people did try to persuade the Administration to embrace it at the time, including my colleague and Nobel Prize-winning economist Vernon Smith. Unfortunately, their advice was not followed.
Now that Iraqi politicians in the new government have gotten control of the oil, it will be more difficult to get them to give it up than it would have been to create an oil trust back in 2003 when the US-led Coalition Provisional Authority still ruled Iraq. However, the United States might still be able to force the adoption of this crucial reform by using the leverage created by its massive aid payments to Iraq. If Iraqi politicians want to continue to benefit from large-scale US assistance, it is perfectly reasonable for us to require them to adopt a reform that enables their people to own a share of the nation's wealth and gives Iraqis of all ethnic and religious backgrounds an important incentive to oppose the insurgency. Related Posts (on one page): - Iraqi Oil Trusts - Answering Some Objections:
- Oil and Iraqi Federalism - Where Hillary Clinton and I agree:
Criminal Law Blog Recommendations:
If you're interested in criminal law, and criminal law blogs, consider adding these two blogs to your list of daily reads: 1. Crime and Consequences, run by the Criminal Justice Legal Foundation and featuring lots of interesting stuff from Kent Scheidegger (and the only blog I know of that lists a former United States Attorney General as a co-blogger).
2. FourthAmendment.com, hosted by defense attorney John Wesley Hall, Jr., which offers updates and summaries of new cases interpreting the Fourth Amendment in both the federal and state court systems. Both are very much worth reading if you're a fan of criminal law.
The Strange Case of the Naked Prosecutor:
An Ohio prosecutor has been charged with the crime of public indecency for walking around the office at night without any clothes on: A top law-enforcement official in Hamilton, City Prosecutor Scott Blauvelt, is accused of "walking around the Government Services Center after business hours without clothing," the Butler County Sheriff's Office says.
Blauvelt, 35, who was charged with two counts of public indecency, was booked into the county jail and then released. He awaits a hearing in Hamilton Municipal Court, where Blauvelt usually works, said Sheriff's Maj. Anthony Dwyer.
Calling the situation "an odd occurrence," Dwyer said investigators don't know what motivated Blauvelt to disrobe. He was alone at the time.
Mayor Don Ryan said he couldn't comment Monday, but he plans to discuss Blauvelt's employment status with Law Director Hillary Stevenson today.
Thursday night, a guard monitoring a security camera spotted a person going into an area outside the camera's range, in a tower that houses county offices, Dwyer said. "Then (the guard) sees him come back naked. ... That started the investigation."
Investigators identified the nude man as Blauvelt, Dwyer said. Blauvelt also appears naked on security-camera footage from the previous night, but in the building's other tower. That tower houses city offices, Dwyer said, including the court where Blauvelt prosecutes cases.
The charge is a fourth-degree misdemeanor, which carries a jail term of up to one month and a maximum fine of $250. Why was Blauvelt walking around naked in his office at night? Well, according to his attorney, Blauvelt has medical problems; he was seriously injured in a 2005 car accident, suffers from mental illness and is on medication for seizures. This is a really weird story, of course, but it also raises an interesting legal question: Was Blauvelt's conduct actually a crime? Let's assume Blauvelt was conscious and not having some sort of seizure that might raise voluntary act or mens rea issues. Here's what I gather is the relevant text of the Ohio public indency statute, R.C. § 2907.09(a): No person shall recklessly do any of the following, under circumstances in which the person's conduct is likely to be viewed by and affront others who are in the person's physical proximity and who are not members of the person's household . . . Expose his or her private parts. There are some interesting ambiguities in the statute, but it seems to me that the key question is whether Blauvelt was naked "under circumstances in which the person's conduct is likely to be viewed by and affront others who are in the person's physical proximity." We don't know a lot of the facts here, but based on the story it doesn't seem like this element has been satisfied. As best we know, the only person who saw Blauvelt was the security guard, who saw him at night via a remote security camera. If the courthouse was closed and no one else was expected to be physically nearby, I would think that the statute probably wasn't violated. The cases I found on this issue all involved places that were open to the public, such as public restrooms, open stores, public parks, open courtrooms, and the like. See, e.g., State v. Johnson, 2006 WL 2709709 (Ohio App. 2 Dist. 2006) (exposure to an undercover police officer in a public restroom). The cases don't require that the person actually be seen by a nearby member of the public, see State v. Henry, 783 N.E.2d 609 (Ohio App. 7 Dist. 2002) (statute violated when video camera catches man masturbating in open area of public restroom, although no member of the public saw him). However, in every decision I could find the area was open to the public; the key was the good chance that someone physically nearby would see the person exposing himself. It doesn't sound like there was much of a chance of that in this case given that the building was closed. My guess is that there is a lot going on here that hasn't been reported. But at least based on the facts as disclosed so far, and my current understanding of the law, it doesn't sound like Blauvelt violated the statute.
Al-Qaeda Adam, Axis Sally, and Tokyo Rose:
Adam Gadahn, who has become a propagandist for al-Qaeda, is being indicted for treason (as well as for providing material support for terrorist organizations). News accounts that I've heard suggests that the indictment is based precisely on what he's said, not on any physical assistance that he's provided. If he acted with the intent of helping al-Qaeda in its war against us, and if his overt acts can be proven with the testimony of two witnesses (or an in-court confession), then his actions would be treason. But what about the First Amendment?
Interestingly, the closest analogy here seems to be the post-World War II prosecutions of Axis Sally and Tokyo Rose, who were U.S. citizens who acted as propagandists for the Nazis and the Japanese. (As I understand it, Tokyo Rose was eventually exonerated on the grounds that she acted under duress, but that's not important to the legal analysis here.) Consider the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this "Vision of Invasion" broadcast while working for the Nazis:
This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated between soldiers on a ship in the invasion and the home of an American soldier. The ship is sunk, the soldier is killed and he appears in a dream of his mother. The general theme is expressed in the following colloquy between the American mother and father:
“Mother: But everyone says the invasion is suicide. The simplest person knows that. Between seventy and ninety percent of the boys will be killed or crippled for the rest of their lives.
“Father: What can we do about it?
“Mother: Bah. We could have done a lot about it. Have we got a government by the people or not? Roosevelt had no right to go to war.”
Witnesses who participated in the broadcast testified that the purpose was to prevent the invasion of Europe by telling the American people and soldiers that an attempted invasion would be risky with respect to the lives of the soldiers.
The court of appeals upheld Gillars' conviction, including against a First Amendment objection; the Supreme Court did not review the case.
It seems to me there are several possible First Amendment rules that could be applicable to this sort of case:
Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)
I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government’s actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we’re morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they
weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."
I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. This, though, would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. As I've written here, I think this is probably the best test, and it would cover Gadahn — but I'm not positive it. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view. This test would probably cover Gadahn as well, given that it sounds like al-Qaeda is likely providing his room and board, such as it is, and on a pretty full-time basis. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. The Conclusion of Tom Bell's article suggests that this might be the right test, though it also endorses an employed-by-the-enemy test.
I've also written briefly about this before, in this article [PDF pp. 4, 13, 65-66], and on the blog here and here. Tom Bell also has a post on the Gadahn case today.
I'm at a conference starting a minute from now, and won't be blogging until a good deal later, but these are some tentative thoughts on the subject for now.
Godwin's Law and Global Warming:
Roger Pielke Jr. has had enough of comparisons between global warming skeptics and holocaust deniers.
Let's be blunt. The phrase "climate change denier" is meant to be evocative of the phrase "holocaust denier". As such the phrase conjurs up a symbolic allusion fully intended to equate questioning of climate change with questioning of the Holocaust.
Let's be blunt. This allusion is an affront to those who suffered and died in the Holocaust. Let those who would make such an allusion instead be absolutely explicit about their assertion of moral equivalency between Holocaust deniers and those that they criticize.
This allusion has no place in the discourse on climate change. I say this as someone fully convinced of a significant human role in the behavior of the climate system.
Let's declare a moratorium on the phrases "climate change denier" and "climate change denial." Let's invoke the equivalent of Godwin's Law in discourse on climate policy. Maybe call it the Prometheus Principle.
No more invocation of "climate change deniers."
Pielke could further add that the allusion is meant to pillory those with dissenting views. Like other forms of ad hominem attack, it assails the individuals, not their arguments. It is also inapt in many cases, as many so-called "climate change deniers" accept that human activity is contributing to climate change. What they dispute is that such effects are necessarily catastrophic and/or that it makes sense to adopt proposed emission control schemes.
UPDATE: Speaking of holocaust analogies in the climate policy debate, a few weeks back Dave Roberts of Grist claimed the global warming "denial industry" should be subject to Nuremberg-style war crimes prosecutions: When we've finally gotten serious about global warming, when the impacts are really hitting us and we're in a full worldwide scramble to minimize the damage, we should have war crimes trials for these bastards -- some sort of climate Nuremberg. Yesterday Roberts half-heartedly acknowledged his rhetoric might have been a little bit excessive: Surely we can agree that global warming denialists, while not "as bad" as Holocaust deniers, are nonetheless really damn bad.
Nuremberg trials? Eh, whatever. Sue me for rhetorical excess. But let's not forget that a moral crime is taking place under our noses, and nothing is to be gained by being polite about it. Today, however, Roberts retracted teh remarks: There are people and institutions knowingly disseminating falsehoods and distortions about global warming. They deserve to be held publicly accountable.
As to what shape that accountability would take, my analogy to the Nuremberg trials was woefully inappropriate -- nay, stupid. I retract it wholeheartedly.
Wednesday, October 11, 2006
Samaha on the New Supreme Court Term:
The Chicago faculty blog has posted a very interesting podcast of a recent talk by law prof (and former Stevens clerk) Adam Samaha on the upcoming Supreme Court term, including his thoughts on the likely internal dynamics of the new Court and the role of swing votes.
Ellsberg paradox, take 4:
Glad you all liked the series of Ellsberg paradox posts. If you're interested in these issues, check out the following fairly accessible article: Mark J. Machina, Choice Under Uncertainty: Problems Solved and Unsolved, Journal of Economic Perspectives, Summer 1987, at 121.
The End of Cursive?:
The Washington Post has an interesting piece on the rapidly declining practice of teaching cursive writing in schools. I'm with Kos that this development is a good thing; I tend to think that cursive writing is a fairly silly thing to teach in a computer age, and I'm glad it isn't receiving the attention it once did.
Jon Stewart on the Minuteman Protest at Columbia:
The excerpt from the Daily Show is here.
Supreme Court Trivia:
Eric Muller has a question for serious Supreme Court geeks.
Ministers Trying to Mix Religion and Politics:
The Cleveland Plain Dealer reports:
Voters should oust congressional Republican leaders because U.S. foreign policy is delaying the second coming of Jesus Christ, according to a evangelical preacher trying to influence closely contested political races.
K.A. Paul railed against the war in Iraq on Sunday before a crowd of 1,000 at the New Spirit Revival Center in Cleveland Heights, his first stop on what he hopes is a 30-city campaign.
The Houston-based preacher said he believes that the Bush administration has delayed the second coming because U.S. foreign policy has blocked Christian missionaries from working in Iraq, Iran and Syria....
I somehow wonder how welcome Christian missionaries were in those countries — especially Iran — even before the war, and as you might gather arguments about delaying the second coming of Jesus Christ won't influence me much. I suspect they also won't influence most Christian voters much, since I doubt that the typical Christian shares Rev. Paul's view about what determines the timing of the second coming.
But I do think this is a useful illustration of how "mixing religion and politics" is hardly an exclusive province of those promoting conservative positions — as of course anyone who is familiar with the civil rights movement, the abolitionist movement, and various other movements in American history already knows. My view: People should be entirely free (both as a legal and a moral matter) to use religious and even theological arguments in favor or against a particular policy, whether it's the war, abortion, homosexuality, slavery, alcohol, discrimination, or whatever else, just as they're free to use secular philosophical arguments (including ones that rest on unprovable assumptions that many in the audience won't share). Of course, many of those arguments will be unpersuasive, even to those who are generally of the same religion as the speaker. But the question should be whether the arguments are sound, not whether they're religious.
On the other hand, I'd think that people who are outraged about how God talk is used on other issues — on the grounds that such talk impermissibly "mixes religion with politics" — should be equally outraged about God talk being used to oppose the Iraq war.
Ellsberg paradox, take 3:
Back to the Ellsberg paradox (so-called, 'cause it's not really a paradox). Based on a bunch of previous comments, let me summarize where we're at, with a simplified version of the paradox.
There are three balls. One is red. For each of the other balls, someone flipped a fair coin to determine whether they would be white or black.
You can imagine a number of lotteries based on a draw from these balls. For example, consider the following four lotteries:
Lottery A: Win $100 if we draw a red ball.
Lottery B: Win $100 if we draw a white ball.
Lottery C: Win $100 if we draw a ball that isn't red.
Lottery D: Win $100 if we draw a ball that isn't white.
Do you prefer Lottery A or Lottery B? Do you prefer Lottery C or Lottery D?
(This is different than the previous example in the following ways: First, I've given a specific set of probabilities for white vs. black. Second, I've made it clear that I'm not offering any lotteries, just eliciting your opinion. Third, I've made the prize $100, just to be more specific.)
It turns out that most people prefer A to B, and prefer C to D. This is inconsistent with expected utility theory, which says your preferences over lotteries should only depend on what the ultimate probabilities are and the utility of the item. More below the fold, including the answer to the question: "Who cares?"
Since, in this setup, the probability of white is 1/3 — the same as red — expected utility theory says you're indifferent between A and B. Suppose you get utility X from having the prize and utility N from not having it; then Lottery A gives you utility 1/3 X + 2/3 N, and so does Lottery B. Similarly, you're indifferent between C and D. Or, if we make the coin flip slightly biased toward black, you should strictly prefer A over B, and you should strictly prefer C over D D over C. [UPDATE: Mistake corrected here.]
O.K., so the way people act — call it "ambiguity aversion" here — is inconsistent with expected utility theory. (Expected utility theory, by the way, is the dominant theory in economics of how people act under uncertainty.) It looks like risk aversion, but it's not, because in terms of bottom-line probabilities and outcomes, A and B are identical to a risk averse person, and so are C and D.
So what? There are those who would say you should act according to expected utility theory. Even people who wouldn't go that far would say that if you can see that the probability of white is 1/3, you should treat B as equivalent to A. You shouldn't let yourself be fooled by the two-stage process where first we flip a coin to determine the probabilities and then we run the prize lottery; you should treat the whole thing as a single unified lottery.
I won't go there — to me, expected utility theory is a way of trying to describe how people behave, and if people don't behave that way, so much the worse for expected utility theory. If you prefer A and C over B and D, more power to you.
But, note that I can make money off this (even though I'm unconnected with the lottery).
Step 1: Suppose you're holding a B lottery ticket, and I have $100. Because you prefer A to B, you'd be willing to trade B plus some amount of money to get A. So I write you a piece of paper saying "I promise to pay you $100 if red is drawn," take your "$100 if white is drawn" ticket, and pocket the extra money.
Step 2: Now I find someone with a D lottery ticket, and I write him a C lottery ticket, i.e., a piece of paper saying "I promise to pay you $100 if red isn't drawn." We make the trade and I pocket some extra cash.
Step 3: I observe that with the two papers I've given up — an A ticket and a C ticket — I've given up $100 for sure, because I'm going to have to pay $100 on exactly one of those tickets. What I've received in exchange — a B ticket and a D ticket — also give me $100 for sure, because I'm going to get $100 on exactly one of those tickets, depending on whether the ball drawn is or isn't white. So the ticket exchange was exactly a wash. But I've pocketed some change twice.
Step 4: Find two more holders of a B and a D lottery ticket. Return to Step 1.
There are similar cases, with lotteries, where transitivity is violated — you can find objects A, B, and C, such that someone prefers A to B, B to C, and C to A. Economists call this a failure of "rationality" — where rationality is just defined as being (1) completeness and (2) transitivity. But that doesn't necessarily have any normative component. Be intransitive if you like.
However, let me invite you over while you're holding A. I'll offer to take A off your hands for C plus cash. Then I'll offer to take C off your hands in exchange for B plus cash. Then I'll offer to take B off your hands for A plus cash. At the end of this whole transaction, you're still holding A, but I've collected money from you three times.
Moral: The Ellsberg "paradox" isn't a paradox at all, just an example of how people violate expected utility theory. I don't think you're a bad person for violating expected utility theory; in a conflict between my theory and your practice, your practice wins. But let me propose a little transaction....
Song Line:
I was reminded today of Dar Williams' "The Pointless, Yet Poignant, Crisis Of A Co-Ed" (what a great title!). Check out the opening stanza: I'm not a leader, I'm not a left-wing rhetoric mobilizing force of one,
But there was a time way back, many years ago in college, don't laugh,
But I thought I was a radical, I ran the Hemp Liberation League with my
boyfriend,
It was true love, with a common cause and besides that, he was a
Sagittarius. I like the whole song, but it also contains one of my favorite lines ever written: I am older now, I know the rise and gradual fall of a daily victory.
District Court Holds That Border Searches of Computers Require Reasonable Suspicion:
I've blogged before about the practice sometimes used in child pornography investigations of waiting until a suspect has an international flight and then searching the suspect's computers at the airport under the Fourth Amendment's border search exception. ( Read the details here, and for more on the border search exception, read here.) In light of those posts, I thought I might point out that a district court in L.A. has taken a different course, ruling that border searches of computers are "non routine" under Ninth Circuit precedent and therefore require reasonable suspicion before they are constitutionally reasonable. The case is United States v. Arnold, --- F.Supp.2d ----, 2006 WL 2861592 (C.D.Cal. Oct 2, 2006), decided by District Judge Dean Pregerson. An excerpt: [T]the oft-quoted phrase "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border" belies the fact that highly intrusive searches are not reasonable merely because they take place at the border. Flores-Montano, 541 U.S. at 152-53 (quoting Ramsey, 431 U.S. at 616).
Although neither a warrant nor probable cause is needed for ordinary searches of persons and things crossing the border, cause is required for more intrusive border searches. Certain border searches are highly intrusive because they implicate the "dignity and privacy interests of the persons being searched." Flores-Montano, 541 U.S. at 152. As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing. United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.1980) (holding that to conduct a strip search, the authorities must have a "real suspicion" that the person is smuggling contraband and that "real suspicion" is "subjective suspicion supported by objective, articulable facts". . ..
A search is reasonable in scope only if it is no more intrusive than necessary to obtain the truth respecting the suspicious circumstances. United States v. Palmer, 575 F.2d 721, 723 (9th Cir.1978). The objective facts must bear some reasonable relationship to the degree of suspicion. Price, 472 F.2d at 547. For example, to conduct a body cavity search, which is considered a "serious invasion of personal privacy and dignity," a "clear indication" of possession of narcotics must exist. Henderson, 390 F.2d at 808 (citing Rivas v. United States, 368 F.2d 703, 710 (9th Cir.1996)).
Hence, an invasive border search must be limited in scope, and the scope must meet the reasonableness standard of the Fourth Amendment. Price, 472 F.2d at 574. In the Ninth Circuit, such non-routine searches require at least reasonable suspicion. United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir.1994); see also United States v. Ek, 676 F.2d 379, 382 (9th Cir.1982) (holding that there must be a "clear indication" or "plain suggestion" that the person is carrying contraband in his or her body to conduct a body cavity search). In the case of non-routine, invasive searches that implicate personal privacy and dignity, customs agents must possess a reasonable suspicion.
The Supreme Court recognized in Flores-Montano that highly intrusive searches of persons implicate dignity and privacy interests. Likewise, opening and viewing confidential computer files implicates dignity and privacy interests. Indeed, some may value the sanctity of private thoughts memorialized on a data storage device above physical privacy. See United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir.2002) (recognizing that "government intrusions into the mind--specifically those that would cause fear or apprehension in a reasonable person--are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature"), rev'd on other grounds, Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311.
The government argues that the officers searched Arnold's tangible property, not his person, and therefore the search was routine and did not require reasonable suspicion. However, as the Court recognized during the evidentiary hearing, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.
A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records. Attorneys' computers may contain confidential client information. Reporters' computers may contain information about confidential sources or story leads. Inventors' and corporate executives' computers may contain trade secrets. In this case, Arnold kept child pornography on his laptop and in his storage devices; however, "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting). The interesting question is whether the Ninth Circuit will agree, a question that the Ninth Circuit didn't need to get to in the earlier Romm decision because the defendant had waived the argument in that case. If the Ninth Circuit does agree with Judge Pregerson that computer searches are "non routine," there's a decent chance that this case would be the first computer search and seizure case to get to the Supreme Court. (Incidentally, if there are any law students reading this who are looking for student note topics, this issue is worth considering.)
Edmund Phelps:
This week Edmund Phelps was awarded the Nobel Prize in Economics "for his analysis of intertemporal tradeoffs in macroeconomic policy." Tyler Cowen comments here. Not coincidentally, Phelps had an article in yesterday's Wall Street Journal on entrepreneurship in the U.S. and Europe, available here.
UPDATE: Virginia Postrel explains why she's excited about Phelps' Nobel here.
Ellsberg paradox, take 2:
Looks like my Ellsberg paradox post below was pretty popular — about two dozen comments just in the first hour, between 11 p.m. and midnight (Eastern)! I'll repeat the problem below, then give my explanation. If you haven't done so before, you may want to think about what you would choose before reading the explanation.
There are three balls. One is red. Each of the others is either white or black. Now I give you a choice between two lotteries. Lottery A: You win a prize if we draw a red ball. Lottery B: You win a prize if we draw a white ball.
Which lottery do you choose? (Mini-update: I allow you to be indifferent, if you want.)
Now I give you another choice between two lotteries. Lottery C: You win a prize if we draw a ball that's not red. Lottery D: You win a prize if we draw a ball that's not white.
Now which lottery do you choose?
UPDATE: Just in case you're confused about this — and apparently some people were — we're talking about the SAME THREE BALLS each time. I haven't changed the balls. Nor have I drawn any balls. We haven't conducted any lotteries in the time it took you to read this post. All there is is a single box of balls, and me asking you your preferences over lotteries. (END OF UPDATE)
UPDATE 2: You ask one of these questions, and you find out all sorts of aspects that you weren't expecting people to find important. This will affect how I phrase the problem next time, but for now, let me just clear up one extraneous aspect. I'm not running the lottery. I don't own the balls. I'm not offering a prize. Someone else, who isn't connected with me, is doing all that. I'm just asking questions about which lotteries you prefer. Also, as I mentioned in the first update, we don't draw any balls between your first choice and your second choice. In fact, we're never going to draw any balls. Why? I'm not running the lottery! I'm just asking questions! If you want to draw balls, take it up with the guy actually running the lottery, who is not me.
There are two points here, one theoretical and another practical. I'll give you the theoretical point now, and save the practical one for a later post.
If you know about expected utility theory, you can skip this paragraph and the next four. Expected utility theory assumes that (to simplify) when you're faced with lotteries over, say, amounts of money, and each amount has some probability attached to it, and you have a utility-of-money function U, you choose which lottery you prefer based on the lottery's "expected utility," which is a kind of weighted average of the utilities of the different possible outcomes.
So if I offer you $1 if a fair coin comes up heads, then the expected utility is 0.5 U($1) + 0.5 U(0). (When I say U(0), that means the utility of however much money you already have; when I say U($1), that means the utility of that amount of money plus $1.)
Usually we assume people are risk averse, meaning they prefer the certainty of 50 cents. That would be U($0.5). So you would express risk aversion by saying that U(0.5) > 0.5 U(1) + 0.5 U(0). A risk neutral person doesn't care, as long as the lotteries have equal expected value, so he's got a different function U such that U(0.5) = 0.5 U(1) + 0.5 U(0).
But whether you've got risk aversion, risk neutrality, or something else, expected utility theory always assumes that only two things matter: (1) The utilities of the outcomes and (2) the probabilities. No matter how complicated a set of lotteries I give you, you always reduce it to the ultimate probabilities over the outcomes.
For instance, consider the set of nested lotteries: Lottery A = [Heads you lose, Tails you get to participate in Lottery B]; Lottery B = [Heads you lose, Tails you win $100]. Expected utility theory says you crunch the numbers and figure out that this is identical to a single lottery where you win $100 with probability 0.25. Everything else is irrelevant.
Now consider the choice of Lottery A vs. Lottery B. Lottery A is the prize with probability 1/3. Lottery B is the prize with a probability that could be 0, 1/3, or 2/3. Whatever the true probability is (you can make assumptions where the ultimate probability is 1/3, for instance if each ball is black or white with a 50-50 probability — but it doesn't need to be that), ultimately you'll make some choice. Suppose it's A. Under expected utility theory, that can only be because you think red has a higher probability. If you think the probabilities are equal, then under expected utility theory, you must be indifferent between the two lotteries. If you choose B, under expected utility theory that can only be because you think white has a higher probability.
Now go on to Lottery C vs. Lottery D. If you chose A the first time around, that means you think P(R) > P(W). But then you have to have P(not R) < P(not W). That's just mathematically true because P(not R) = 1 - P(R). So you can't prefer C if you preferred A.
Nonetheless, most people chose both A and C. Mostly, they did so because the probability of R is a known 1/3, and the probability of not-R is a known 2/3, while the probability of W and not-W are kind of unknown. Note: This is not risk aversion, because the probabilities we're talking about aren't the probabilities of the ultimate prize. Rather, we're talking about the probabilities of what the probabilities are. This is called ambiguity aversion. Ambiguity aversion plays no role in expected utility theory, where only the ultimate probabilities (and the utility of the outcomes, which I've held constant here) count. Therefore, in this setup, most people make choices inconsistent with expected utility theory.
Is this good? Bad? Irrelevant? Does it illustrate the crooked timber of humanity? The uselessness of expected utility theory? Stay tuned.
EU to Consider Climate Tariff?
According to this report, the European Union may consider adopting a "border tax adjustment" on imports from countries that do not impose domestic caps on carbon dioxide emissions. The idea is to reduce some of the costs of the EU's emission trading scheme. Set aside that parts of the EU itself are themselves behind schedule on the emission reductions to which they've already committed, such a proposal could be very attractive to domestic industries that would like tariff "protection" from foreign competition. Related Posts (on one page): - EU to Consider Climate Tariff?
- Many Countries Off-Course for Kyoto:
Tuesday, October 10, 2006
Balls:
There are three balls. One is red. Each of the others is either white or black. Now I give you a choice between two lotteries.
Lottery A: You win a prize if we draw a red ball.
Lottery B: You win a prize if we draw a white ball.
Which lottery do you choose?
Now I give you another choice between two lotteries.
Lottery C: You win a prize if we draw a ball that's not red.
Lottery D: You win a prize if we draw a ball that's not white.
Which lottery do you choose?
Post your answers, plus any reasoning, in the comments. If you're already familiar with the Ellsberg paradox, you can just watch. Explanations to come later.
UPDATE: Glad this is getting so many comments. Just a few comments of my own:
(1) Many people are assuming that each of the two balls is white or black with a 50-50 probability. Maybe, maybe not. Just keep in mind that it's not part of the assumptions.
(2) Just in case you reject the problem because you don't know the probabilities of white vs. black (though you shouldn't), you can answer the question assuming there's a 50-50 probability. Then, just for fun, answer the problem again where white has a 49% chance.
(3) Also, some people are wondering about the motivations of the "house," i.e., whether it wants you to win or lose. Think what you like about the motivations of the house, but keep in mind that the colors of the balls (however determined) are the same in Part 1 and Part 2.
(4) Some of you are wondering what's the "paradox." I'll explain soon (or you can just look it up on Wikipedia). It may not be right to call it a paradox; perhaps it's just an illustration of an interesting aspect of how people make choices.
Appeals to Religious Hostility from the Texas Republican Party:
Here's an item from the Texas Republican Party's Web site:
Candidate for the Sixth Court of Appeals, Ben Franks, is reported to be a professed atheist and apparently believes the Bible is a "collection of myths."
During debate over a plank in the State Democrat Platform, members of the Platform Committee debated dropping "God" from a sentence on the first page of the document. The plank stated: "we want a Texas where all people can fulfill their dreams and achieve their God-given potential."
According to an article published in the El Paso Times, Ben Franks states: "I’m an atheist..." [For Franks' response to this, see here.]
All elected or appointed officials in Texas must take the oath prescribed by Art. XVI, Section 1(a) of the Texas Constitution:
"I, _____, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of _____ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God."
Should Franks be elected in November, one would have to conclude that he will hold true to his out of touch "atheist" belief system and ignore the laws and Constitution of Texas. Mr. Franks is a personal injury trial lawyer practicing in Texarkana, Texas and is the Democrat nominee for the 6th Court of Appeals.
As I've argued before, the theoretical case for ignoring candidates' religious beliefs when deciding whom to vote for is not open-and-shut: Religious beliefs (whether atheist, fundamentalist Christian, Catholic, Muslim, Jewish, Hindu, or whatever else) are at least in theory pointers to how a person is likely to act, and the similarity between your beliefs and a candidate's might in theory be a good predictor of the similarity in your moral values and your views on what the government ought to do. But in practice, it seems to me that the correlation is low enough, and appeals to such a correlation are dangerous enough in a religiously pluralistic country that they ought to be eschewed and condemned.
But for now, let me just stress how, if such criticism of atheists is accepted, similar calls to vote against candidates with other beliefs about religion would become legitimized as well. After all, it's not just atheists who believe that the Bible is myth (I take it that the belief is about the Bible's claims of miracles, not about all of the Bible's historical assertions, some of which may be accurate, or about the Bible's moral teachings, to which the label "myth" can't be applied). Most Buddhists, Hindus, and other non-Christians/Jews/Muslims likely believe the same. Jews believe that the New Testament's claims of Jesus's miracles and his resurrection are myths (that's why they're not Christians). Many denominations of Christians believe that many of the claims of miracles in the Bible are myth (for instance, Methuselah didn't actually live to 969, the world wasn't actually covered in water during the Flood, Noah didn't actually fit two of each animal on his ark, and so on) or at least metaphor.
More broadly, if the Texas Republican Party can properly say "don't vote for the atheist, because he believes the Bible is myth and is therefore out of touch with the majority," then a party can equally legitimately say "don't vote for the fundamentalist Christian, because he believes the Bible is literally true and is therefore out of touch with the majority that don't believe such things," or "don't vote for the Catholic, because he recognizes the spiritual authority of a foreign leader, and is therefore out of touch with true blue Americans who bow their heads to no foreign potentate." Do we really want that sort of political argument to resurface?
Just to mention what should be obvious, I think the Texas Republican Party has a perfect First Amendment right to put out such arguments; I'm also not persuaded that the Religious Test Clause actually prohibits (even in an unenforceable way) voters from voting based on a candidate's religiosity. But I think arguments like the Texas Republican Party's are corrosive to American religious tolerance, and to American democracy more broadly, and we should exercise our First Amendment rights to condemn them.
Incidentally, the "so help me God" argument doesn't work: The laws of the state of Texas are subject to the U.S. Constitution, which bars the disqualification of officeholders who don't believe in God (or who refuse to engage in religious oaths, as quite devout Quakers and others do). See, e.g., Torcaso v. Watkins (1961); Lee v. Weisman (1992). In light of these federal precedents, the Texas Constitution has to be read as providing people who don't want to swear, but who instead want to affirm without reference to God, the right to do that. It's the Texas Republican Party's legal analysis that's ignoring the constitution of the United States, which is the fundamental law of Texas as well as of all other states.
Tushnet on Changes to HLS 1L Curriculum:
Over at Balkinization, newly-appointed Harvard Law prof Mark Tushnet blogs about the upcoming changes to Harvard's first-year curriculum.
"Separation of Church and State":
The New York Times is running an interesting series on voluntary religious accommodations -- mostly statutory exemptions for religious institutions and individuals from generally applicable laws, exemptions that are not mandated by the Free Exercise Clause. One tidbit from the first item struck me:
An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use. New breaks have also been provided by a host of pivotal court decisions at the state and federal level, and by numerous rule changes in almost every department and agency of the executive branch.
The special breaks amount to “a sort of religious affirmative action program,” said John Witte Jr., director of the Center for the Study of Law and Religion at the Emory University law school.
Professor Witte added: “Separation of church and state was certainly part of American law when many of today’s public opinion makers were in school. But separation of church and state is no longer the law of the land.”
Now I think there are quite good arguments against religious-specific exemptions that end up giving special treatment to religious institutions and individuals that's not available to comparable nonreligious institutions and inviduals, though there are also often good counterarguments. It is this skepticism about favoritism for religion that led the Supreme Court, for instance, to read the conscientious objector exemption from draft laws to apply to people who have deeply held nonreligious philosophical objections to war as well as to those who have religious objections.
But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.
Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation." It is abolishing the affirmative action for religion, by applying laws to religious institutions the same way it's applied to other institutions, that would bring church and state closer, here in the sense of having the state have more authority over the church. In fact, one form of "separation of church and state" that many "separationist" judges and legal scholars have urged is (1) discriminatory exclusion of religious institutions from many generally available government-run benefits (such as school choice funds), but (2) preferential exemption of religious institutions from many generally available government-imposed restrictions (such as many aspects of employment laws, historic preservation laws, and the like).
Of course, one can define "separation of church and state" to mean "the state ignoring people's and institutions' religion and religiosity, and treating everyone equally regardless of their church affiliation or lack thereof." This would mean (1a) evenhanded inclusion of religious institutions in generally available government-run benefits, (1b) prohibition on preference for religious institutions in such benefits, (2a) evenhanded application of generally applicable laws to religious institutions and people (though perhaps with some exemptions to some laws for all conscientious objectors to that law, whether the objection is religious or secular philosophical), and (2b) prohibition on laws that single out religious institutions and people for special burdens. Some judges and legal scholars have endorsed this view, though generally without calling it "separation." (My view comes close to this one, though with a few exceptions that I don't want to dwell on here, since this post is about the phrase "separation of church and state" rather than about any particular legal proposal.)
One can also, I imagine, define "separation of church and state" as "discriminatory exclusion of religious institutions from generally available funding programs, but evenhanded coverage of religious institutions and people in regulatory programs." That seems an odd definition to me, but who can say for sure?
My point here is that "separation of church and state" is more a slogan than a well-defined term. Though it seems to me that it should cut in favor of such "affirmative action" programs that exclude religious institutions from generally applicable burdens, obviously others use the term diferently, and the term is capacious enough to be used differently. And on top of that, even those who take the first view of separation that I described -- exclusion from some benefits and exemption from some burdens -- have to explain just where they draw the line: Few, for instance, would bar the police or fire departments from investigation crimes or putting out fires at churches, or would bar cities from providing the same tax-subsidized sewer access to churches as they do to all other institutions.
So when you hear talk of "separation of church and state," keep in mind that this term by itself isn't much of a well-defined legal concept (such as, say, "probable cause," "strict scrutiny," or even "freedom of speech," as defined by the Court's decision) or a clear philosophical concept. It's generally a slogan, these days probably mostly a means for rallying people with a certain set of attitudes about religion-and-government issues, not a helpful tool for analysis.
Foreign Law and the Exclusionary Rule:
A lot of VC readers are familiar with the debate over the use of foreign law to interpret the Bill of Rights. It's interesting that most discussions of this issue (not all, but most) overlook a prominent historical example: the use of the exclusionary rule for state violations of the Fourth Amendment, in which foreign law played a role in initially leading the Supreme Court to reject the use of the exclusionary rule under the Due Process clause. The key case is Wolf v. Colorado, 338 U.S. 25 (1949), which held that the Fourth Amendment was applicable to the states through the Due Process clause but that its exclusionary rule was not. Doctrinally speaking, the question was whether the exclusionary remedy was "implicit in the concept of ordered liberty" such that it was required under the Due Process clause to be applicable to the states. Justice Frankfurter ruled that it was not, based in part on international practice: [T]he immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue to which men with complete devotion to the protection of the right of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. (emphasis mine) Justice Frankfurther then added an Appendix to the Wolf decision listing the "English-speaking" jurisdictions and citations to their courts' rejection of the exclusionary rule. Here is the Appendix: JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH COMMONWEALTH OF NATIONS WHICH HAVE HELD ADMISSIBLE EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE.
AUSTRALIA Miller v. Noblet, (1927) S.A.S.R. 385.
CANADA ALTA. Rex v. Nelson, (1922) 2 W.W.R. 381, 69 D.L.R. 180.
MAN. ex v. Durousel, 41 Man. 15, (1933) 2 D.L.R. 446.
ONT. Regina v. Doyle, 12 Ont. 347.
SASK. Rex v. Kostachuk, 24 Sask. 485, 54 Can.C.C. 189.
ENGLAND See Elias v. Pasmore, (1934) 2 K.B. 164.
INDIA ALL. Ali Ahmad Khan v. Emperor, 81 I.C. 615(1).
CAL. Baldeo Bin v. Emperor, 142 I.C. 639.
RANG. Chwa Hum Htive v. Emperor, 143 I.C. 824.
SCOTLAND See Hodgson v. McPherson, (1913) S.C.(J.) 68, 73. Twelve years later, the Supreme Court overruled Wolf in Mapp v. Ohio, 367 U.S. 643 (1961), and held that the exclusionary rule was applicable to the states. Strikingly, however, Mapp v. Ohio completely ignored international opinion and international practice. It looked only inwardly, closing its eyes to what Justice Ginsburg has called "the experience and good thinking foreign sources may convey." (Note also that while Frankfurter focused on "English-speaking" nations, he would have reached the same result by looking at all countries; as far as I know, the United States is still the only country in the world with a mandatory suppression remedy for search and seizure violations.) Of course, the number of people who want the Supreme Court to rely on foreign law in the interpretation of the Due Process clause and also want a return to Wolf v. Colorado could fit in a phone booth, with room left over for an offensive tackle to enter the phone booth and make a call. But it strikes me as an interesting example.
Isaiah Berlin's translation:
In a previous post, I mentioned Kant's phrase, which Isaiah Berlin translated as: "Out of the crooked timber of humanity no straight thing was ever made." This is a loose translation from Kant's original "Aus so krummem Holze, als woraus der Mensch gemacht ist, kann nichts ganz Gerades gezimmert werden"; Berlin seemed to have valued pithiness over accurate translation.
But now a copy of Berlin's book The Crooked Timber of Humanity: Chapters in the History of Ideas (1991) has just arrived, and it does seem that, as an epigraph (p. xi), Berlin does translate the Kant fairly accurately:
Out of timber so crooked as that from which man is made nothing entirely straight can be built.
This is in addition to the pithy translation, which is on p. 19. For an intermediate translation, see Against the Current: Essays in the History of Ideas (1980), p. 148: "Out of the crooked timber of humanity no straight thing can ever be made."
Training to resist school shootings:
My new article for National Review Online continues the discussion of strategies to prevent school shootings. The article continues and elaborates some of the issues raised by Eugene and me in posts last week. The new articles points out that since 1995, Utah has allowed anyone with a concealed handgun license to carry a handgun on school property, and the policy has resulted in no incidents of gun misuse by any permit holder; this suggests that fears that teachers will use guns to threaten students, or that students will steal guns from teachers are overblown. The article suggests that teachers should be allowed, and encouraged, to take training in use of defensive sprays, and in unarmed self-defense. The article also suggests that self-defense be incorporated into the physical education curriculum.
I will be discussing the article this afternoon, at 5:09 p.m. Central Time, on the Vickie McKenna show, broadcast from Madison, Wisconsin. The program is available through live feed on the web.
Related Posts (on one page): - Training to resist school shootings:
- Make Schools Safe for Kids, not Criminals:
Restoring the Lost Constitution Now On Sale:
Updating my website, I just noticed that Laissez-Faire Books is giving away free copies of my book, Restoring the Lost Constitution. Well, in truth, they are charging $12.71, but that is almost free, isn't it?
Stone's Definition of a "Liberal":
University of Chicago law professor Geoffrey Stone believes that "liberals have failed to define themselves and to state clearly what they believe." As a self-described liberal, Stone believes this is a problem. To remedy the situation, and prompt greater discussion on the matter, he offers ten propositions that, to him, define what it means to be a liberal today. (LvHB)
Stealthy Border Crossers:
Following the some of the same secret routes utilized by drug smugglers, stealthy predators are making their way into the United States from Mexico. According to the New York Times, male jaguars have crossed the border from Mexico in recent years. As yet there's no evidence that jaguars have been breeding in the U.S. If there were, this could complicate border control policy insofar as areas along the border could be declared critical habitat for the animal -- a move some environmentalist groups already urge. According to the story, one group has already filed suit on the issue, so the question may get resolved in federal court.
Many Countries Off-Course for Kyoto:
The Associated Press reports:
With few exceptions, the world’s big industrialized nations are struggling to meet the greenhouse gas reductions they committed to in the embattled Kyoto pact on climate change. Europe is veering off course, Japan is still far from its target and Canada has given up. . . .
Among the worst off is Canada, the current president of U.N. climate change talks, which this year became the first country to announce it would not meet its Kyoto target of a 6 percent emissions cut on average over the years 2008-2012. Canada’s emissions have ballooned by 29 percent instead. . . .
Japan, too, has a long way to go to meet its reduction. If no additional measures are taken, U.N. forecasts show Japan’s emissions will grow by 6 percent, instead of shrink by the same rate as mandated by the treaty.
Aiko Takemoto, an official at the Environment Ministry’s climate change division, noted that the bulk of increased emissions came during the 1990s and emissions are forecast to fall. He said the government’s Kyoto Achievement Plan implemented last year will help Japan achieve the target rates by 2012. . . .
The European Union, perhaps the biggest champion of the Kyoto pact, is doing better. But even here, the latest statistics are cause for concern.
The EU believes it can meet its target of cutting emissions by 8 percent by 2012, but only with the full implementation of an emissions trading scheme and two big ‘‘ifs.’’
First, countries including Germany and France must introduce environmental policies that are currently only in the planning stages. Second, many must make full use of carbon credits for investing in clean technology projects in developing countries.
‘‘It’s a whole list of things that need to be achieved to reach the target,’’ said Andre Jols of the European Environment Agency. ‘‘Basically all of that has to happen. If it does not, there will be a problem.’’
The European Environment Agency said greenhouse emissions increased by 18 million tons, or 0.4 percent, between 2003 and 2004 in the 25-member bloc.
Had the United States ratified the Kyoto Protocol it would likely be in a similar situation. Meeting Kyoto targets would have required energy reductions in the neighborhood of 30 percent from present levels. This fact and the widespread opposition to a Kyoto-style approach to climate change are the reasons Kyoto was never submitted to the Senate for ratification. The United States has not officially "withdrawn" from Kyoto, however (as the U.S. did with the I.C.C.). Instead, the U.S. remains a signatory and an active participant in international climate meetings, just not as a party to the agreement.
Meanwhile, the Bush Administration's failure to be more aggressive on climate change continues to provoke the ire of environmentalist groups, even though the Clinton-Gore administration was similarly reticent to adopt substantive policy measures. Reuters reports: He's set up the world's largest protected marine reserve, raised air pollution standards and pledged to end damaging fishing, but President Bush still draws environmentalists' ire for his stance on global warming.
Ecologically minded critics view Bush's many "green" initiatives as incremental steps -- not the sort of bold action they say is needed to combat global climate change. Environmentalists say Bush has focused on "safe, second-tier issues" rather than address controversial matters. Again, however, it is interesting that this administration has taken steps (however haltingly) to address the urgent over-fishing problem, whereas its predecessor did nothing meaningful in this regard. There is much to fault in the Bush Administration's environmental record, but also more to credit than environmental activists are willing to acknowledge.
Related Posts (on one page): - EU to Consider Climate Tariff?
- Many Countries Off-Course for Kyoto:
Monday, October 9, 2006
Schools of Legal Thought:
Legal scholars often refer of schools of legal thought, such as the legal formalists, the legal realists, the legal process school, and the like. I have often thought that, as a general matter, there is something to these schools -- very real differences in terms of how adherents to these schools thought about the law. At the same time, I am often struck by the nagging sense that many descriptions of these differences are exagerrated. When I go back and actually read the works of the formalists, or the realists, or the legal process school, I often end up with the impression that their work is much more sophisticated and less one-dimensional than many current critiques would suggest. It seems to me that the differences are more differences of degree than differences in kind.
I wonder, do others share that impression? I realize that this is kind of an abstract question, but it's something I think about from time to time and I thought I would put it out there for comment.
The Importance of International and Comparative Law to Legal Practice:
The Boston Globe has a piece on Harvard Law's new first-year curriculum, which is going to include some unspecified emphasis on international and comparative law. The article quotes Prof. Martha Minow: "So we are making a strong statement that legal education ought to reflect the problem-solving, prospective, constructive, legislative, comparative, and international work that is central to law today." I wonder whether it's true that "comparative and international work" is "central to law today." I've written a lengthy comparative piece on expert evidence, so I'm certainly not averse to such work, but I don't recall a single American decision on expert testimony that cites a foreign legal opinion. As a practical matter, I wonder whether even Harvard Law graduates frequently encounter international and comparative issues in their practice, other than international matters that are really "domestic foreign" matters they wisely hand off to attorneys in the relevant country. Any thoughts from recent grads?
Phony Associations in Epidemiological Research:
A reader passed along a citation to a very interesting article, Peter C. Austin, at al., Testing Multiple Statistical Hypotheses Resulted in Spurious Associations: A Study of Astrological Signs and Health, 59 J. Clinical Epidemiology 964 (2006). The basic point of the article is that, as an accompanying editorial (59 J. Clinical Epidemiology 871) notes "spurious P-values arise at a suprisingly high frequency if a researcher has sufficient creativity and a large database." The lesson, I think, is the importance of adhering to the Bradford Hill criteria before drawing any conclusions from an epidemiological study; also, before scientific journals publish such studies, they should ask the authors how many potential associations they investigated. Given the standard significance threshold of 95%, a researcher who looks for one hundred different associations may find five of them by chance.
I can't say I'm any sort of expert in statistics, but from what I've seen at academic workshops, economists (including law and economics scholars) tend to be even more sloppy than epidemiologists about (a) exhibiting naivete about the importance of finding a "statistically significant" result; (b) concluding that they have discovered causation when they've only discovered, at best, correlation; and (c) coming up with unconvincing post-hoc rationalizations as to why they manipulated their data set in a particular way that just happened to help them achieve a "positive" result. That's not to say that there isn't some fine empirical work out there in the law and economics literature, just that appropriate cautions and safeguards don't seem to me to be as built-in to professional culture as they should be. One safeguard I'd like to see: to prevent data dredging and other forms of manipulation, researchers should publish on the Internet their research protocol, what factors they are going to consider, and why, BEFORE they start looking for results. For (random) example, if one is going to do a paper on the effect of mandatory sentencing on crime rates, one should announce in advance which crimes one is going to consider and why, and not instead be able to first elmininate roberries, than eliminate rapes, than add back robberies and eliminate burglaries, etc., until one comes up with an "interesting" result, after which one can post-hoc rationalizes why one chose the crimes one did.
Interesting Career Option for Recent Law School Grad:
Are you a recent law school graduate looking for real-life litigation experience? You could join a firm, or apply to be a judicial clerk. But why not just become a judge? I don't know how well the job pays, but it's certainly a great way to understand how judges think.
Government Responds in United States v. Ziegler:
I have blogged a few times about the Ninth Circuit's recent decision in United States v. Ziegler, which reached the plainly erroneous and very troubling conclusion that a workplace monitoring policy in a private-sector workplace eliminates all Fourth Amendment rights. I blogged about Ziegler's petition for rehearing a month ago, and shortly thereafter the Ninth Circuit called for a response from the United States. Last week the government filed its response, which I have posted here: Appellee's Response to Petition for Rehearing and Rehearing En Banc. The government's brief reflects a basic misunderstanding of the Fourth Amendment, and in particular the meaning of the reasonable expectation of privacy test. The government's brief assumes that a reasonable expectation of privacy is all about what I have elsewhere termed the probabilistic model — that is, the chances that something will remain private. Thus, the government imagines, whether a person has a reasonable expectation of privacy is inherently fact-sensitive, and all you need to do is look to the very specific circumstances and see if based on the context it was reasonable for someone to expect privacy. From that perspective, whether a case involves (say) government or private-sector employment is only relevant to the extent actual workplace policies are different. But that's simply not how the Fourth Amendment works. The "reasonable expectation of privacy" test is actually a system of localized rules: the phrase is simply a label, and what it actually means depends on the specific context as determined by the Supreme Court's cases. The Supreme Court has decided dozens of cases interpreting the reasonable expectation of privacy test, and those cases offer specific interpretations for lower courts to use. As a result, the actual meaning of the Fourth Amendment is highly localized: "reasonable expectation of privacy" means different things in different contexts, and usually has nothing to do with the probability that a reasonable person would expect something to remain private. That difference is critical here, because the Supreme Court has handed down different localized rules for Fourth Amendment rights in a public employment context and in a private employment context. I realize it seems strange at first, but it's basic hornbook law: the doctrinal test for whether there is a "reasonable expectation of privacy" in a private workplace is simply different from the test in a public-sector workplace. It's not because the workplaces are inherently different, but because the U.S. Supreme Court has decided to regulate the two environments using different legal rules. In a nutshell, the private sector rule is that there is an REP unless the workplace is open to the public; in the public sector, there is no REP unless the employee is afforded a space that is not shared by other employees or subject to regular access by other employees. Two different contexts, two different legal rules. (Incidentally, if you're interested in learning more about this, I should have a new draft up in about 2 weeks explaining exactly how the Supreme Court uses these different tests to create localized Fourth Amendment rules, all under the "reasonable expectation of privacy" rubric. Stay tuned.)
Sunday, October 8, 2006
Mearsheimer and Walt Get a Book Contract:
Mearsheimer and Walt, that oppressed Harvard-Chicago duo who authored the "Israel Lobby" paper, a paper that would make a precocious but untutored high-schooler proud, but is an embarassment to the authors, have now received a contract from the prestigious commercial publisher Farrar, Straus, and Giroux to expand their paper into a book. Obviously, this piece of news is a bit inconsistent with the claim M & W themselves have promoted that the power of the Israel Lobby is shown by the inability of critics of Israel and its ties to the U.S. to get their voices heard. Indeed, I'd wager it was far easier for M & W to find a publisher than it has been for best-selling conservative authors like Ann Coulter and Bernard Goldberg.
In other Mearsheimer and Walt news, the Jerusalem Post quotes Mearsheimer as follows at a debate at Cooper Union: "There is much documentation to support that Israel is not only a force behind the [Iraq] war, but that the Israel lobby was one of the principle driving forces behind the war, and in its absence, the United States would not have gone to war." Shlomo Ben-Ami, a Labor politician from Israel, responded along the same lines as I've noted several times on this blog: "From the beginning, Israel said Iran was the fear, not Iraq."
I'd love to see Mearsheimer's "documentation" that Israel was "a force behind the war," not to mention actual documentation that the war would not have occurred but for the "Israel Lobby." And I don't mean the trite observation that neoconservatives who supported the Iraq war (along with every other American military intervention and belligerent act of the last thirty years) also are usually strong supporters of Israel. I'm not holding my breath.
UPDATE: In what strikes me as a very tendentious piece about Tony Judt, Michael Powell of the Washington Post writes,
He has, of late, defended an academic paper — co-authored by professor Stephen M. Walt of Harvard University's John F. Kennedy School of Government and John J. Mearsheimer, a professor at the University of Chicago — which argues the American Israel lobby has pushed policies that are not in the United States' best interests and in fact often encourage Israel to engage in self-destructive behavior.
Well, gee, then what's all the controversy about? Put in such relatively
innocuous terms, even I would agree with the paper.
[As far as Judt goes, I have no love for the guy, but if the ADL and AJC did, even subtly, try to persuade the Polish embassy to cancel Judt's speech, it was stupid, hamhanded, adn counterproductive. Note that Judt's group was just renting out the embassy; I don't see why the ADL or anyone else should care if the Polish embassy rents its space to Judt, who has what amount to rather conventional extreme left-wing views on everything, including Israel. If the embassy had been honoring Judt, that would be a different story. OTOH, the article's curt dismissal of the case against Norman Finkelstein, along with its misrepresentation of the Mearsheimer and Walt controversy, leads me to reserve judgment on the details of this story.]
Project Posner:
Tim Wu, a former law clerk for Judge Richard Posner, has put up a new website that allows you to search through all of Judge Posner's judicial opinions: ProjectPosner.Org. You can find a list of the opinions by year here.
Some truly great moments in baseball history:
To mark the occasion of the Detroit Tigers' recent upset playoff victory over the Yankees, ESPN.com has compiled this list of great Yankees playoff collapses.
I realize, of course, that a key reason why the Yankees have had so many playoff collapses is that they get to the postseason so often (roughly once every two years since pilfering the Babe from the Red Sox back in 1920). The rate at which the Yankees experience catastrophic failure in the playoffs is probably no greater than one would expect based on random chance variation. But that doesn't prevent me from enjoying moments like this! Moreover, 4 of the 10 collapses on the ESPN list have happened in the last six years. Maybe it's just a random blip, but perhaps the incidence of Yankees' collapses is going up.
UPDATE: The ESPN list, while pretty thorough, omits several good candidates, including the Big Red Machine sweep of the Yankees in the 1976 World Series, and the Kansas CIty Royals' sweep of a heavily favored Yankees team in the 1980 ALCS, a fitting revenge for three straight close defeats in the ALCS in 1976-78. Most importantly it fails to include the 1926 World Series, my personal favorite Yankees postseason defeat(with the exception of the 2004 "Reversal of the Curse," of course). In that series, St. Louis Cardinals pitcher Grover Cleveland Alexander came in an put down a bases loaded Yankees rally in Game 7, despite being hungover from celebrating his complete-game victory the night before in Game 6. Then, in the ninth inning, Babe Ruth "clinched" the Cardinals victory by getting caught stealing to make the last out of the series. Anyone who has ever seen a picture of the lumbering Babe knows that a Ruth steal attempt (especially with slugger Bob Meusel at the plate) is not exactly good strategy in a crucial situation!
This entire series of events was immortalized in the 1952 movie The Winning Team, starring Ronald Reagan as Alexander. It's definitely my favorite Reagan movie, for reasons having little to do with cinematic quality:).
A Bizarre Calumny at Crooked Timber:
I was websurfing recently, and came across a post by Daniel Davies of the Crooked Timber academic blog from September 1 about an Australian controversy over whether the Lebanese Red Cross conspired with Hezbollah to create anti-Israel propaganda. In the comments, and apropos of nothing in particular, he added, "tangentially to which, I was checking back on David Bernstein's laughable and disgusting efforts on the Volokh website around the time of the Qana bombing and lots of them have been substantially edited."
The implication is that my posts were so "laugable and disgusting" that even I thought better of them, and surreptitiously edited them so they wouldn't haunt me for posterity.
So, for the record, let me say that Davies's accusation is 100% absolutely false. I have not gone back and edited ANY of these posts, much less "lots of them." Indeed, while I occasionally slightly edit posts within a few hours of their posting, usually for style, and I certainly often add "updates" (marked as such) within the first day or so, and usually within a few hours, I can't recall EVER going back and editing an old post days or even weeks later.
I sent two emails to Davies, several days apart, denying that I or anyone else went back "substantially edited" any of my Qana posts, and asked him to either provide contrary evidence or to retract his comment and apologize. I received no response to either email.
I don't know Davies, don't actually know who he is, rarely look at Crooked Timber, and have no idea why he would first make this up, and then not respond when called on it. But there you have it.
Sunday Song Lyric:
Some American songwriters had an uncanny ability to write nearly timeless songs. Among them, Hoagy Carmichael was one of the greatest. Hoagy wrote many classics, including "The Nearness of You," "Georgia on My Mind," and "Washboard Blues," but his most famous song was "Stardust."
With lyrics by Mitchell Parish, "Stardust" became an American standard. Artists who hit the charts with it include Frank Sinatra, Nat King Cole, Tommy Dorsey, Bing Crosby, and Louis Armstrong. It's probably only a matter of time before someone else makes a splash with it again. So here are the lyrics: And now the purple dusk of twilight time
Steals across the meadows of my heart
High up in the sky the little stars climb
Always reminding me that were apart
You wander down the lane and far away
Leaving me a song that will not die
Love is now the stardust of yesterday
The music of the years gone by
Sometimes I wonder why I spend
The lonely night dreaming of a song
The melody haunts my reverie
And I am once again with you
When our love was new
And each kiss an inspiration
But that was long ago
Now my consolation
Is in the stardust of a song
Beside a garden wall
When stars are bright
You are in my arms
The nightingale tells his fairy tale
A paradise where roses bloom
Though I dream in vain
In my heart it will remain
My stardust melody
The memory of loves refrain Fun Wiki facts: Hoagy Carmichael also had a career as an actor, and Ian Fleming sometimes described James Bond as looking like Hoagy with a scar across his face.
Few Stood Against Many:
Spartan valor as told by Frank Miller on the silver screen. One word: Cool. The trailer, set to a Nine Inch Nails track, is here.
The "Reconstruction" of Tolkien's Children of Hurin:
J.R.R. Tolkien's The Children of Hurin is scheduled to be published next spring, according to this Boston Globe article (hat tip to my Amherst College classmate David Lobron). Because Tolkien, who died in 1973, never finished the book, the published version is based on a manuscript "reconstructed" from Tolkien's notes by the author's son Christopher Tolkien. Some scholars are critical of this approach:
``I think that word `reconstructed' is a warning sign," said William Pritchard, an English professor at Amherst College and biographer of poets Robert Frost and Randall Jarrell. ``You don't want a `reconstruction' by a member of the family of something a genius wrote. It induces skepticism in the wary reader."
I took a class with Professor Pritchard as an undergraduate at Amherst, and he clearly knows far more about literature than I do. Nonetheless, I think he is wrong in this instance. Christopher Tolkien is not just any "member of the family," but is a major expert on his father's work who has devoted much of the last thirty years to studying it. Back in 1977, he prepared the published version of his father's The Silmarillion, which provides the mythological background to The Hobbit and The Lord of The Rings. Although The Silmarillion is not as impressive a work as The Lord of the Rings, it is still extremely interesting, and few Tolkien fans or scholars would argue that we would be better off without it. There is every reason to expect that Christopher Tolkien will do an equally good job of putting together The Children of Hurin, and that he will do his best to carry out his father's intentions.
The result will not be as good a book as might have emerged had J.R.R. Tolkien lived to finish it himself. But it will still reflect Tolkien's style and ideas, and will almost certainly be a lot better than nothing.
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