Saturday, September 1, 2007

Percentage of the Way Through Karl Rove's case for the Presidency of George W. Bush before Rove mentions the word "Iraq": 80. Number of times the word "Iraq" appears in the 2,000 word essay: 2.

Related Posts (on one page):

  1. Karl Rove's Defense of Bush:
  2. Percentage of the Way Through Karl Rove's

It's Official: Larry Craig is resigning, effective one month from now. It's interesting to consider what role the Internet had in speeding this along. The story broke on Monday. Thanks to the Internet, anyone interested in this story could see the original court documents, read the police report, listen to the post-arrest interview, and watch and read the entirety of Craig's press statements. With all that evidence so widely available so soon, it's not surprising that Craig would announce his resignation only five days later.

Dartmouth as a Case Study in University Governance:

Larry Ribstein and Owen Business School Professor Luke Froeb analyze the latest events at Dartmouth as a case study of modern university governance. Larry links to an editorial and an interview with T.J. Rodgers published in the Wall Street Journal today. The editorial is subscriber-only but the interview is available for free on Opinion Journal (I understand that the editorial will be publicly available at some point as well). The American Council of Trustees and Alumni has previously discussed some of these governance issues in more detail here.

I also agree with Larry that Henry Manne's article is probably the single best analysis of the question of university governance that I have read. Highly recommended for those interested in this issue.

My take on one aspect of the issue of university governance, relating to the growth in university bureaucracies over time, is available here. One thing that struck me in writing that paper was that I came to it with the "faculty ownership" model of the university. So I was surprised to discover how much independent power academic bureaucracies and administrators have to replicate themselves and their budgets, not only exploiting agency costs with respect to the Board and students, but even with respect to the faculty.

There appears to have been very little written on the internal political economy of university bureaucracies. The best source that I found is a short book by Ryan Amacher and Roger Meiners, "Faulty Towers." Luke Froeb's blog is a new blog that is tied to the publication of his book Managerial Economics: A Problem Solving Approach. The blog uses current news events and acedmic research as examples and applications of the concepts presented in the book, but the posts are interesting stand-alone discussions as well.

The Politics of Breast Feeding (Ads):

The Department of Health and Human Services commissioned an advertising campaign to increase public awareness of the benefits of breast feeding. Breast feeding rates appear to be on the rise, but the United States still lags behind other developed nations. The campaign was to feature striking images that would highlight the potential health problems of not breast feeding infants, but infant formula makers objected. As a consequence, according to this report, the ads were watered down, compromising their effectiveness.

The milder campaign HHS eventually used had no discernible impact on the nation's breast-feeding rate, which lags behind the rate in many European countries.

Some senior HHS officials involved in the deliberations over the ad campaign defended the outcome, saying the final ads raised the profile of breast-feeding while following the scientific evidence available then -- which they say did not fully support the claims of the original ad campaign.

But other current and former HHS officials say the muting of the ads was not the only episode in which HHS missed a chance to try to raise the breast-feeding rate. In April, according to officials and documents, the department chose not to promote a comprehensive analysis by its own Agency for Healthcare Research and Quality (AHRQ) of multiple studies on breast-feeding, which generally found it was associated with fewer ear and gastrointestinal infections, as well as lower rates of diabetes, leukemia, obesity, asthma and sudden infant death syndrome.

The report did not assert a direct cause and effect, because doing so would require studies in which some women are told not to breast-feed their infants -- a request considered unethical, given the obvious health benefits of the practice.

The article describes how the industry sought to influence the ad campaign.

Two of the those involved were Clayton Yeutter, an agriculture secretary under President George H.W. Bush and a former chairman of the Republican National Committee, and Joseph A. Levitt, who four months earlier directed the Food and Drug Administration's Center for Food Safety and Applied Nutrition food safety center, which regulates infant formula. A spokesman for the International Formula Council said both were paid by a formula manufacturer to arrange meetings at HHS.

In a Feb. 17, 2004, letter to Thompson, Yeutter began "Dear Tommy" and explained that the council wished to meet with him because the draft ad campaign was inappropriately "implying that mothers who use infant formula are placing their babies at risk," and could give rise to class-action lawsuits.

Yeutter acknowledged that the ad agency "may well be correct" in asserting that a softer approach would garner less attention, but he said many women cannot breast-feed or choose not to for legitimate reasons, which may give them "guilty feelings." He asked, "Does the U.S. government really want to engage in an ad campaign that will magnify that guilt?" . . .

The formula companies also approached Carden Johnston, then president of the American Academy of Pediatrics. Afterward, Johnston wrote a letter to Thompson advising him that "we have some concerns about this negative approach and how it will be received by the general public."

The letter made a strong impression at HHS, former and current officials said. But it angered many of the medical group's members and the head of its section on breast-feeding, Lawrence M. Gartner, a Chicago physician. Gartner told Thompson in a letter that the 800 members of the breast-feeding section did not share Johnston's concerns and had not known of his letter.


Drink with the Kids?

In yesterday's W$J, psychologist Stanton Peele makes the case for allowing minors to drink alcohol with their parents. According to Peele, allowing children to drink alcohol in the home with their families reduces the likelihood of binge drinking and related problems. On the other hand, allowing minors to attend unchaperoned parties may be setting them up to be binge drinkers.

n societies where children drink with their parents, this typically means giving a kid a small amount of wine or other alcohol, often watered down on special occasions or a family dinner. Many European countries also lower the drinking age for children when they are accompanied by parents. In the United Kingdom, for example, the legal age is 18, but for a family at a restaurant it is 16. In France and Italy, where the legal age is 16, there is no age limit for children drinking with parents.

But what might all of this mean for teen drinking problems in America?

Several studies have shown that the younger kids are when they start to drink, the more likely they are to develop severe drinking problems. But the kind of drinking these studies mean -- drinking in the woods to get bombed or at unattended homes -- is particularly high risk.

Research published in the Journal of Adolescent Health in 2004 found that adolescents whose parents permitted them to attend unchaperoned parties where drinking occurred had twice the average binge-drinking rate. But the study also had another, more arresting conclusion: Children whose parents introduced drinking to the children at home were one-third as likely to binge.

"It appears that parents who model responsible drinking behaviors have the potential to teach their children the same," noted Kristie Foley, the principal author of the study. While the phrasing was cautious, the implication of the study's finding needs to be highlighted: Parents who do not introduce children to alcohol in a home setting might be setting them up to become binge drinkers later on. You will not likely hear this at your school's parent drug- and alcohol-awareness nights.


Friday, August 31, 2007

Iran, Iraq, Israel:

I've pointed out several times on this blog that contrary to those who argue that Israel somehow pushed the U.S. into war with Iraq, Israeli leaders actually thought Iraq was a distraction from the much greater threat of Iran. Here's a piece on the same theme:

Israeli officials warned the George W. Bush administration that an invasion of Iraq would be destabilizing to the region and urged the United States to instead target Iran as the primary enemy, according to former administration official Lawrence Wilkerson.

Wilkerson, then a member of the State Department's Policy Planning Staff and later chief of staff for Secretary of State Colin Powell, recalled in an interview with IPS that the Israelis reacted immediately to indications that the Bush administration was thinking of war against Iraq. After the Israeli government picked up the first signs of that intention, Wilkerson says, "The Israelis were telling us Iraq is not the enemy – Iran is the enemy."

Wilkerson describes the Israeli message to the Bush administration in early 2002 as being, "If you are going to destabilize the balance of power, do it against the main enemy."

The warning against an invasion of Iraq was "pervasive" in Israeli communications with the administration, Wilkerson recalls. It was conveyed to the administration by a wide range of Israeli sources, including political figures, intelligence, and private citizens.

It's true, as the article suggests, that American neoconservatives prepared a policy paper for Binyamin Netanyahu arguing "for a more aggressive joint U.S.-Israeli strategy aimed at a 'rollback' of all of Israel's enemies in the region, including Iran, but beginning by taking down Hussein and putting a pro-Israeli regime [update: sic, no one was naive enough to think that, they were hoping for a regime at least willing to live and let live, and perhaps sign a peace treaty] in power there." But this has been consistently misrepresented as reflecting the Likud's position, as expressed by its American allies. Quite the opposite; this was the American neoconservatives' position, and they were trying to get their friends in Israel to go along with them. Israel's view on such things does have some influence in Washington, and the neoconservatives were unsuccessfully looking for allies for their crusade to spread American power and democracy (in that order).

Why unsuccessfully? With the partial exception of Natan Sharansky, who has been for some time a rather marginal figure in Israeli politics, no important Israelis have ever even come close to endorsing the neoconservatives longstanding goal of spreading American influence through the use of force to establish pro-American democratic regimes. If anything, Israeli policy has consistently erred on the other side, preferring to deal with dictators like Arafat and Sadat and King Hussein who can impose peace without worrying about public opinion, rather in trying to encourage democracy and having to make peace with democratic regimes. While neoconservative foreign policy may be too idealistic, Israeli foreign policy, Likud, Labor, Kadima, or otherwise, is if anything too cynical.

Short and sweet, the Likud is not neoconservative, and neoconservative foreign policy, while pro-Israel and hawkish, is otherwise not much like Likud's. "Experts" who fail to recognize this very basic fact simply don't know what they are talking about.

That still leaves the possible argument that even if the neocons weren't acting in concert with Israel, they still believed that they were acting on behalf of Israel, as opposed to U.S. interests. But since the neoncons have supported just about every proposed or actual use of U.S. military force for the last 35 years, and their underlying ideology presupposes the aggressive use of military force by the U.S. to spread democracy, to attribute neocon support for toppling Saddam primarily to concern for Israel makes one wonder why the necons bothered opposing the Panama Canal Treaty, supporting aid to the Contras, opposing nuclear arms negotiations with the Soviet Union, supporting U.S. intervention in Yugoslavia, and so forth and so on. Just a thirty-year smokescreen so they could get George Bush to intervene on behalf of Israel when the moment presented itself? Not likely.


Predict Justice Kennedy's Vote, using this simple guide from Ian Ayres. I hear it's 100% accurate some of the time.

Giving away the (Iowa) farm:

There aren't any new legal arguments in the Iowa trial court decision of yesterday declaring the state's exclusion of gay couples from marriage unconstitutional.

What's unusual in the legal analysis (pp. 43-61), at least if you compare it to the various state supreme court decisions so far on the issue, is the conclusions reached. The court concludes there is a due-process-based fundamental right to marry that includes same-sex marriage. This is contrary to all of the state high court decisions on the issue, including the ones ruling for gay marriage or civil unions. Against that tide, the court offers almost no analysis beyond asserting (without citation) that strict scrutiny is warranted because the state marriage statute is "an absolute prohibition on the ability of gay and lesbian individuals to marry a person of their choosing." (p. 45) The same could be said of consanguinity or numerosity limitations, or any of the other requirements that frustrate the choice of marriage partner. There's actually some loose language in one Supreme Court decision supporting the view that complete barriers to marriage should be viewed more skeptically than minimal barriers, like the need to pay a nominal license fee, but that language comes in the context of an opposite-sex marriage case and the trial court doesn't cite it. There are respectable arguments for the fundamental-right position, but the Iowa court doesn't make them. I doubt this rationale will be accepted by higher courts in the state.

The equal protection argument — based on sex discrimination — breaks no new ground either. It, too, is contrary to the vast majority of decisions (even pro-gay-marriage decisions). On substance, the trial court doesn't get us beyond the familiar arguments about Loving. While the sex-discrimination argument has a certain logic-chopping appeal, it doesn't capture the Supreme Court's underlying concern in Loving about how the racial classification there sustained a system of race supremacy in a way that would tie traditional marriage to a similar concern about gender supremacy. I also doubt this rationale will be accepted by the higher state courts.

Perhaps recognizing these weaknesses, the trial court devotes most of its attention to a Goodridge-style argument that excluding gay couples from marriage isn't even rational. No new ground here, either. If the same-sex couples win in the higher state courts — a very big "if" — it will probably be on this argument.

The most interesting thing in the decision isn't even the legal analysis section. Procedurally, the decision is a ruling on cross-motions for summary judgment. The agreed or uncontested facts are critical. The county's attorneys made extensive and serious concessions or failed to adequately dispute many of the plaintiffs' asserted facts about marriage, sexual orientation, and especially gay parenting (see especially pp. 21-43).

The "undisputed" facts read like a gay-marriage advocate's dream brief. I don't want to go through them all, but suffice it to say that many of the "undisputed" facts — like the methodological validity of studies showing that gay parents are just as good as straight parents — have been hotly disputed in gay-marriage litigation. Indeed, the existence of disputes about parenting in particular have been used by some courts to argue that on rational basis review the state legislature is entitled to make its own conclusions about maintaining traditional marriage.

If these facts are treated as undisputed by the higher courts in Iowa (and I assume the state will try to challenge the conclusion that they're really undisputed), the plaintiffs' chances of winning on rational-basis review will go up. The Iowa marriage litigation might then turn out to be more interesting than I thought, though I still expect the plaintiffs to lose on appeal. I doubt gay marriage is going to come to Iowa by default. One way out for a higher state court might be simply to reverse the decision on the grounds that the trial court misapplied the summary judgment standard in ruling for the plaintiff about the undisputed facts or its exclusion of the county's expert witnesses. This would return the issue to the trial court and allow the higher state courts to avoid the substance of the marriage issue — for now.

Meanwhile, after one gay couple obtained a marriage license, the trial judge stayed his decision. There will be no summer of love in Iowa.

Related Posts (on one page):

  1. Giving away the (Iowa) farm:
  2. Iowa state trial court judge rules for gay marriage:

Cannonball Adderley Sextet Plays "Jive Samba": Friday afternoon before a long weekend is a good time for some swinging bossa nova, don't you think? The Cannonball Adderley Sextet of the early 1960s was one of the most swinging jazz groups around, and YouTube has a particularly fun clip of the Sextet playing "Jiva Samba" in 1962. The clip starts with brief interview in which Adderly pokes fun at Dave Brubeck's then-raging commercial success (watch his smile) before introducing the members of the band: Yusef Lateef on tenor and flute, Adderly's brother Nat on trumpet, Joseph Zawinul on piano, Sam Jones on bass, and Louis Hayes on drums.
If you enjoyed that, check out the group playing Work Song, too.

Another "State Secrets" Case:

Today's NYT reports that the Justice Department will claim the "state secrets" privilege requires the dismissal of a private lawsuit against the "Swift" banking consortium for providing the U.S. government with access to financial transaction records.

The Bush administration is signaling that it plans to turn again to a legal tool, the “state secrets” privilege, to try to stop a suit against a Belgian banking cooperative that secretly supplied millions of private financial records to the United States government, court documents show.

The suit against the consortium, known as Swift, threatens to disrupt the operations of a vital national security program and to disclose “highly classified information” if it continues, the Justice Department has said in court filings.

A hearing on the suit is scheduled for Friday in federal court in Alexandria, Va. . . .

If the administration makes good on its intention to invoke the privilege in the Swift suit, it would be one of the most significant tests of the privilege.

Swift is considered the nerve center of the global banking industry, routing trillions of dollars each day among banks, brokerage houses and other financial institutions. Its partnership with Washington, reported in The New York Times in June 2006, gave Central Intelligence Agency and Treasury Department officials access to millions of records on international banking transactions.

The access was part of an effort to trace money that investigators believed might be linked to financing of terrorism.


Is Nothing Sacred?:

There's a long and honored tradition of New York City employees with non-office jobs working only part of the day. My family's alarm system, for example, was put in during "working hours" over a several day period by a city employee, who always seemed to be able to arrive by 1 pm. A close relative who worked as a city health inspector started work at 9 and was usually home for lunch.

After all, why would an employee accept government wages if he actually had to work a full day? Because of the extraordinary pensions NYC retirees receive? Please! If he wanted to work hard, he would have become an investment banker! I'm outraged that New York City is now actually trying to keep track of its workers during working hours. The dreams of thousands of New York City youths, who strive for the elusive "City job," are being shattered.

UPDATE: Next thing you know, deans are going to start harassing tenured law professors who haven't written anything in years!


Shouldn't Donations to the American Cancer Society

be used specifically to combat cancer, and not on general health care issues, like access to health care? That's certainly what I'd expect as a donor, but apparently the leadership of the society disagrees.


Thursday, August 30, 2007

Iowa state trial court judge rules for gay marriage:

I haven't seen the actual decision yet, but a Chicago Tribune story suggests that the judge was persuaded that limiting marriage to opposite-sex couples is a form of sex discrimination. That's been a common and usually unsuccessful argument in gay-marriage cases.

There's apparently an immediate route available to the state supreme court, which could handle the case itself or decide to let the intermediate state appellate court consider it first. While the same-sex couples involved are celebrating, my guess is that the decision will be stayed pending appeal. Iowa does not have a state constitutional amendment banning gay marriage, but this is sure to fire up support for one.

If the decision seems to break any new ground, I'll have more to say about it.

UPDATE: If you're having trouble accessing the Tribune story, here's one from the Sioux City Journal.

FURTHER UPDATE: The decision is available here. Thanks to Steve Sanders, who filed an amicus brief in the case, for making the text available.

Related Posts (on one page):

  1. Giving away the (Iowa) farm:
  2. Iowa state trial court judge rules for gay marriage:

Chinese History Bleg:

What role, if any, did Confucian scholars play in the overthrow of the Han Dynasty in China in 220 a.d.? If possible, please include a citation with your answer. Thanks!


New Orleans Two Years After Katrina: This Douglas Brinkley essay is a few days old but still a very important read. Here's a taste:
  Over the past two years since Hurricane Katrina, I've seen waves of hardworking volunteers from nonprofits, faith-based groups and college campuses descend on New Orleans, full of compassion and hope.
  They arrive in the city's Ninth Ward to painstakingly gut houses one by one. Their jaws drop as they wander around afflicted zones, gazing at the towering mounds of debris and uprooted infrastructure.
  After weeks of grueling labor, they realize that they are running in place, toiling in a surreal vacuum.
  Two full years after the hurricane, the Big Easy is barely limping along, unable to make truly meaningful reconstruction progress. The most important issues concerning the city's long-term survival are still up in the air.
Thanks to Hilzoy for the link.

Debating the New FISA Legislation: I mentioned it once before, but I thought I would flag once again the interesting discussion about the new FISA legislation with David Kris, Patrick Keefe, Marty Lederman, and myself over at Slate.

Among the More Amusing Experiences I've Had Recently:

Watching a song in a Russian-language children's cartoon that was set to the tune of "Mack the Knife." (The cartoon was from the Soviet era, when Western copyrights — and perhaps all copyrights — weren't recognized, either de jure or de facto.)

UPDATE: Thanks to commenter Burt Likko for a pointer to the cartoon itself.


Professor Michael McCann in Sports Illustrated:

Professor Michael McCann of Mississippi College School of Law has just been signed to be the resident "Sports and the Law" columnist for Sports Illustrated. His first column, on Michael Vick, is here.

Mike, as readers may already be aware, is one of the gurus behind the Sports Law Blog.

Sports Illustrated has not indicated whether it will have to hire a second legal analyst just to keep up with the legal issues of the Cincinnati Bengals (ok, I had to work a little pro-Steelers jingoism in here somewhere).

Congratulations to Mike for this high-profile writing gig and be sure to bookmark his column.


Is Latin a Dead Language?

In this opinion released today, Judge Boyce Martin of the U.S. Court of Appeals for the Sixth Circuit declares that Latin is a "dead language" (in footnote 5). Judge Alice Batchelder begs to differ. Her opinion concurring in the judgment reads:

I concur in Judge Martin’s opinion. I write separately only to express my suspicion that, like the reports of Mark Twain’s death, see The New Dictionary of Cultural Literacy (Third Edition, 2002), the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.


Fidel Castro Endorses Clinton-Obama Ticket.--

Reuters is reporting that Cuba's ailing Fidel Castro has suggested a Clinton-Obama ticket for the US general election:

HAVANA (Reuters) - Ailing Cuban leader Fidel Castro is tipping Democratic candidates Hillary Clinton and Barack Obama to team up and win the U.S. presidential election.

Clinton leads Obama in the race to be the Democratic nominee for the November 2008 election, and Castro said they would make a winning combination.

"The word today is that an apparently unbeatable ticket could be Hillary for president and Obama as her running mate," he wrote in an editorial column on U.S. presidents published on Tuesday by Cuba's Communist Party newspaper, Granma.

At 81, Castro has outlasted nine U.S. presidents since his 1959 revolution turned Cuba into a thorn in Washington's side by building a communist society about 90 miles offshore from the United States.

He said all U.S. presidential candidates seeking the "coveted" electoral college votes of Florida have had to demand a democratic government in Cuba to win the backing of the powerful Cuban exile community.

Clinton and Obama, both senators, called for democratic change in Cuba last week. . . .

Castro said former President Bill Clinton was "really kind" when he bumped into him and the two men shook hands at a U.N. summit meeting in 2000. He also praised Clinton for sending elite police to "rescue" shipwrecked Cuban boy Elian Gonzalez from the home of his Miami relatives in 2000 to end an international custody battle.

But even Clinton was forced to bow to Miami politics and tighten the U.S. embargo against Cuba in 1996, using as a "pretext" the shooting down of two small planes used by exile groups to overfly Havana, Castro wrote.

He said his favorite U.S. president since 1959 was Jimmy Carter, another Democrat, because he was not an "accomplice" to efforts to violently overthrow the Cuban government.

Initially, I thought that a Clinton-Obama ticket was both strong and possible, but the recent nastiness between these their camps leads me to think that a Clinton-Richardson or Obama-Edwards ticket is more likely. My guess (and I'm a bad prognosticator) is that Clinton will win the presidency and that a Clinton-Richardson ticket would be a strong one.

On the Republican side, I think a Guliani/Rice ticket might do fairly well. However (as Steve Calabresi and I wrote in the Yale Law Journal), eventually the party in office loses power--and losses in the 6th year of a presidency usually presage a switch in party in the next election.

BTW, I have not turned on comments--which are usually insightful--because I don't have time today to police the occasional (though unfortunately predictable) nonsensical comments EITHER (1) that Castro's support should be used against Clinton and Obama OR (2) that my pointing to this interesting Reuters story indicates that I am somehow arguing that Obama (whom I have supported and voted for several times) or Clinton are unsuitable for the presidency because they received support (which they did not seek and would reject) from an ailing totalitarian leader.

Baseball Yarmulkes:

Like David, I take no position on whether religious Jews should put political slogans or sports team names on yarmulkes or even whether they should wear yarmulkes at all. However, for Jewish baseball fans who do decide to wear yarmulkes with a team name on them, here are some compelling reasons to choose the Boston Red Sox yarmulke, or at least avoid the New York Yankees version:).

Related Posts (on one page):

  1. Baseball Yarmulkes:
  2. The Obama-kah:

Digital Camera Bleg:

I recently bought a digital camera, and used it to take numerous photos on a trip abroad. To my considerable annoyance, after I returned I learned that digital photos are formatted to be 4.5x6 inches rather than the standard 4x6. As far as I can tell, after calling up several photo shops, my only two options are either to 1) have the pictures cropped to 4x6 (which might eliminate important material, or 2) pay a fairly high price ($0.39/photo, even for a Ritz member like me) to have Ritz Camera develop them in 4.5x6 (the other shops I called don't develop in 4.5x6 at all). I realize that I could manually crop the photos on my computer. But that's not a realistic alternative because there are too many of them and I'm not good at cropping. I bet that many VC readers probably know more than I do about digital cameras (not a high bar to clear, to be sure). So here's my question. Is there any way I can do one of the following:

1. Have the pictures resized to 4x6 WITHOUT cropping of either the automatic or manual variety - and at a reasonable price.

2. Have them printed at 4.5x6 at a price significantly lower than Ritz's (20-25 cents/photo or less would be acceptable).

I suspect that I'm not the only person who has encountered this problem with digital photos. So I'm hoping that someone more savvy about digital cameras than I am has come up with a good solution.

Please don't waste your time writing comments proving that I should have investigated this issue before buying the camera. I already know I made a mistake on that point. But it simply did not occur to me that the designers of digital cameras (an otherwise extremely impressive technology, in my humble opinion) would commit so fundamental an error as to make it seemingly impossible to convert photos to the standard 4x6 size without cropping. Live and learn.

Thanks in advance to all who respond!

Related Posts (on one page):

  1. Digital Photo Resizing Bleg - Part II:
  2. Digital Camera Bleg:

Wednesday, August 29, 2007

The Obama-kah:

Not my cup of tea, but any Jewish Obama supporters who want to be styling at High Holiday services this year can order "Obama-kahs" (Obama yarmulkes) here.

Update: Is it wrong to declare political allegiances on a yarmulke? I'm not sure, but given that it's easy enough to find, for example, Mets yarmulkes, a Simpsons yarmulke, and even a Grateful Dead yarmulke, I wouldn't judge wearers of the Obama-kah.

Related Posts (on one page):

  1. Baseball Yarmulkes:
  2. The Obama-kah:

Tarot Deck To Use (Together with an Ordinary Deck) for Calling Randomly on Students:

A reader asked me which deck I finally decided on.

Unfortunately, I couldn't find any that had a legal motif or a crime motif; but I did come across an Oz deck — the land, not the HBO show — that looked cute and that reminded me of reading the books when I was a child. (I read the books in Russian, so much of what I read may have been the purely Russian sequels; I can't remember for certain.) So that's what I decided to use: I passed around a normal card deck and the Oz deck, and students picked any card to sign; now, to choose a student to call on, I just pick a card at random.

Thanks to all who offered suggestions for possible decks — and if any of you can find a good source for Mexican Loteria cards (whether online or in some store in L.A.), please let me know, since those also struck me as potentially fun for future classes.

Related Posts (on one page):

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  2. Looking for Cute Tarot Deck To Use for Calling Randomly on Students:

Interesting Empirical Study of Federal Habeas Proceedings: Habeas Litigation in the U.S. District Courts, by Nancy King, Fred Cheesman, Brian Ostrom. The full report is here, as a 127- page .pdf file. Some representative findings:
Capital cases were filed an average of 7.4 years following state judgment.
• Non-capital cases averaged 6.3 years before filing, longer than the average 5 years before AEDPA.
• Of capital cases, 4% were dismissed as time-barred under AEDPA's statute of limitations, compared to 22% of non-capital cases.
• Non-capital cases have averaged 11.5 months in federal court, capital cases have averaged 3.1 years so far (1 in 4 capital cases was still pending in late November 2006).
• Of 1986 non-capital cases completed other than by transfer to another district, only 7 received relief. Courts granted the writ in 33 of the 267 completed capital cases.
• The location of the case had a significant relationship to both processing time and likelihood of relief, after controlling for case-level factors.
Thanks to Legal Theory Blog for the link to the summary, and to Paul Weisser for the link to the full report.

  UPDATE: I have added the link to the full report.

Interesting Rumors About Replacing Gonzales from NBC's Kelly O'Donnell: Chertoff may no longer be in the running. Lots of names are in the mix now, with and "Paul Clement, George Terwilliger and Larry Silberman are among those being considered." I have no idea if these rumors are true or total baloney, but I would prefer Clement among that group. But I still think Chertoff would be better than any of those three. I think they should also talk to David Levi, currently the Dean of Duke Law School and a former District Judge (and the son of former AG Edward Levi). Thanks to Simon Dodd for the link.

The elephant in the room:

Whenever one of these morality scandals comes up – whether it involves homosexuality, adultery, or being on a list compiled by someone the media calls a “Madam” – it often involves a Republican. Critics love to charge Republicans with hypocrisy – preaching traditional family values to the rest of us by day while trolling bathrooms and pressing sweaty palms to computer keyboards by night.

Whatever explains these other public moral dramas, hypocrisy doesn’t fully capture the GOP’s plainly dysfunctional relationship to homosexuality. Believe it or not, there are plenty of traditional-values Republicans who are not secretly gay. They might be wrong about homosexuality, but they’re not hypocrites.

Yes, there are many prominent Republicans whose private actions are inconsistent with their traditional-values personas. Sen. Larry “I am Not a Gay American” Craig is the latest of them, assuming the various allegations against him are true. Jim West had an aggressively anti-gay record both as a Washington state legislator and as mayor of Spokane, yet cruised for gay sex and anonymously told an online acquaintance that he hated the “sex Nazis” who try to regulate people’s private lives. There are many other examples.

But there are also many closeted gay Republicans not closely associated with the party’s religious right. Mark Foley, of last year's congressional page scandal, was not an anti-gay member of Congress. While he didn’t support everything I wish he had, his rating from national gay-rights groups was usually quite good and I’d take his record on gay issues over many Democrats’.

There’s an entire website devoted to outing (mostly) Republican politicos. That site does not hurt for news and information. Its working list of closeted gay Republicans — whether officeholders, staffers, or party officials — is a very, very long one. I can tell you the website does not even come close to listing all of the gay Republicans working in prominent positions in Washington and elsewhere.

And not nearly all of these gay Republicans are anti-gay, or work directly for anti-gay causes. Many despise the party’s anti-gay rhetoric and actions. They are Republicans because they are pro-life, or support low taxes, or want a strong national defense, or desire an exciting job in public policy, or for any of a hundred other reasons. You could call it hypocrisy to be gay and work for a generally anti-gay political party, regardless of the gay person's own views or what she does within the party to oppose its anti-gay policy positions, but if so, this is surely a watered-down form of the vice.

What unites these cases is not really hypocrisy. It’s two other things. First, nearly all the gay Republicans working in Washington or elsewhere are to one degree or another closeted. Second, at a personal level, very few Republican officials around them care whether someone is gay.

From the top of the party to the bottom, few Republicans personally and viscerally dislike gay people. President Bush has had friends he knew were gay. So has Vice President Cheney. Even the most prominently and vigorously anti-gay Republican, Sen. Rick “Man on Dog” Santorum, had a gay spokesperson whom he defended when his homosexuality became known.

The big, open secret in Republican politics is that everyone knows someone gay these days and very few people – excepting some committed anti-gay activists – really care. It’s one of the things that drives religious conservatives crazy because it makes the party look like it’s not really committed to traditional sexual morality.

So to keep religious conservatives happy the party has done two things. First, it has steadfastly resisted efforts to ease anti-gay discrimination in public policy, even when Republican politicians know better. I can’t tell you how many Republican staffers told me, for example, that their bosses privately opposed the Federal Marriage Amendment but would be voting for it anyway.

Second, to keep the talent it needs and simply to be as humane and decent as politically possible toward particular individuals, the party has come up with its own unwritten common-law code: you can be gay and work here, we don’t care, but don’t talk about it openly and don’t do anything to make it known publicly in the sense that either the media or the party’s religious base might learn of it. It's the GOP's own internal version of "Don't Ask, Don't Tell."

This uneasy mix of the public and the private is not exactly what I’d call hypocrisy. It’s perhaps better described as a form of ideological schizophrenia: private acceptance welded to public rejection. It’s a very unstable alloy.

For the closeted gay Republican, this alloy means a life of desperation and fear and loneliness, of expressing one's true feelings only in the anonymity of the Internet, of furtive bathroom encounters, of late nights darting in and out of dark bars, hoping not to be seen. It means life without a long-term partner, without real love.

Worst of all, it may mean a life of deceiving a spouse and children. It’s hardly surprising that most of the men caught cruising in parks, bathrooms, and other public places are deeply closeted and often married. They don’t see themselves as having many other options.

Nevertheless, it seems to work until the day you get caught tapping your toe next to a cop. Desperation sets in and you say things that bring everyone much mirth at your expense, like, “I’m not gay, I just have a wide stance.”

For the GOP, this alloy of public rejection and private acceptance means enduring more of these periodic public morality convulsions. How to end it? The private acceptance will continue and, I predict, become even more prevalent as young conservatives comfortable around gay people take over. There will be no purging the party of gays. There is no practical way to purge them, and even if there were, most Republicans would be personally repulsed by such an effort.

These closeted politicians, staffers, and party functionaries will occasionally be found out one way or another and again will come the shock, the pledges to go into rehab, the investigations, the charges of hypocrisy, the schadenfreude from Democrats and libertines, the sense of betrayal from the party’s religious conservatives.

This doesn’t happen to the Democrats because the party’s public and private attitudes toward homosexuality are fully consistent: acceptance of gays. Their homosexuals feel little need to remain closeted (with the recent exception of Jim “I am a Gay American” McGreevey). Notably, past sex scandals involving gay Democrats, like Rep. Barney Frank (with a prostitute) and Rep. Gerry Studds (with a congressional page), occurred some two decades ago, when the party was less accepting and the men themselves were still closeted.

The only practical way out of this for the GOP is to come to the point where its homosexuals no longer feel the need to hide. And that won’t happen until the party’s public philosophy is more closely aligned with its private one. That will be the day when the GOP greets its gay supporters the way Larry Craig, with unintended irony, greeted reporters yesterday at his news conference: “Thank you all very much for coming out today.”

UPDATE: I've re-opened comments after briefly closing them to let a few commenters cool off a bit. Please try to avoid rudeness and stay on the topic of the post. If someone responds poorly or stupidly to something brilliant you say, quietly declare victory and go home rather than repeating yourself or cleverly insulting them. I'll close comments permanently if things veer off again.


The Alberto Gonzales Top 10: Josh Marshall has a video of the top 10 most memorable statements Alberto Gonzales made over the course of his tenure as Attorney General. I think the most jaw-dropping are #3 (questioning by Senator Schumer) and #5 (questioning by Senator Specter). Memo to future AGs: Don't let this happen to you.

Tuesday, August 28, 2007

What was Craig's crime?

There is a long list of public figures whose personal motto seems to be: "Hate the sinner, love the sin."

It's hard to work up much sympathy for Sen. Larry Craig (R-Idaho). He had a perfect legislative score from traditional-values groups, a zero rating from gay civil-rights groups, supported the Federal Marriage Amendment, and refused even to commit to non-discrimination on the basis of sexual orientation in hiring for his own Senate staff. But what exactly was criminal about his conduct in that Minneapolis airport bathroom?

From the arrest report, here's what Craig allegedly did: (1) put a duffel bag at the front of his stall; (2) peered through a crack into an adjoining stall; (3) tapped his foot; (4) moved his shoe over until it touched an officer's; and (5) ran his fingers along the underside of the stall divider. That's it.

Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer's version of events is correct. But assuming for the sake of argument that Craig did everything the officer alleged, how was it the basis for a criminal charge that could get him a $1,000 fine and/or ten days in jail?

Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others. The "disorderly conduct" statute to which Craig pleaded guilty provides that one who knowingly “[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is guilty of the misdemeanor of disorderly conduct. Minn. Stat. § 609.72, subd. 1(3) (2004).

More specific criminal charges were not advanced. A charge of interference with privacy was dismissed. Craig was not charged with any other crime, like public lewdness, indecent exposure, public sexual conduct, solicitation of prostitution, harassment, resisting arrest, or assault.

People should not have to tolerate actual sexual conduct in public places, but that's not what happened here. Craig's conduct was not obscene, abusive, boisterous, or noisy. The officer might have considered Craig's actions "offensive . . . conduct . . . tending reasonably to arouse alarm, anger, or resentment in others." But if that's so, it seems a pretty thin basis for charging him. A reasonable person faced with Craig's alleged behavior would have moved his foot away and/or muttered a simple "no thanks" or "stop that," which likely would have brought an end to it. A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn't happen. In fact, the officer tapped his own foot in response, indicating the interest was mutual.

At most, Craig was implicitly inviting another adult to engage in some kind of sexual behavior in a public place. I'm not a Minnesota criminal lawyer, but I don't think asking a stranger for sex in a public place, while vulgar and rude under many circumstances, would by itself be a crime under state law. At any rate, Craig wasn't charged with that.

What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to "disorderly conduct" in a futile effort to save his reputation and his job. Whatever we think of Craig's views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it's difficult to see how he's a criminal.

UPDATE: Professor Ted Sampsell-Jones (William Mitchell), who has far more knowledge than I of Minnesota criminal law, writes:

Minn. Stat. 617.23, the indecent exposure statute, covers lewd or lascivious conduct in a public place. Sex and masturbation count as lewd and lascivious acts. There is, however, some Minnesota case law suggesting that public restrooms aren't "public places" once you close the door to your stall. State v. Bryant, 177 N.W.2d 800, 803-04 (Minn. 1970).

Even if the completed act would be a crime, it's doubtful that merely asking for sex in the restroom would be a crime.

Minnesota, unlike some jurisdictions, does not have a general solicitation statute. Mere solicitation of a crime is not a crime. State v. Lowrie, 54 N.W.2d 265, 266 (Minn. 1952); State v. Johnson, 2005 Minn. App. Unpub. LEXIS 352 at *9. Minnesota does of course have an attempt statute, 609.17, but that requires a substantial step toward completion of the crime, plus the specific intent to commit the crime. I think it's possible but doubtful that Craig's acts would count as a substantial step, and it's also possible but doubtful that you could infer such a specific intent. Or rather — there's some inference there, but it's not strong enough to support guilt beyond a reasonable doubt.

Slate Discussion on Foreign Intelligence Surveillance: Slate is hosting a discussion over the next few days on foreign intelligence surveillance: what we know, what we don't, and what we think is happening. The participants are Patrick Keefe, David Kris, Marty Lederman, and myself. Patrick's initial post is here, and a bunch more are on the way.

Thoughtful Commentary on Senator Craig: TalkingPointsMemo has it in this post by Josh Marshall and this post by David Kurtz.

Related Posts (on one page):

  1. The elephant in the room:
  2. What was Craig's crime?
  3. Thoughtful Commentary on Senator Craig:

The Acting AG:

The Washington Post profiles Solicitor General Paul Clement.


Monday, August 27, 2007

Senator Craig Arrested, Pleads Guilty in Airport Restroom Incident: I don't really know how to blog a story like this, but the Roll Call story is here, the arrest report is here, and the docket sheet for State v. Craig is here. Craig's statement released today: "At the time of this incident, I complained to the police that they were misconstruing my actions. I should have had the advice of counsel in resolving this matter. In hindsight, I should not have pled guilty. I was trying to handle this matter myself quickly and expeditiously."

  Notably, though, the court hearing was about two months after the arrest. If I read the docket sheet correctly, the arrest occurred on June 11 and the plea hearing was August 8. Two months seems like more than enough time to consult with an attorney, even for someone hoping to resolve such a matter quickly and expeditiously. (Note that the statement doesn't necessarily reject the possibility that Craig spoke with an attorney about the case before he pled guilty; "advice of counsel in resolving this matter" may be different from "advice of counsel about the matter before resolving it.")

  UPDATE: I kept comments open for a bit, but decided to close them.

More on Whether Affirmative Action in Law Schools Backfires on Prospective Black Lawyers:

Gail Heriot has an excellent op-ed on the subject in the Wall Street Journal. As I've emphasized in previous writings and speeches, it's a real problem when the consistent focus of affirmative action in law schools is on how many black students are admitted, with little if any attention paid to how many of the admittees actually succeed in becoming lawyers.

Interestingly, the ABA, which just last year was on the offensive in passing new guidelines requiring all law schools to engage in significant racial preferences, has now proposed new accreditation rules that threaten the viability of many lower-tier law schools, including several historically black law schools. The ABA is acting under pressure from the Department of Education, which has grown weary of the ABA mandating all sorts of requirements for law school, but ignoring what would seem to be the most significant mandate: that the schools actually succeed in preparing their students for careers in law, not least by ensuring that they actually pass the bar.

Isn't it time the ABA just gave up, and acknowledged that as a body completely captured by the perceived interests of the profession it's supposed to be regulating, is in no position to serve as a neutral gatekeeper for law school accreditation?

Meanwhile, my antenna have picked up some subtle new signals from the ABA bureaucracy, that it is less interested in enforcing universal norms on schools that find its preference policies counter-productive, and more interested in finding ways to get all sides together to cooperate in increasing transparency and improving the prospects of minority law students. Unfortunately, I doubt this shift would last if the Department of Education lays off, as it will almost certainly do if a Democrat wins in '08.

UPDATE: The ABA's new proposed rules have apparently been "withdrawn for further study" until February 2008. Thanks to Lee Otis for the pointer.

Also, The Chronicle of Higher Education reports that

The U.S. Commission on Civil Rights plans to issue a report today calling for federal and state officials to require law schools to disclose detailed information about their use of affirmative action in admissions and the short- and long-term success of the minority students they enroll.

The report also urges the section of the American Bar Association that accredits law schools to drop a requirement that law schools seeking accreditation demonstrate a commitment to diversity, with a majority of the commission's members arguing that such a requirement infringes on the schools' academic freedom. Among its other recommendations, the report calls for the National Academy of Sciences or some other entity to finance research on the effect of law schools' affirmative-action policies, and it urges state bar associations to cooperate with such studies.


The Lorax and the Tragedy of the Commons:

After teaching the tragedy of the commons in my Property class today, I remembered - too late - this excellent 2005 post by co-conspirator Jonathan Adler, which reintreprets Dr. Seuss' classic childrens' book, The Lorax, as a tragedy of the commons story. Although The Lorax is often seen as a tale of capitalist greed run amok, it could just as easily be interpreted as exhibiting the inherent flaws of common property resources, flaws that can sometimes be alleviated through privatization:

Viewing the tale of the Lorax through an institutional lens, ruin is not the result of corporate greed, but a lack of institutions. The truffula trees grow in an unowned commons. (The Lorax may speak for the trees, but he does not own them.) The Once-ler has no incentive to conserve the truffula trees for, as he notes to himself, if he doesn't cut them down someone else will. He's responding to the incentives created by a lack of property rights in the trees, and the inevitable tragedy results. Had the Once-ler owned the trees, his incentives would have been quite different — and he would likely have acted accordingly — even if he remained dismissive of the Lorax's environmental concerns.

The story ends with the Once-ler giving a young boy the last truffula seed. He tells him to plant it and treat it with care, and then maybe the Lorax will come back from there. The traditional interpretation is simply that we must all care more for the environment. If we only control corporate greed we can prevent environmental ruin. But perhaps it means something else. Perhaps the lesson is that this boy should plant his truffula trees, and act as their steward. Perhaps giving the boy the last seed is an act of transferring the truffula from the open-access commons to private stewardship. Indeed, the final image — the ring of stones labeled with the word "unless" — could well suggest that enclosure, and the creation of property rights to protect natural resources, is necessary for the Lorax to ever return.

As Jonathan points out, there is no reason to believe that this was Dr. Seuss' own interpretation of The Lorax. It nonetheless does fit the facts of the story, and is a great way of explaining the logic of the tragedy of the commons to students - not only to law students, but also to children.


The Rise and Fall of Classical Legal Thought:

Duncan Kennedy's extremely influential manuscript, circulated via photocopies for three decades, is now available as a paperback book, with a preface by the author. It should interest some law professors that Kennedy writes that he researched the manuscript between September 1973 and September 1975, and submitted it as the principal element in his tenure file. Two years of work, for a lifetime gig at Harvard Law School--not bad work if you can get it!


Very Funny 2006 Commercial for the L.A. County Fair:

Click on the picture below to see the video:

More here.


Writer, Huffington Post Contributor, and Former BBC Commentator Calls for a Military Coup:

This is Martin Lewis, who writes,

General Pace -- you have the power to fulfill your responsibility to protect the troops under your command. Indeed you have an obligation to do so.

You can relieve the President of his command.

Not of his Presidency. But of his military role as Commander-In-Chief....

In addition to relieving him of his command as Commander-In-Chief, you also have authority to place the President under MILITARY arrest.

Read the whole post for more details, and for Mr. Lewis's statement, "To be crystal clear -- I am NOT advocating or inciting you to undertake any illegal act, insurrection, mutiny, putsch or military coup." So you're urging a general to arrest the President, and at least to strip the President of his constitutionally assigned role as Commander-in-Chief, but "[t]o be crystal clear," you are "NOT advocating or inciting you to undertake any ... military coup." Oh, OK.

(I take it that Lewis's defense would be that the general's actions wouldn't be a coup because they are authorized under military law. But the military's displacing civilian government in a way that is nowhere authorized by the Constitution -- which is quite explicit both about the President's relationship to the military and about the ways that the President can be relieved of command as Commander-in-Chief -- is surely a coup, even if you've come up with a creative reading of the Uniform Code of Military Justice to try to support it.)

I don't agree with Clayton Cramer's suggestion that Lewis's speech is criminally punishable -- the Constitution trumps the statutes that Cramer cites as well as the statutes that Lewis cites (though at least Cramer's argument is much more plausible as a statutory matter). But surely public calls for a general to oust the President should be pretty firmly denounced, even though they shouldn't be criminally punished.


Isn't the Opus Cartoon That the Washington Post Refused to Run Quite Tame?

Jonathan Adler links to the Opus cartoon that the Washington Post and some other papers refused to run. The Washington Post archive for the strip does have the strip, as well as past ones.

The Post is of course entitled to run or not run whatever cartoons it prefers. Still, we're equally entitled to discuss and, when sensible, criticize its editorial judgment. And it seems to be an odd judgment here. An Editor & Publisher column reports that managers at the Washington Post Writers Group give two possible reasons: "a sex joke a little stronger than we normally see" and that some papers "won't publish any Muslim-related humor, whether pro or con." Yet the sex joke seems quite tame — as best I can tell, it's that Steve Dallas "won't be getting" sex from the girlfriend who converted to being a "radical Islamist." And the reference to Islam seems quite tame, too.

And this is what troubles me: If I'm right that few papers — especially the Washington Post, which isn't exactly in one of the nation's most sexually reticent markets — would normally be put off simply by a mild sexual reference, then we really do have a situation where any humor about Islam (or at least any humor that might be seen as mildly pejorative, or that involves any sexual references, however mild) is off the table. We've gone beyond the position that papers ought to, as a matter of editorial judgment and respect for readers' sensibilities, avoid depictions of Mohammed. Whatever one might say about such a judgment (and a similar judgment about other religions, for instance one that excludes jokes at the expense of the Virgin Mary or some such), at least it would have a pretty narrow effect. Not so if the test is "won't publish any Muslim-related humor, whether pro or con," or even if the test is "won't publish any humor that relates to radical Muslim sexual behavior": That would substantially limit humorous commentary on Islam, on Muslims, and on Muslim practices.

As those who like to stress the importance of accommodating world Islam in various ways point out, there are a billion Muslims out there. But that cuts both ways: A faith that is this important in the world is an important subject of discussion, both in traditional academic and political debate and in that part of social debate that happens through humor and even the comics.

I stress that I'm not speaking about legal rules; as I've argued before, cartoons that depict Mohammed should be as constitutionally protected as other cartoons, and newspaper decisions to reject whatever cartoons they want to reject should be constitutionally protected, too. But if I'm right in my analysis above, then it looks like certain media outlets are establishing or reinforcing a social norm that immunizes Islam and Muslims from a certain kind of commentary. And we as readers and writers should try to fight such a social norm, by criticizing those who are acting on it.

Finally, if I'm mistaken about the tameness of the sexual reference in this cartoon, please do let me know. On the other hand, if you can support this judgment by pointing (a URL would be great) to cartoons that the Washington Post has run that include similar sexual references — or, better yet, include similar sexual references in a context that refers to religion (say, evangelical Christianity) — then please pass those along as well.

Related Posts (on one page):

  1. Whom Did Opus Offend?
  2. The Other Offending Opus:
  3. Isn't the Opus Cartoon That the Washington Post Refused to Run Quite Tame?
  4. The Offending Opus:
  5. Free Opus!

Dayan Quotation:

In the comments to my post reconstructing a quotation, distorted by an ellipsis, attributed to Ariel Sharon, a reader wrote,"Next up, Prof. Bernstein explains the quote attributed to Moshe Dayan, 'we have no solution, you shall continue to live like dogs, and whoever wishes may leave.'" Sure, why not. This quote comes up pretty often, and is a particular favorite of Noam Chomsky. It's generally attributed to Dayan as saying that this is what he said Israel should tell "the Palestinians" or "the Palestinians in the occupied territories."

The problem is that the original English source for this quote is Noam Chomsky, in his 1992 book Deterring Democracy. Not surprisingly, Chomsky provides no meaningful context; all he writes is "Dayan's advice was that Israel should tell the Palestinian refugees [note that even in Chomsky's original, Dayan is referring to "refugees" assumedly living in refugee camps, not Palestinians in general, something that Chomsky has conveniently forgotten over time] in the territories 'that we have no solution, that you shall continue to live like dogs, and whoever wants to can leave — and we will see where this process leads... [beware the ellipsis!] In five years we may have 200,000 less people — and that is a matter of enormous importance.'"

Chomsky's source is Yossi Beilin, Mehiro shel Ihud 42-43 (Revivim, 1985), a Hebrew book written by Israeli dove Beilin. If we have any Volokh Conspiracy readers who are fluent in Hebrew and have access to the book, let me know in more detail what specifically Dayan was referring to, what is missing via the ellipsis, and if, for that matter, Chomsky is indeed quoting accurately (which with Chomsky cannot be taken for granted), please write in.

UPDATE: In a debate with Alan Dershowitz, the cheeky Chomsky states: "Dayan was in charge of the occupation. He advised them that we must tell the Palestinians, that we have no solution, you shall continue to live like dogs, and whoever wishes, may leave. That's the solution that is now being implemented. Don't take my word for it. Go check the sources I cited, very easy, all English." Well, all English so long as you allow Chomsky to cite himself citing the Hebrew original!

FURTHER UPDATE: Here's a translation of the original Hebrew:

At this stage, there was, it seems, in Dayan’s position, a willingness to go back to the international border in Syria and Sinai, to find a way to transfer the refugees from Gaza to the West Bank, to add Gaza, and to divide authority on the West Bank with Jordan.

The single voice that represented the dovish position in the internal deliberations in RAFI [a small center-left party] was Itzhak Navon. Three months after the war, he said, “Time is not in our favor but against us... the West Bank is tied to hundreds of thousands, we need to decide on policy based on coordination with the Palestinians and not with Hussein...! We need to reach a settlement with them, meaning building an independent country. Meaning, part of the West Bank, and the IDF will say... ‘if we don’t stand face to face with [occupy and confront] the Palestinians, we didn’t solve anything, and we cannot keep our position as ruler of a million and a quarter Arabs... it’s a different nation, a different people that you can’t explain to them [the Arabs] why we’re sitting there.”

No one supported this position, and Navon himself didn’t repeat his position in RAFI forums, and later in Labor Party forums.

On the other hand, the RAFI attitude became more hawkish, under the leadership of Moshe Dayan. Even his position became more extreme after the Fall of 1967.

In the RAFI secretariat meeting in September of 1967, Tvzi Shiloah, one of the Founders of the Greater Israel movement, said, “borders is the most delicate thing in world politics, and we need to expel ‘arrangements’ from our thoughts. Our job is to educate our party to the notion that there are no political agreements.”

An argument between Dayan and Peres at the same meeting demonstrates a very extreme approach regarding the Palestinian refugees. Moshe Dayan states during this discussion “let’s say ‘we don’t have a solution, and you will continue living like dogs, and whoever wants will go, and we’ll see how this procedure will work out.’ For now, it works out. Let’s say the truth. We want peace. If there is no peace, we will maintain military rule and we will have four to five military compounds on the mountains, and they will sit ten years under the Israeli military regime. Whoever wants to go, will want. It’s possible that in five years, there will be 200,000 fewer people, and that’s an enormous thing.”

RAFI secretary Shimon Peres retorts, “we could act like Rhodesia, but we need to avoid that. Putting aside our standing in the world, there is a problem for ourselves. We need to consider how to maintain Israel’s moral status, and let’s not ignore that.” To that, Dayan replies, “Ben-Gurion said that whoever approaches the Zionistic problem in the moral aspect is not a Zionist.”

So, first, the original Hebrew source is a secondary source that provides only the barest context for Dayan's remark--all the book tells us is that Dayan's comment illustrates an extreme attitude toward Palestinian refugees, and was made during a meeting with other leaders of the small RAFI party, which was composed of hawkish defectors from the dominant Labor Party. Apparently, Chomsky couldn't be bothered to look up the original transcripts, which are footnoted by Beilin.

Second, Dayan didn't make this remark in the "early 1970s," he made it in September 1967, just three months after the Six Day War.

Third, he didn't say it to his "cabinet colleagues," or in any official government capacity, but at meeting of the leaders of his small party, and his statement on that particular day may or may not have reflected his more general, or his longer-term, views regarding the Palestinians.

Fourth, according the book, Dayan was addressing the situation of Palestinian refugees in the West Bank, not all Palestinians, or even all Palestinians in the West Bank.

Fifth, and by far most significant, Chomsky leaves out the next few sentences uttered by Dayan: "For now, it works out. Let's say the truth. We want peace. If there is no peace, we will maintain military rule and we will have four to five military compounds on the hills, and they will sit ten years under the Israeli military regime." Thus, rather than this quote reflecting a long-term "plan" by Israel, it reflected Dayan's view of the alternative if a peace deal with Jordan (Beilin notes on the same page that Dayan was willing "to divide authority on the West Bank with Jordan"), could not be reached. Moreover, even in the absence of an immediate peace deal, Dayan was not speaking of a permanent occupation, but of a ten-year Israeli presence.

Nevertheless, the quotes in the book don't make Dayan look good. Shimon Peres objects that the occupation proposed by Dayan would make Israel act immorally like Rhodesia, and Dayan responds that moral considerations should be irrelevant.

So, if you want to claim, as Beilin does, that Dayan was prone to adopting extreme views regarding the Palestinian refugees in September 1967, this certainly provides strong supporting evidence. You could argue, moreover, that this suggests a moral blind spot on Dayan's part, as Shimon Peres (whom Chomsky also despises, and also claims was not interested in peace) did at the time. But if you want to argue, as Chomsky does, that the relevant quotation shows that in the early 1970s the man in charge of the Israeli occupation of the West Bank was lecturing his cabinet colleagues (without apparent dissent) that they should reject peace, and mistreat the Palestinian population so badly that they will all want to leave, you are stretching the truth beyond recognition.


Gonzales to Resign:

The Washington Post is reporting that Attorney General Alberto Gonzales will resign this morning. CNN is reporting that the President will nominate Michael Chertoff as his replacement, and name Clay Johnson to head the Department of Homeland Security.

UPDATE: It's official. Gonzales has resigned. In a public statement, Bush announced that Solicitor General Paul Clement will serve as acting Attorney General until a replacement is confirmed. No word yet on whether Chertoff or someone else will get the nod.

Related Posts (on one page):

  1. Gonzales to Resign:
  2. The Chertoff Rumor:
  3. Could Gonzales Be Going?

Sunday, August 26, 2007

The Offending Opus:

Here is the Opus comic strip by Berke Breathed that many newspapers decided not to run. Why? According to this story in Editor & Publisher, it was the references to Islam, a not-so-subtle sex joke, or the combination of the two. (Link via NRO Media Blog.)


Animal Farm: George Orwell's Animal Farm is one of my very favorite books. It combines wit, social commentary, and clever allegory in a short and entertaining volume. Even better, I recently found out that the entire book is available online at Cool. Wikipedia offers some interesting commentary, too.

The Martyrdom of Mearsheimer and Walt:

The subject [of their book on the Israel lobby] will certainly prompt furious debate, though not at the Center for the Humanities at the Graduate Center at the City University of New York, the Chicago Council on Global Affairs, a Jewish cultural center in Washington and three organizations in Chicago. They have all turned down or canceled events with the authors, mentioning unease with the controversy or the format.

Those Jews really know how to censor people; can you imagine, for example, that the 6th and I synagogue in D.C. refused Mearsheimer and Walt's request to have a forum to promote their thesis that the "Israel lobby" is endangering America? These Jewish stormtroopers had the temerity to request that any such presentation include an opposing voice! If an anti-Israel propagandist (Mearsheimer) who spoke at a Council for American Islamic Relations event and gleefully sported a "Walt & Mearsheimer Rock. Fight the Israel Lobby" button, can't successfully invite himself to speak unopposed at a synagogue/Jewish cultural center in DC, clearly we have reached the point of no return with regard to freedom of speech.

Shame on the New York Times (Times Select) for covering this non-story, peddled to stimulate sales of the forthcoming Israel Lobby book.

UPDATE: By the way, none of the above-mentioned organizations has invited me to speak about any of my books, even though I'm perfectly willing to appear with critics. Censorship!

FURTHER UPDATE: A related, and very hard-hitting, editorial in the liberal Jewish weekly, The Forward.


The Chertoff Rumor: If the rumors are true that Gonzales will soon resign and Bush will nominate Chertoff to replace him as AG, that would be a very positive development. Gonzales should have left months ago for the good of the Department, and his departure would be better late than never. Chertoff would be a strong choice for AG: as a former AUSA, former Assistant AG for the Criminal Division, and former federal judge, he's a much better fit as AG than he was as Secretary of Homeland Security. In a perfect world it would be better to have an outsider come in as AG to let the Department of Justice make more of a fresh start. But then we don't live in a perfect world, and among the realistic options I think Chertoff is the natural choice. On the other hand, I don't know enough about DHS to know who would or should replace Chertoff. Any thoughts?

Related Posts (on one page):

  1. Gonzales to Resign:
  2. The Chertoff Rumor:
  3. Could Gonzales Be Going?

How Homicidal Was the Old West?--

Randy Roth (Ohio State), the leading historian studying homicide rates, has a piece in Reviews in American History [available only to some readers logging on through their university libraries] that examines two items of academic folklore. In this post, I address the widespread myth that homicides were rare in the “Old West.”

In recent years it has become fashionable for historians (such as Robert Dykstra and Michael Bellesiles) to claim that it was a myth that the Old West was particularly violent. Notheless, other historians, such as Clare McKanna and David Peterson Del Mar, have reported very high rates of homicide in the West in the late 19th century (compared to current rates in the US).

Who is right?

Roth carefully reviews the data and confirms the work of McKanna and Peterson Del Mar, showing it to be consistent with recent work by Kevin Mullen, John Boessenecker, and (the late, great) Eric Monkkonen, .

Roth concludes:

Because the counties in McKanna’s study reflect the diversity of rural southern and central California as a whole, there is reason to believe that the homicide rate in the southern two-thirds of the state (excluding San Francisco) was between 66 and 80 per 100,000 adults per year—the 99% confidence interval for McKanna’s seven counties combined. If we include San Francisco and Los Angeles counties, the interval for all of southern and central California was between 60 and 70 per 100,000 adults per year—seven times the homicide rate in the United States today (and 28.7 standard deviations away). An adult exposed to that rate for sixteen years stood a 1 in 96 chance of being murdered, and an adult exposed to that rate for 45 years would have stood a 1 in 34 chance of being murdered. We cannot make assumptions about the homicide rate in northern California, which has yet to be studied. But with McKanna’s study alone, we have 29 percent of the population of southern and central California (38 percent outside San Francisco); and with the addition of Mullen’s study of San Francisco and Monkkonen’s of Los Angeles, we have 57 percent of the population. The claim that the area was not unusually homicidal is statistically and arithmetically impossible.

The data of Peterson Del Mar and McKanna show that there is no such thing as a “fallacy of small numbers.” The laws of probability make it possible to predict the character of a large population from a sample of surprisingly modest size, as long as that sample is representative of the population as a whole. That is why national opinion polls of 1,500 or 3,000 potential voters can be so accurate, even for subgroups of the population. That is the genius of statistics.


How homicidal was the Old West? According to the best historical evidence today, the answer is: Extremely Homicidal. Thus, another bit of academic folklore bites the dust.


Could Gonzales Be Going?

U.S. News suggests Attorney General Alberto Gonzales may resign and be replaced by Homeland Security Secretary Michael Chertoff. Sounds like a good idea to me (if a little late).

Related Posts (on one page):

  1. Gonzales to Resign:
  2. The Chertoff Rumor:
  3. Could Gonzales Be Going?

Sunday Song Lyric: This week I am opting for something timeless instead of topical: Duke Ellington's "Solitude." This one of Ellington's greatest compositions. Indeed, it is probably one of the greatest songs of all time. "Solitude" never gets old, whether it is being sung by Louis Armstrong or Matt Johnson for The The. I love hearing the lyrics from Billie Holiday, but also love the instrumental version on Money Jungle (a phenomenal Ellington album with Charles Mingus and Max Roach). The rich, yet simple, music captures the feeling of the song perfectly.
In my solitude you haunt me
With reveries of days gone by
In my solitude you taunt me
With memories that never die
I sit in my chair
Filled with despair
Nobody could be so sad
With gloom ev'rywhere
I sit and I stare
I know that I'll soon go mad
In my solitude
I'm praying
Dear Lord above
Send back my love

Nationwide Decline in Housing Prices Predicted for 2007:

N.Y. Times:

The median price of American homes is expected to fall this year for the first time since federal housing agencies began keeping statistics in 1950.

Economists say the decline, which could be foreshadowed in a widely followed government price index to be released this week, will probably be modest — from 1 percent to 2 percent — but could continue in 2008 and 2009. Rather than being limited to the once-booming Northeast and California, price declines are also occurring in cities like Chicago, Minneapolis and Houston, where the increases of the last decade were modest by comparison.

The reversal is particularly striking because many government officials and housing-industry executives had said that a nationwide decline would never happen, even though prices had fallen in some coastal areas as recently as the early 1990s.

As I noted over a year ago, the idea that a nationwide year over year decline in housing prices was virtually impossible, despite an unprecedented nationwide price bubble--driven by low interest rates and incredibly lax lending standards--was extremely ill-considered (okay, last time I called it "idiotic").