When you cite a Web page in your article -- or in a court opinion -- you run the risk that the page will be gone by the time some reader of yours will want to check it. The obvious solutions are to archive the page, either on some site that you've committed to keep up yourself, or on some site run by an organization devoted to this purpose. Likewise, publishers (such as law reviews) may do the same for articles that they publish. And I know there are organizations that do try to do this, at least in theory.
My question relates to the practice: Have any of you done this systematically for your own works? Have you used archiving services, and what has been your experience with them? Are there unexpected technical issues one needs to worry about when doing this? I'd love to know, and I imagine that so would many others.
The blogosphere is abuzz about this breathless Guardian story alleging that the American Enterprise Institute is offering cash payments to scientists who will "undermine" the new report of the Intergovernmental Panel on Climate Change (IPCC). (See, e.g., here, here, and here.) Some suggest this is a scandalous example of "buying science." I've obtained copies of the letters in question and an internal memo circulated to AEI staff by AEI President Christopher DeMuth, and it seems to me there is less here than the Guardian and others might suggest.
Here is the text of the letter described in the Guardian report. It was sent by Steven Hayward and Kenneth Green of AEI in July 2006 to Professor Steve Schroeder of Texas A&M, a climate scientist who has been critical of climate models in the past.
Dear Prof. Schroeder:
The American Enterprise Institute is launching a major project to produce a review and policy critique of the forthcoming Fourth Assessment Report (FAR) of the Intergovernmental Panel on Climate Change (IPCC), due for release in the spring of 2007. We are looking to commission a series of review essays from a broad panel of experts to be published concurrent with the release of the FAR, and we want to invite you to be one of the authors.
The purpose of this project is to highlight the strengths and weaknesses of the IPCC process, especially as it bears on potential policy responses to climate change. As with any large-scale “consensus” process, the IPCC is susceptible to self-selection bias in its personnel, resistant to reasonable criticism and dissent, and prone to summary conclusions that are poorly supported by the analytical work of the complete Working Group reports. An independent review of the FAR will advance public deliberation about the extent of potential future climate change and clarify the basis for various policy strategies. Because advance drafts of the FAR are available for outside review (the report of Working Group I is already out; Working Groups II and III will be released for review shortly), a concurrent review of the FAR is feasible for the first time.
From our earlier discussions of climate modeling (with both yourself and Prof. North), I developed considerable respect for the integrity with which your lab approaches the characterization of climate modeling data. We are hoping to sponsor a paper by you and Prof. North that thoughtfully explores the limitations of climate model outputs as they pertain to the development of climate policy (as opposed to the utility of climate models in more theoretical climate research). In particular, we are looking for an author who can write a well-supported but accessible discussion of which elements of climate modeling have demonstrated predictive value that might make them policy-relevant and which elements of climate modeling have less levels of predictive utility, and hence, less utility in developing climate policy. If you are interested in the idea, or have thoughts about who else might be interested, please give Ken Green a call at 202-XXX-XXXX at your convenience.
If you and Prof. North are agreeable to being authors, AEI will offer an honoraria of $10,000. The essay should be in the range of 7,500 to 10,000 words, though it can be longer. The deadline for a complete draft will be December 15, 2007. We intend to hold a series of small conferences and seminars in Washington and elsewhere to coincide with the release of both the FAR and our assessment in the spring or summer of 2007, for which we can provide travel expenses and additional honoraria if you are able to participate.
Please feel free to contact us with questions and thoughts on this invitation.
Cordially,
Steven F. Hayward, Ph.D, Resident Scholar
Kenneth Green, Ph.D, Visiting Scholar
In these letters AEI was certainly seeking out prominent analysts willing to participate in a critical examination of the IPCC report, but I don't think the letter suggests AEI wanted Professor Schroeder or anyone else to tailor their views to AEI's agenda. Rather it looks to me like an effort to encourage those who have been critical of climate projections in the past to provide a detailed assessment of the new IPCC report. A second letter was sent out earlier this year to a handful of scientists and economists and others seeking papers on climate change science and policy more broadly.
AEI President Christopher DeMuth took great exception to the Guardian story, and circulated the following memo to AEI staff.
February 2, 2007
NOTE FOR AEI SCHOLARS, FELLOWS, AND STAFF
Many of us have received telephone calls and emails prompted by a shoddy article on the front page of today’s Guardian, the British newspaper, headlined “Scientists offered cash to dispute climate study” (posted at http://environment.guardian.co.uk/climatechange/story/0,,2004397,00.html#article_continue).
The article uses several garden-variety journalistic tricks to create the impression of a story where none exists. Thus, AEI is described as a “lobby group” (we are a research group that does no lobbying and takes no institutional positions on policy issues); ExxonMobil’s donations to AEI are either bulked up by adding donations over many years, or simply made up (the firm’s annual AEI support is generous and valued but is a fraction of the amount reported—no corporation accounts for more than 1 percent of our annual budget); and AEI is characterized as the Bush administration’s “intellectual Cosa Nostra” and “White House surrogates” (AEI scholars criticize or praise Bush administration policies—every day, on the merits). All of this could have been gleaned from a brief visit to the AEI website.
But the article’s specific charge (announced in the headline) is a very serious one. Although most of you will appreciate the truth on your own, I thought it would be useful to provide a few details.
First, AEI has published a large volume of books and papers on climate change issues over the past decade and has held numerous conferences on the subject. A wide range of views on the scientific and policy issues have been presented in these publications and conferences. All of them are posted on our website. It would be easy to find policy arguments in our publications and conferences that people at ExxonMobil (or other corporations that support AEI) disagree with—as well as those they agree with and, I hope, some they hadn’t thought of until we presented them. Our latest book on the subject, Lee Lane’s Strategic Options for Bush Administration Climate Policy, advocates a carbon tax, which I’m pretty sure ExxonMobil opposes (the book also dares to criticize some of the Bush administration’s climate-change policies!).
Second, attempting to disentangle science from politics on the question of climate change causation, and to fashion policies that take account of the uncertainties concerning causation, are longstanding AEI interests. Several recent issues of our “Environmental Policy Outlook” address these issues, as does Ken Green’s “Q & A” article in the November-December issue of The American. The new research project that Ken and Steve Hayward have been organizing is a continuation of these interests. I am attaching the two letters that Steve and Ken have sent out to climate change scientists and policy experts (the first one emphasizing the scientific and climate-modeling issues addressed by the Intergovernmental Panel on Climate Change; the second, more recent one covering broader policy issues as well)—and invite you to read them and compare them with the characterization in the Guardian article. The first letter, sent last summer to Professor Steve Schroeder of Texas A&M (and also to his colleague Gerald North), is the one quoted by the Guardian. Ken and Steve canvassed scholars with a range of views on the scientific and policy issues, with an eye to the intrinsic quality and interest of their work rather than to whether partisans might characterize them as climate change “skeptics” or “advocates.” They certainly did not avoid those with a favorable view of the IPCC reports—such as Professor Schroeder himself.
Third, what the Guardian essentially characterizes as a bribe is the conventional practice of AEI—and Brookings, Harvard, and the University of Manchester—to pay individuals at other research institutions for commissioned work, and to cover their travel expenses when they come to the sponsoring institution to present their papers. The levels of authors’ honoraria vary from case to case, but a $10,000 fee for a research project involving the review of a large amount of dense scientific material, and the synthesis of that material into an original, footnoted and rigorous article is hardly exorbitant or unusual; many academics would call it modest.
We should all be aware that political attacks such as the Guardian‘s are more than sloppy or sensation-seeking journalism: they are efforts to throttle debate, and therefore aim at the heart of AEI’s purposes and methods. The successive IPCC climate change reports contain a wealth of valuable information, but there has been a longstanding effort to characterize them as representing more of a “scientific consensus” than they probably are, and to gloss over uncertainties and disagreements within the IPCC documents themselves. Consensus plays an important role in science and scientific progress, but so does disputation—reasoned argument is essential to good science, and competition of ideas is essential to scientific progress. AEI is strongly opposed to the politicization of science, just as it is to the politicization of economics and other disciplines. On climate change as on other issues, we try to sort out the areas of genuine consensus from the areas of reasonable debate and uncertainty. Ken and Steve’s letter to Professor Schroeder was clear about this: “we are looking for . . . a well-supported but accessible discussion of which elements of climate modeling have demonstrated predictive value that might make them policy-relevant and which elements of climate modeling have less levels of predictive utility, and hence, less utility in developing climate policy.”
The effort to anathematize opposing views is the standard recourse of the ideologue; one of AEI’s highest purposes, here as in many other contentious areas, is to ensure that such efforts do not succeed.
Chris DeMuth
If there were evidence that AEI was trying to get individual scientists to change their tune in return for large honoraria, there would undoubtedly be a story here. But there is no evidence this occurred. The general views of Professors Schroeder and North are well knowm to those who work in this area, and were unlikely to be swayed by ths offer (and they were not). More broadly, just as there may be financial incentives to write analyses desired by corporate funders, there are also financial incentives to tailor research projects and findings to increase the likelihood of receiving government grants. This is why I believe scientific studies should be analyzed on their merits, not the source of funding.
In the end, some may wish AEI was not sponsoring critical research and analysis of the IPCC report and current climate policy proposals, but it's hardly a scandal that they do.
UPDATE: AEI's David Frum chimes in here. Frum finds the Guardian story and the charges it has spawned to be absurd. Interestingly enough, Frum also supports the adoption of a carbon tax to address the threat of climate change.
Some folks have pointed me to this item on TNR's "The Plank" by Bradford Plummer. I don't find it any more compelling than the Guardian story, and the suggestion that there should be no criticism of the IPCC report because "any scientists out there who had legitimate complaints about the report . . .could have worked with the IPCC and registered their objections during the drafting process" is positively silly. Set aside the growing critique that the new IPCC report is not alarmist enough, as I discussed here, the Summary for Policymakers released last week is ultimately revised and approved by participating governments, not the hundreds of scientists who participate in the development of the underlying report. The actual IPCC report itself is not immune from critique either. As a "consensus" document that is based upon research conducted prior to a set date, it cannot hope to resolve all of the continuing debates about various aspects of climate science. Judgments are made during the drafting process to accomodate differing views. Further, it presents various scenarios with potentially different implications for public policy. Sincere efforts to distill, analyze, and critique the report, and explain why policy decisions should rely on certain findings more than others, are helpful to the policy development process. This is true whether such efforts are sponsored by AEI, the Pew Foundation, or Environmental Defense.
"It's Drinkin' Time!":
I haven't been on a college campus tour in a long time, but here's a pretty good prank courtesy of the Dartmouth Jack-O-Lantern. (The prank begins after about 45 seconds.)
Prospective students turned off by that during the tour probably didn't want to go to Dartmouth anyway. Hat tip: The IvyGate Blog
UPDATE: In the comment thread, "Q the Enchanter" writes, "Isn't this an indictment of our entire American society?" Dean Wormer, is that you?
As I've noted before, friends of Israel sometimes use overwrought charges of anti-Semitism to try to silence critics of Israel. That's undeniable, and regrettable.
Equally undeniable, and regrettable, is when a friend of Israel criticizes critics of Israel, and then gets accused of calling everyone who criticizes Israel anti-Semitic, even when the author never mentioned anti-Semitism, and even, oddly enough, when the author has explicitly disclaimed any intention of suggesting that the individual he criticized is anti-Semitic. I've lost count of how many times commenters on this blog have written something along the lines of "there goes Bernstein again, claiming that legitimate criticism of Israel is anti-Semitism," when accusations of anti-Semitism were never leveled, and even when they were explicitly disclaimed.
Consider how Matthew Yglesias (note: who, for the record, I think is neither anti-Semitic, nor even "anti-Israel", but is far too kind to those who are, perhaps under the "an enemy of my enemy [Bush foreign policy] is my friend" theory) portrays the recent AJC study on leftist Israel-hating Jews, who, according to the study, are playing into the hands of growing genocidal anti-Semitism in the Muslim world by engaging in highly inflammatory rhetoric criticizing Israel in terms normally reserved for brutal dictatorships. Yglesias sums it up as "AJC's 'Jews who have different political opinions from ours are anti-semities' [sic] essay."
Just as when you criticized Leon Wieseltier for calling Tony Judt an anti-semite, only except for that part where he explicitly wrote "Tony Judt is not an anti-semite." You know, for someone in the midst of a crusade against rhetorical sophistry re: Israel & anti-semitism, & someone who defended Clark's inartful expression against accusations of anti-semitic conspiracy theory, you seem to have a nasty habit of misrepresenting other's views re: Israel/Jews. In the Matthew Yglesias equation, the rules are turned completely on their head; anyone who criticizes another commentator for treating the subject of Israel & the Jews in a manner, to quote Wieseltier "Icily lacking in decency" is accused of anti-semitism baiting.
Unfortunately, Yglesias is hardly alone.
So on the one hand, we have friends of Israel who are too quick to label others anti-Semitic, though I believe that this phenomenon is declining, as it has received increasing scrutiny and criticism. On the other hand, we have critics of Israel who try to portray anyone who defends Israel as a hysteric who sees anti-Semitism everywhere. This seems to be on the rise. And the most vociferous critics of the former phenomenon tend to be the most egregious participants in the latter.
There is a flap about whether returning Vietnam veterans were really spat upon (via Instapundit). One commenter at Countercolumn says that Bob Greene, a former Chicago columnist, wrote a column in the 1980s saying that it was a myth. He received so many stories of spitting that he interviewed the purported victims and wrote a book concluding that many such stories were probably true.
Then Jerry Lembcke wrote a book saying it was a myth, that he researched news stories and they started appearing around 1980. I have no independent source of information on this, but having done literally thousands of WESTLAW and LEXIS/NEXIS searches, I can say that when something starts appearing in the press in the early 1980s, that is almost always a function of when these two news services started including the full texts of major newspapers. (I find a clear Feb. 1, 1981 reference in the New York Times.) Although I can't say for certain that Jerry Lembcke made this error in his research, I can say that my students make this error all the time. I haven't yet read either Greene's or Lembke's book, but in my experience when someone says that a word usage or a story starts appearing around 1980 or in the early 1980s, they are almost always reflecting the limitations of their online search database, rather than the origins of the phenomenon they are tracing.
I'm suspicious of the coincidence between Lembke's account and the beginning of full-text coverage in WESTLAW and LEXIS. In other words, did Lembke's research show that such stories began appearing in the early 1980s, or did his research show that by 1981-82, when the major newspapers came online in full text, the story was already well known?
UPDATE: In the comments below are several seemingly credible first-hand accounts of being spat on. In addition, several note a bunch of 1971 published stories (I found one in the June 2, 1971 Chicago Tribune) involving the claims of an anti-John Kerry serviceman that he was spat on.
I was also able to confirm my speculation above that the spitting meme may have been spread long before 1980. Alfred Kitt, after he had resigned as General Counsel to the Army and was working at Yale, wrote a heartfelt Sept. 15, 1971 op-ed in the Washington Post, looking back on working in a situation in which many thought him a war criminal--and even his own family was against him. Kitt also discussed the plight of the ordinary soldier, including this sentence: "You can’t be fond of being spat on, either literally or figuratively, just because of the uniform you’re wearing."
Yale Law Professor and prominent blogger Jack Balkin has an interesting discussion of some of the most prominent law professor blogs and the impact of blogging on legal scholarship and political discourse here.
In one part of his post, Balkin puts forward a theory explaining which law professors are most likely to succeed as bloggers:
The most successful blogs tend to be run by younger law professors who aren’t necessarily at the top-ten schools. That’s because if you’re an established professor at a top-ten school, you are already probably getting significant positive reinforcement for what you are doing. But if you’re a law professor who’s trying to establish a name for yourself, you quite understandably feel that not enough people are paying attention to what you’re saying. The blogosphere is a wonderful way for you to put your ideas out there and gain an audience for ideas you think are valuable and worthwhile. Blogging democratizes legal commentary; it publicizes the scholarship and the expertise of a large number of law professors who would not have gotten a voice before.
I think there is some truth to this. However, several of the most prominent and successful lawprof bloggers are in fact professors at top ten schools, including Richard Posner, Larry Lessig, and of course Balkin himself. Many other prominent lawprof blogs were founded by professors at schools just outside the US News top ten (ranked roughly 11-20). Brian Leiter's various blogs, Steve Bainbridge, and of course the Volokh Conspiracy are obvious examples.
Balkin is absolutely right that blogging is a way for younger professors at non-top ten schools to increase their profile and broaden the readership for their scholarly work; I have pursued this strategy myself:). On the other hand professors at top schools have some important advantages in the blogging enterprise. In particular, a new blog founded by a professor at a famous school is more likely to quickly attract the attention of readers than one founded by a prof at a lower-ranked institution. If you hear that there's a new blog started by a professor at Yale, you are far more likely to go take a look than if you hear that there's a new blog started by a professor at the University of Southern North Dakota. It is relatively easy to start a blog, but much harder to attract an audience and acquire influence. Being at an elite institution is a big help in achieving these two goals.
Blogging does to some degree "democratize" legal academic discourse for the reasons Balkin indicates. But it also sometimes reinforces existing inequalities. That is not necessarily a bad thing. The purpose of blogging, in my view, should be to improve the quality of public discourse more than to "democratize" it.
Balkin also makes many other thought-provoking points. As they say, read the whole thing.
Football Players Ruining Bodies For Pleasure of Strangers.—
As Merle Kessler once observed:
“Football players, like prostitutes, are in the business of ruining their bodies for the pleasure of strangers.”
Now come claims that Bill Belichick pressured one of his players to practice against the advice of the trainer, causing permanent brain damage (NY Times):
Former New England Patriots linebacker Ted Johnson said coach Bill Belichick subjected him to hard hits in practice while he was recovering from a concussion — against the advice of the team's top trainer.
Johnson, who helped the Patriots win three Super Bowl titles before retiring two years ago, told The New York Times that a collision with another player during that 2002 practice led to another concussion. And, after sustaining additional concussions over the next three seasons, he now forgets people's names, misses appointments and suffers from depression and an addiction to amphetamines.
''There's something wrong with me,'' the 34-year-old Johnson said in Friday's Times. ''There's something wrong with my brain. And I know when it started.''
Do Men and Women Tend to Favor the Same Presidential Candidates in the General Election?--
There has been a recent dust-up between Linda Hirshman on one side and Mark Schmitt and Ann Althouse on the other. (Count me as a fan of both Linda's and Ann's scholarship.) If I am reading correctly, there seems to be an impression that women’s votes seldom determine the outcome of presidential elections. Usually both men and women favor the same candidate, so generally neither men nor women control the outcome.
According to exit poll data reported in the New York Times, a plurality of women have voted for the candidate getting the most votes in every presidential election since 1972 except for the last one, 2004 (when they favored Kerry). And men have voted for the plurality winner in every election since 1972 except 1996 (when they favored Dole) and 2000 (when they favored Bush). So women’s first choices have lost 1 election in the popular vote and 2 elections in the electoral vote, while men’s first choices have lost 2 elections in the popular vote and 1 election in the electoral vote.
Bottom line: The assumption that women’s preferences for president seldom determine the outcome of a presidential election is indeed true. But then men’s preferences are seldom dispositive either. On the other hand, in each of the last three presidential elections, men and women have differed in their first choices for president. We may have entered a new era in which the winners of presidential elections don’t receive a plurality from both genders.
The letter "X" soon may be banned in Saudi Arabia because it resembles the mother of all banned religious symbols in the oil kingdom: the cross.
The new development came with the issuing of another mind-bending fatwa, or religious edict, by the infamous Commission for the Promotion of Virtue and Prevention of Vice -— the group of senior Islamic clergy that reigns supreme on all legal, civil, and governance matters in the kingdom of Saudi Arabia.
The commission's damning of the letter "X" came in response to a Ministry of Trade query about whether it should grant trademark protection to a Saudi businessman for a new service carrying the English name "Explorer." ...
Among the commission's deeds is the famed 1974 fatwa -— issued by its blind leader at the time, Sheik Abdul Aziz Ben Baz — which declared that the Earth was flat and immobile....
UPDATE: Bill Poser (Language Log) points out that "in some circles in Israel, the plus-sign is avoided due to its resemblance to the cross and is replaced with a version that looks like this: ﬩ It is actually in Unicode, at codepoint U+FB29, dubbed HEBREW LETTER ALTERNATIVE PLUS SIGN." Zayiny! (Well, OK, not quite.)
Poser's correspondents report that "the truncated plus sign turns up in some ulpan (Hebrew language classes for non-Israelis) and in the lower grades of primary school." That strikes me as pretty silly -- a weird signal of insecurity that shows you're obsessed so with the other religion that anything that even reminds people of it is somehow seen as a threat. But at least not as bad as trying to demand that private enterprises do the same.
On the other hand, those crescent-shaped bananas ....
Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected. One even claimed that I was merely spreading "corporate tort reform propaganda." Coincidentally, I just came across the following paragraph in a publication of the American Trial Lawyers Association, an organization for plaintiffs' attorneys:
In the years since Daubert, often the most daunting challenge faced by a plaintiff in a federal drug or medical device case is overcoming the defendant's challenge to the plaintiff's experts. As a result, many plaintiffs' attorneys choose to keep their cases out of federal court by any means possible, since the majority of state courts--even those that have adopted the Federal Rules of Evidence or a close approximation thereof--have rejected a strict application of Daubert and its progeny. In many cases, this has led plaintiffs' attorneys to bring in as additional defendants treating doctors, pharmacies, or suppliers, so as to destroy the diversity between all parties necessary for federal court jurisdiction. Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state.
Justice Alito at GW Law:
Yesterday GW Law held the final round of its annual moot court competition, and we were honored to have another stellar panel of judges this year: Justice Samuel Alito presided, and was joined by Judge Jose Cabranes of the Second Circuit and Judge Diane P. Wood of the Seventh Circuit. It was a terrific event all around. Congratulations to the winners of the competition, my former students Jonathan Bond and Eric Klein. The law school website has posted a page about the event, and you can see it here.
The Associated Press is reporting that Cully Stimson resigned today "over controversial remarks in which he criticized lawyers who represent terrorism suspects." According to the report, Stimson "made his own decision to resign and was not asked to leave by Defense Secretary Robert Gates." According to a Defense Department spokesman, Stimson beleived the controversy over his remarks "hampered his ability to be effective" in his position at the Department.
Glenn Reynolds has a test to determine the sincerity of those who call for reducing greenhouse gas emissions: Limits on private planes and stretch limos. He writes:
No, seriously. A Gulfstream III releases 10,000 pounds of carbon dioxide an hour. How can we demand "sacrifice" from ordinary Americans when our leaders — including those who call for the sacrifice — are flying in jets like this? If commercial first-class isn't good enough, they should stay home.
Of course, if the United States and other industrialized nations adopted a carbon tax (or its equivalent), those who can afford private jets could likely afford the tax as well.
UPDATE: Glenn Reynolds offers more detail about his views on climate change policy here.
Another Strange Use of Language in the Times's Article on the AJC Study:
Ilya points out below that N.Y. Times reporter Patricia Cohen refers to the American Jewish Committee as a "conservative advocacy group", when its policy positions are mainstream American liberal.
Equally oddly, the Times's headline screams: "Essay Linking Liberal Jews and Anti-Semitism Sparks a Furor." The first paragraph relates: "The American Jewish Committee, an ardent defender of Israel, is known for speaking out against anti-Semitism, but this conservative advocacy group has recently stirred up a bitter and emotional debate with a new target: liberal Jews."
In fact, paging through the essay that is the subject of the Cohen story, the author never identifies his opponents as "liberal Jews," but as "'Progressives'" who viciously attack Israel. Note the double quotes: the author of the AJC piece is suggesting that the relevant individuals think of themselves as being progressive in their thinking, but actually are not. He even refers to "individuals who refer to themselves as "'Progressives'", but he never calls them "liberals."
Cohen knows, or should know, that self-styled "Progressives" are generally well to the left of mainstream American political opinion, and certainly an essay for a liberal organization attacking self-styled Progressives is going to be attacking leftists, not liberals. And even if she didn't manage to grasp this, if one looks at the actual targets of the essay--individuals such as Adam Shapiro, Noam Chomsky, Adrienne Rich, Tony Judt--it's pretty obvious that with few exceptions, the article is targeting radical leftists, not mainstream liberals. This continues the Times's grand tradition of almost never calling anyone on the left, no matter how far left, anything other than a liberal, while using various extremist appellations (far right, right-wing, etc.) for even moderate conservatives. Calling an obviously liberal organization like the AJC "conservative," however, is new even for the Times (to my knowledge), and it reminds me of the nomenclature in radical circles when I was in college: Leftist was "progressive" or "liberal," liberal was "conservative," and conservative was "reactionary" or "far-right" or "fascist." Sad to see that the Times' editors are using (or allowing the use of) nomenclature better suited for a Berkeley alternative weekly than for the nation's leading "paper of record."
If all a Times reader read was the headline and the first paragraph, one would get the impression that the furor is about a conservative Jewish organization attacking liberal
Jews for promoting anti-Semitism for some unspecified reason. The furor is actually about a liberal Jewish organization attacking leftist Jews for giving aid and comfort to genocidal anti-Semitism in the Islamic world by vicious and uncalled for attacks on Israel. You would never find this out from reading even the whole of Cohen's article, because the words "Muslim," "Islamic," and "Arab" never appear in it.
UPDATE: Here's how a better, or at least more neutral, reporter, might have phrased the first paragraph: "The American Jewish Committee, [a strong supporter of Israel], is [best] known for speaking out against anti-Semitism, but this [liberal Jewish] advocacy group has recently stirred up a bitter and emotional debate with a new target: [self-styled Progressive] Jews [who it claims aid and abet growing worldwide anti-Semitism, especially in the Muslim world, by engaging in rhetorical warfare against Israel]."
FURTHER UPDATE: Checking around the blogosphere via Technorati, I see that many bloggers simply accepted Cohen's characterization of the controversy without actually reading the underlying AJC paper. Some aspects of the paper are far from unassailable, but it's simply incorrect to suggest that the paper itself targets mainstream liberal critics of Israel for any criticism they make of Israel, and the author draws a clear distinction between anti-Semitism, and "progressive" views expressed in such a way as to give aid and comfort to anti-Semites. I think the paper raises this very interesting issue: if you are left-wing Jew who is hostile to Israel, but are aware that expressing this hostility in an unvarnished way is encouraging anti-Semitism, do you have a responsibility to temper your criticism, or at least the way you express it? And that goes for non-Jews hostile to Israel, too.
Today the U.S. Court of Appeals for the Sixth Circuit denied the petition for panel rehearing and rehearing en banc in Slagle v. Bagley. As I posted here, the original three-judge panel split over whether Billy Slagle's capital conviction for the aggravated murder of Mari Anne Pope (whom he stabbed seventeen times with sewing scissors) should be overturned due to alleged prosecutorial misconduct in the form of improper statements by the prosecuting attorney. Judge John Rogers and Cheif Judge Danny Boggs concluded that the statements were insufficient to render the trial and resulting conviction unfair. Judge Karen Moore dissented.
Today, Judge Moore reiterated her dissent from the original panel's decision, and Judge Boyce Martin dissented from the decision to deny the petition for en banc review. Accoring to Judge Martin:
Any student or practitioner of the law — indeed, any casual viewer of Law & Order — would find it obvious that the repeated, unduly prejudicial comments of the prosecutor in this case were highly improper. And yet an attorney not only admitted to practice in Ohio, and not only employed by the state prosecutor’s office, but charged with the duty to prosecute a criminal trial with the highest possible stakes, found it appropriate to repeatedly make such comments. Further, the state trial judge, who is entrusted with profound Constitutional responsibilities, presided over a trial where these comments were made over and over again. The debasement of the ethical code of our profession and the rules of evidence and procedure that occurred at Slagle’s trial are emblematic of how the politicization of the death penalty has undermined the administration of criminal law in this country.
Chief Judge Boggs also wrote a decision concurring in the denial of rehearing en banc, which reads:
Because dissents from our court’s denial of rehearings en banc are quite rare, the lack of any countering views at the time of such a dissent may be taken to mean that the contrary views presented are unanswerable.
Instead, it is usually the case that the original opinion has carefully considered and answered any substantive points made in the dissent from denial of rehearing en banc.
So it is in this case. Judge Rogers’s excellent opinion carefully applied existing law with respect to analyzing statements, made during the course of a long and contentious trial, that may be characterized as improper statements by a prosecutor. The law never has been, in a capital case or otherwise, that every or even multiple prosecutorial errors, objected to or not, cured or not, can bring a grant of habeas corpus in federal court, years or decades down the road. Instead, the law prescribes a method for analyzing the import, motive, frequency, and prejudice from any such remarks, which is exactly what Judge Rogers’s opinion did, and that opinion fully answers the substantive portion of the dissents.
And that's not all, for the Sixth Circuit issued an opinion in another habeas case today in which the court panel was once again divided. In Carroll v. Renico, the court, in an opinion by Judge Rogers joined by Judge Jeffrey Sutton, rejected Jarmaine Carroll's petition for a writ of habeas corpus alleging improper jury contact and a violation of his Sixth Amendment right to counsel by allowing co-defendant's counsel to "stand in" for Carroll's attorney during reinstruction of the jury. Judge Eric Clay agreed with the majority on the first claim, but dissented on the Sixth Amendment claim.
I should also note that the Sixth Circuit issued another interesting divided opinion in a non-habeas case arising out of a man's arrest for yelling "God Damn" at a town meeting. In this case, Chief Judge Boggs wrote for the majority, while Judge Sutton wrote a dissent. Howard Bashman has more on this decision here.
According to Roger Alford at Opinio Juris, Jan Crawford Greenburg does not believe there will be another Supreme Court opening while President Bush is in office. Speaking at Pepperdine, Greenburg commented that, based upon the interviews she conducted for her book, neither Justice Stevens nor Justice Ginsburg appears ready to retire. Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."
Today the Intergovernmental Panel on Climate Change released the "Summary for Policymakers" of the first volume of its Fourth Assessment report on the science of climate change, focusing on the causes, human contribtions, and future projections of climate change. The New York Times covers the release here. The underlying report itself will be published by Cambridge University Press, but an outline is available here.
The Summary for Policymakers provides a layperson friendly summary of the scientific report itself. As such, it typically lacks the nuance, qualifying language, and scientific precision of the underlying study. Indeed, as the IPCC notes, the Summary for Policymakers is drafted by a handful of contributors to the underlying report, and then reviewed and revised by representatives of participating governments before its ultimate publication. (See the NYT's account of this process here.) For this reason there is often some controversy over how the summary document represents some of the more contentious or uncertain issues addressed in the report itself.
In a related vein, yesterday's New York Times reported that the new IPCC report is receiving criticism from some unexpected quarters. In the past, it was climate skeptics who challenged the IPCC's conclusions, and questioned over-reliance upon a purported scientific "consensus." As a result, they labeled "extreme" and "out of the mainstream" for challenging the official "consensus."
Now, however, some of those with more apocalyptic views of climate change are challenging the consensus report (even before it was released) complaining that the IPCC is not alarmist enough. In particular, they object to the lowering of worst-case projections of potential sea-level rise in the new report. (See, e.g., here.) There is also a brewing controversy about how the IPCC characterizes the potential link between global warming and hurricane intensity, reported by Roger Pielke Jr. (see also here) and Chris Mooney. Time will tell what effect these disputes have on the IPCC's effort to do climate science by consensus.
Evolutionary Psychology and Law Encyclopedia Entry:
My new essay on "Evolutionary Psychology," which is forthcoming in the Encyclopedia of Law and Society: American and Global Perspectives, is now available on SSRN.
Here's the Abstract:
Abstract:
This is the entry for “Evolutionary Psychology” in the Encyclopedia of Law and Society: American and Global Perspectives. This entry provides a summary and overview of the science of evolutionary psychology and its implications for the study of law. Understanding how evolution has shaped human nature and individual preferences can provide insight into how to use law to direct individual behavior in pro-social directions and away from anti-social behavior. This essay provides an overview of the science of evolutionary psychology, especially as it manifests itself in human proclivities for cooperation and conflict. In contrast to the Hobbesian view of human nature that implicitly underlies the modern understanding of law, evolutionary psychology provides several models of cooperation in the absence of law. But evolutionary psychology also provides insights into the nature of social conflict and the challenges this presents for legal regulation. Finally, the article describes the research program of law and evolutionary psychology, the testable hypotheses of evolutionary psychology, and the criteria for distinguishing evolutionary explanations of human behavior from legalistic and norms-based theories.
It's a short piece written for an encyclopeida, and given the vast scope of the subject it necessarily skims the surface and omits much nuance and many important issues. And despite the extensive references, the editors deleted many others, so allow me to apologize in advance if your favorites did not make the cut. Despite all this, I hope you find it useful.
The New York Times and the "Conservative" American Jewish Committee:
The New York Times story on the American Jewish Committee's report criticizing left-wing opponents of Israel describes the AJC as a "conservative advocacy group."
This statement is very hard to reconcile with the facts, unless the Times is using an extremely idiosyncratic definition of "conservative." Like most mainstream Jewish organizations, the AJC is in fact dominated by political liberals.
The AJC's positions on public policy issues reflect this orientation. For example, its web page listing "Domestic Policy Statements" includes press releases decrying conservative criticisms of the "independent judiciary," supporting equal rights for gay couples and opposing the federal anti-gay marriage amendment, opposing Republican efforts to change Senate rules that permitted Democratic senators to filibuster Bush's judicial nominees, embracing the cause of DC statehood (a position supported by most liberal Democrats and opposed by most Republicans and conservatives), advocating for the rights of illegal immigrants and so on. The AJC has also taken generally liberal positions on separation of church and state (e.g. - opposing religious displays on public property), and education policy, among other issues.
If the Times can be so wrong about the simple and fairly obvious fact that the AJC is a liberal organization (or at the very least not a "conservative" one), it is difficult to put much faith in the validity of the other statements in the article.
There are, to be sure, different definitions of what it means to be "conservative." But it's hard to believe that a group with the above set of positions could reasonably be described as "conservative" in a way that conforms to the generally accepted usage of that term in modern American political discourse.
Perhaps Times reporter Patricia Cohen merely meant to say that the AJC is "conservative" on Israel-related issues. Even this characterization is questionable, given that the organization endorses the idea of a Palestinian state and strongly supported the Oslo "peace process" (which most Israeli right-wingers and American Jewish conservatives opposed). But if this was the meaning that Cohen had in mind, she should have at the very least indicated that the AJC is "conservative" on Israel-related issues, while taking liberal stances on most other issues.
UPDATE: Here is the AJC's own statement denying that it is a conservative organization. The AJC claims that "it is a strictly nonpartisan organization long viewed as centrist in its orientation." I think that "liberal" is a more accurate classification of the AJC than "centrist." Be that as it may, it certainly isn't conservative.
Does the National Rifle Association Influence Federal Elections?
This is a new Issue Paper from the Independence Institute, by Christopher B. Kenny, Michael McBurnett & David J. Bordua. It's the first empirical study to conclusively demonstrate and quantify interest-group influence on Congressional elections.
Michael Rappaport on the Constitutionality of the Air Force:
University of San Diego law professor Michael Rappaport, a prominent originalist scholar, has two interesting posts (see here and here) building on my earlier discussion of the constitutionality of the Air Force under textualist and originalist theories of constitutional interpretation.
I agree with most of Michael's points, particularly his argument that critics of originalism (and also some defenders) often have a flawed and oversimplified view of what originalist constitutional interpretation entails. As I explained in this review of Justice Breyer's recent book on constitutional interpretation, such misunderstandings occur even (perhaps especially) at the Highest Court in the Land.
However, I think that an independent Air Force (as opposed to one that is part of the Army or the Navy) is more difficult to justify on textualist and originalist grounds than Michael suggests. Here's the relevant part of his argument:
To focus on the independence question, lets make the following assumption: The use of airplanes and other Air Force equipment would be constitutional if used by the Navy. That is, the term Navy in the Constitution does not preclude the use of this equipment. (This assumption must hold for the use of Air Force equipment to be constitutional as part of the Navy.)
Consider the following situation. Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B. They are independent of one another, but both are under the control of the Secretary of Defense and the President. Would this be constitutional? Of course. There is nothing in the Constitution that requires a single department.....
Now, add one more wrinkle: Congress has Navy A use different equipment than Navy B. This is also constitutional. There is no requirement that they be identical.
Finally, the last step: Congress changes the names from Navy A and Navy B to Navy and Air Force. This is obviously constitutional, since there is no requirement that any specific name be used. Put differently, that we call something the Air Force as a statutory matter does not decide the constitutional question of whether it is a Navy.
What this argument shows is that the independence of the Air Force is irrelevant.
To my mind, there is an important textualist objection to this argument: it renders Congress' power "to raise and support Armies" redundant. After all, if an independent Air Force can be justified by, in effect, considering it a separate Navy, why can't an independent Army be justified the same way? The issue is not so much whether we "call something the Air Force as a statutory matter," but whether the military service in question is primarily focused on land (the Army) or sea (the Navy) power or whether it has a different focus entirely. Otherwise, the power to establish an Army would be redundant, and Congress could easily circumvent the constitutional requirement that Army appropriations cannot be authorized for more than two years at a time simply by calling all federal military forces a part of the Navy. Airpower incorporated into the Army or the Navy as an adjunct to their efforts to wage war on land and sea does not raise the same sorts of constitutional issues.
To briefly reiterate the points made in my earlier post, I believe that airpower incorporated into the command structure of the Army and Navy is clearly constitutional under textualism and originalism. This dispels the nightmare scenario of having our armed forces deprived of air cover altogether, from which the anti-originalist use of the Air Force example derives most of its force. I also believe that even an independent Air Force might be constitutional on the basis of the Necessary and Proper Clause (combined with Congress' Article I powers). However, the originalist/textualist case for an independent Air Force is more difficult to make than Michael's argument suggests.
UPDATE: Michael responds to this post here. His reply is difficult to summarize, but if I understand it correctly, the key claim is that an independent Air Force is permissible under the text of Article I so long as the "powers" it exercises can legitimately be considered either "Army" or "Navy" powers. To the extent that "Army" and "Navy" powers are different from each other, Michael contends that his argument also avoids making the power to raise Armies redundant. There is a subtle shift here, or at least clarification, of Michael's original argument which focused not on "powers" but on equipment.
The focus on power is to my mind, more appropriate and keeps Michael from having to argue that using airplanes to engage in maritime warfare (which is indeed a "Navy power") is the same thing as using them for other purposes. But this revised or clarified argument still falls short of justifying an independent Air Force. A modern Air Force does things that don't fit neatly into either the Army or Navy box, such as strategic bombing, which is not directly linked to either ground or air operations.
If, on the other hand, Michael wants to define Army and/or Navy powers so broadly that Air Force missions such as strategic bombing can be shoehorned into one of the two categories, then at least one of them would again become redundant. Almost any Army operation could then be described as supporting the Navy or vice versa.
Chief Justice John Roberts Speaking at Northwestern.--
On the 217th anniversary of the first session of the U.S. Supreme Court, Chief Justice Roberts is speaking to the first-year Constitutional Law classes at Northwestern Law School.
In an easygoing talk without notes, Roberts began by making some relatively conventional comments about Marbury and judicial review, observations more in the traditional “heroic” mode that dominated Marbury scholarship until the last few years. After about 10 minutes, he began taking questions.
UPDATE: After 10-15 minutes, Roberts is now taking questions--and he is exceptionally impressive.
Roberts made some interesting comments about having a Constitutional Court, such as many European countries have. He favors a court of law that decides non-Constitutional cases as well, in essence because it leads to more disciplined (not his word) decisionmaking. Further, Roberts said that having Constitutional courts tends to lead to [some] eminent politicians being selected, instead of the sorts of lawyers chosen for our Court. "They function as part of the political process." Yet, as he argues, "The Constitution is law." [It is unclear how strongly as a descriptive matter Roberts believes that the U.S. Supreme Court is a court of law rather than a political court, but certainly he wants it to function as what he calls "a court of law."]
2d UPDATE: Robert then began telling some stories about the institutional weakness of the Court 1790-1800 (including one that I didn’t know about [John] Rutledge attempting suicide).
Then he mentioned the lack of public knowledge about the Court: If you look at polls, you see that “Everybody knows Judge Judy is on the Supreme Court.”
Asked about cameras in oral arguments, he offered these words: “Justice Souter said, ‘Over my dead body,’ and we all like Justice Souter.”
People say that televising proceedings would “educate the public about what the Court does. But our job is not to educate the public; it is to decide cases.”
3rd UPDATE: Asked about the practice of some members of Congress saying that they would leave it to the Court to decide whether their proposed law is unconstitutional. Roberts replied: “That is an abdication of their responsibility and their oath. All three branches have the same responsibility.”
But he noted: “I like to think that the judiciary is the least interested of the three branches at least where the case doesn’t directly involve the judiciary.”
4th UPDATE: Roberts called the Senate's role in questioning nominees during the appointment process "pretty disreputable." [Roberts had previously noted its early use by segregated Senators to slow down the aftermath of Brown v. Board of Educ.] I will post more on the last 15 minutes of questions and answers when I get a chance in a few hours.
5th UPDATE (Thursday evening): Perhaps the most interesting exchange was in response to a question from a student about the Supreme Court’s application of international law. (I do not have good notes on this, so my characterization may not be even a good paraphrase of what Roberts and the student said.)
Roberts, seeming to interpret the question as asking about foreign law, asked the student about a situation where most of the rest of the world treated the interpretation of an issue or norm in one way (that may differ from how it is treated in the U.S.). The student replied that this sounded like customary international law. Roberts said he was talking about the exclusionary rule. Other countries do not apply the exclusionary rule. Should the Court deciding a case involving the exclusionary rule say that we have these (U.S.) precedents, but we should put them aside in favor of international norms that do not follow the exclusionary rule? Roberts suggested that people tend to pick and choose which international norms they want to import into U.S. law.
(After the class, one of my colleagues noted that Justice Scalia had made much the same point in one of his dissents. Also, some countries that don’t have the exclusionary rule allow more routine suits against the police for wrongful searches.)
Those who read some of Chief Justice Roberts’s comments as I (imperfectly) note them here should recognize that I mostly mentioned what struck me as the high spots and that he often explained his positions in somewhat more depth than the brief snippets I reported. Without exception Roberts' responses to questions were extraordinarily lucid and quite fascinating. Although I did not necessarily agree with some of what he had to say, I confess that I was terrifically impressed. Compared to the only other Chief Justice whom I had seen during a law school visit (CJ Burger at Virginia in the 1980s), John Roberts was strikingly different: Roberts is straightforward, decent, modest, articulate, and whip-smart.
The New York Times has a story today about the buzz over an AJC study attacking leftist Jews who hate Israel; and I do mean hate, not simply "criticize," as the quotations collected in the piece show quite clearly (The author, however, at times goes overboard, as when he puts someone like Richard Cohen, who has doubts about whether it was wise to establish a Jewish state in hostile territory, in the same camp as the likes of Adam Shapiro of the International Solidarity Movement, and others who welcome terrorist violence against Israelis or call for the (inevitably violent) destruction of Israel).
It so happens that I corresponded with a VC on related issues over the weekend. I noted that one first has to separate sincere Jewish critics of Israel, who criticize Israel harshly and disproportionately because they would like to see Israel improve itself (from their perspective), and because as Jews they feel a special responsibility to see that Israel be a "light to the nations," from those who attack Israel from motives that reflect an underlying hostility to the very concept of a Jewish nation.
Why would a non-religious Jew be hostile to the concept of a Jewish nation-state(beyond, like Cohen (and me on some days) worrying about whether the establishment of Israel in its particular time and place will turn out, in retrospect, to have been a wise decision?), in others word, be anti-Zionist, in disproportion to their expressed hostility to any other form of nationalism?
There are those who have an internationalist, leftist perspective that hates all Western (but, oddly, not non-Western) nationalism. Israel is seen as a uniquely vulnerable example of such nationalism, one that is particularly dangerous because of its alliance with the United States, and one that is in the unique position of potentially being turned over in the near future to a Third World liberation movement. Today Israel, tomorrow all Western nation-states! Jewish leftists in particular volunteer for anti-Israel duty because they know they get they can get extra mileage out of attacking Israel precisely because they rightly believe that being Jewish inoculates them to some extent from criticism (how many times do we have to hear that Norman Finkelstein's mother is a Holocaust survivor, and why is it relevant? Torquemada's mother was a Jew coerced to convert to Catholocism, and that hardly made him a Boy Scout.)
Moreover, there's nothing new about ethnically Jewish leftists being on the forefront of attacks on established Jewish institutions. In Lenin's day in the Soviet Union, it was ethnically Jewish Communists who led the attack on Jewish cultural and religious institutions, which were decimated relative to, say, the Russian Orthodox Church. Beyond that, attacking other Jews has always been a way for Jews who wish to be accepted by groups hostile to Jewish corporate existence to prove their bona fides. A significant percentage of auto de faes in Europe during the Inquisition were instituted by Jewish apostates, the better to dissipate any suspicions of lingering loyalties to the Jewish community. Is it possible these days for a Jew to be accepted into radical left circles without going through the initiation rite of attacking Israel? As long ago as 1986, editors at the Village Voice made it clear that they wouldn't hire a Brandeis acquaintance of mine unless he was willing to denounce Israel (according to his version of events, he then walked out of the interview).
Other Jewish Israel-haters have what I consider a more innocent, but still seriously misguided, perspective: they actually associate their Jewish identity with victimhood, and would much rather Jews continue to be the victims than ever be perpetrators. At least in modern times in the Western world, perpetual victimhood has its advantages and thus attractions--it allows one to claim the moral high ground, and to claim special insight into the woes of the world. (I still remember a bizarre scene at Yale Law School during a "student strike for diversity" in which Yale Law students--overall a rather privileged lot--one by one strode to a speaker's podium to explain their personal victim status, including such gripping tales as being a first generation professional who wasn't sure how to dress for an interview at an elite New York firm. The horror of being on the cusp of a six figure job, but needing to ask the sales clerk at Brooks Brothers for advice!)
The problem such Jews have with Zionism is that having a nation-state for the Jews necessarily implies that the nation-state will sometimes misbehave (as all nation-states do). This in turn implies that to maintain Jewish victimhood, the sense that Jews are to play their assigned role as the Jiminy Cricket speaking to the world's conscience, that Jews, uniquely, may never have a nation-state. Unlike more generic leftist universalistic anti-Western nationalism, this is a specifically Jewish reason to be hostile to Zionism, and one that's quite foreign to my own thinking; given the choice, I'd rather not be a perpetual victim thank you, and I believe that's why the vast majority of other Jews also support Israel. But it's not at all uncommon to hear this particular version of anti-Zionism espoused by Jews.
Put another way, there is a segment of the American Jewish community, if asked to describe one of the great events of post-Holocaust Jewish history, would describe the murder of Andrew Goodman and Michael Schwermer while working for the cause of civil rights in Mississippi. This incident combines Jewish powerlessness and victimhood with a sense of innate Jewish goodness in a way that has a certain masochistic appeal to some Jews; the image of an Israeli soldier, which makes most Jews proud, revolts at least part of this segment of the community. This is actually a peculiar form of Jewish particularism, and one that I found far more chauvinistic in its own way than most versions of Zionism.
Historically, governments sought to spur innovation and the development of solutions to important social problems by offering prizes (including large sums of money) to the first person to solve the problem. As noted in this Daniel Drezner post (and in more detail here and here), this is an effectgive way to spur innovation, but not nearly so effective at meeting political demands. Subsidies and grants are far more popular for politicians, but it's not so clear they produce the same social benefits. Among other things, they encourage the politicization of science, require expenditures irrespective of whether a problem is solved, exclude potential sources of innovation, and fail to take advantage of dispersed knowledge. The problem, however, is that government subsidies and grants are easier to administer and in the interest of the political class.
Supreme Court Litigation Clinics:
The news that Harvard is joining the list of schools with Supreme Court litigation clinics makes me wonder -- how many years will it be before the number of law school Supreme Court clinics exceeds the number of merits cases on the Supreme Court's docket? (Hat tip: The Bashmanator)
A funny Web site ("First Life is a 3D analog world where server lag does not exist" / "Fornicate using your actual genitals"), with an amusing response purporting to be from the Second Life people in the "Comments or cease and desist letters?" page.
I don't think it's possible to justify all the plot holes and internal contradictions in the six Star Wars movies, particularly those in the, ahem, less-than-stellar, Episodes I-III. However, this is an interesting effort to address at least some of them (hat tip:co-blogger Tyler Cowen). In particular, the author explains how it is that Chewbacca is a high-ranking Wookie leader in Episode III, yet has fallen to the level of a sidekick for an impecunious smuggler by the time of Episode IV.
However, there are just far too many holes in the Stars Wars for even the most impressive Jedi mind tricks to patch up. This analysis ignores two of the biggest ones:
1. At the end of Episode III, Obi-Wan and Yoda try to hide the existence of the twin children from their father, Darth Vader. Unless they have gone over to the Dark Side themselves, why would the supposedly wise Jedi masters even consider "hiding" Luke with his uncle and aunt (Vader's only living relatives, so far as he knows) on Tatooine (Vader's home planet) and having the child live under his own name? It's as if Osama Bin Laden tried to hide from Bush by renting an apartment under his own name next door to the Bush ranch in Crawford, Texas. Hiding Leia with Senator Bail Organa on Alderaan seems smart by comparison, but it's pretty boneheaded as well. Organa is a prominent political opponent of the Emperor's and he's going to be under constant surveillance by the Empire even if they don't suspect that he's hiding one of Vader's children. Given that the Sith can detect even latent force abilities at a great distance, Leia should have been found very quickly indeed (though not as fast as Luke!).
2. Given the above, it's totally inexplicable that the Emperor and Vader fail to find the two children in the twenty-plus years that pass between Episode III and Empire Strikes Back. In the original Star Wars, Vader even interrogates and mind-probes Leia, but still fails to figure out that she is his daughter, or even that she has Force abilities (even though in Episode I and Return of the Jedi we learn that any competent Jedi or Sith can detect such abilities even at a great distance). The Emperor and Vader were either 1) complete morons (In which case, who would want to bring back a Republic so pathetic it could be overthrown by the likes of them?) 2) actively trying to sabotage their own government, or 3) handicapped by an incompetent screenwriter.
Although clever and original, this Chewbacca defense will convince only the weak-minded.
For a more comprehensive takedown of the Stars Wars movies, see these essays by science fiction writer David Brin. To paraphrase Darth Vader, Brin is not as forgiving of Star Wars as I am.
UPDATE: Although I ultimately don't agree with most of their points, I am impressed with the ingenuity of many of the commenters who have made valiant efforts to defend George Lucas' handiwork and reconcile the seeming inconsistencies. I wish that I could get law students to work this hard on analyzing case law:).
In the end, however, the big problem with elaborate, after-the-fact explanations of the plot holes in Star Wars is that there is little if any hint of these explanations in the movies themselves. For example, if it is indeed true that Vader failed to detect Luke over the twenty year period from the Episode III to the Empire Strikes Back because he deliberately broke off all connection with Tatooine and his old family, it would be nice if there was at least a brief line in which Vader or someone else says so. To my mind, a plot hole that can only be explained away through an elaborate post hoc rationalization that is not mentioned in the film itself, is probably a hole that can't be explained at all.
A sign at the entrance of this rural Quebec town says: Herouxville welcomes you. Unless, that is, you plan on stoning a woman to death, sending your kids to school with a kirpan or covering your face other than on Halloween.
The town council of Herouxville, a sleepy town dominated by a towering Roman Catholic church, has adopted a declaration of "norms" that it says would-be immigrants should be aware of before they settle in this town.
Among them, it is forbidden to stone women or burn them with acid.
Children cannot carry weapons to school. That includes ceremonial religious daggers like kirpans even though the Supreme Court of Canada has ruled that Sikhs can carry kirpans in schools.
However, children can swim in a pool with other children — boys and girls alike because they can't be segregated.
And for the record, female police officers in Herouxville, 165 kilometres northwest of Montreal, can arrest male suspects. Also part of the declaration is to allow women to drive, dance and make decisions on their own....
The small town, near Shawinigan in central Quebec, has only one immigrant family and wants more.
But [town councillor Andre] Drouin said the declaration, which was posted on the town's website and sent to the provincial and federal immigration ministers, is the result of a number of recent culture clashes across the country....
B'nai Brith Quebec deemed the declaration "an anti-immigrant, anti-ethnic backlash" and Salam Elmenyawi, head of the Muslim Council of Montreal, called it insulting.
"Why are they picking on Islam and Muslims?" he asked, adding he wonders why the Herouxville council hasn't weighed in on society's ills in general.
The declaration is full of stereotypes, he said, adding that his wife can drive a car and Muslim women do have rights....
Herouxville practices the quaint cultural custom of using French on its Web site, so I couldn't find the declaration, but if anyone can point me to it — or to an English translation — I'd be much obliged. Thanks to reader Christopher Ferguson for a pointer to the English-language version of the Herouxville declaration.
Thanks to my student Maureen Carroll for the pointer.
Thoughts on the Boyd Case:
I wanted to offer a few thoughts in response to Doug Berman's post (mentioned by Jonathan below) about Judge Posner's sentencing opinion in United States v. Boyd.
One way to read Doug's post is that he finds it objectionable — or more specifically, contrary to "numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government" — that a federal district court determined beyond a reasonable doubt whether the defendant violated state law. He writes:
Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness. Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness. On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense.
On this issue, my sense is that Doug's concerns are misplaced. Federal law occasionally requires federal district courts to try defendants for violations of state criminal law. Consider prosecutions brought under the Assimilated Crimes Act, 18 U.S.C. 13. The Assimilated Crimes Act was first enacted in 1825, and it federalizes state criminal laws on federal property in some circumstances. Prosecutions brought under the ACA require federal courts to hold trials on whether defendants violated state criminal laws — even state criminal laws enacted after the passage of the ACA. The Supreme Court upheld the ACA as constitutional in United States v. Sharpnack, 355 U.S. 286 (1958), and under Sharpnack Congress seems to have pretty wide authority to adopt state law as a controlling federal standard.
So to the extent Doug suggests that having federal judges try defendants for violations of state law (with federal consequences) is unconstitutional, I don't think that's right under Sharpnack.
Doug also notes that that Indiana prosecutors did not indict or try Boyd for this state offense. This is true, but I'm not sure why it is relevant. Blakely requires proof beyond a reasonable doubt of each element of the statutory offense, and the statutory offense does not make a state conviction an element. Perhaps I'm missing something, but it seems pretty sensible to me for a trial judge to try to square Congress's language with the Supreme Court's Blakely decision by determining beyond a reasonable doubt whether in fact Boyd committed the state offense. So if the district court held a mini-trial on the sentencing element, then that