The Volokh Conspiracy

Favre:

The initial estimate from Football Outsiders is that Favre adds 0.4 expected wins for the Jets this year (from 7.2 to 7.6). Numerous caveats apply.

CNN Website Gives Edwards Affair Higher Billing than the Russia-Georgia Fighting:

It's telling that, as of midnight today, the CNN website is giving the Russia-Georgia conflict a lower billing than the latest revelations about John Edwards' extramarital affair. This order of priorities is ludicrous from the standpoint of the real relative importance of these events. But it does fit my theory that most people who follow political news do so primarily to get information they find interesting or entertaining rather than to learn about objectively important issues in order to become better-informed voters. A tawdry affair by a presidential candidate who dropped out of the race a long time ago is insignificant compared to a bloody conflict with major implications for US strategic interests in a crucial part of the world (to say nothing of the loss of life). But the affair may have greater entertainment value, and entertainment is what CNN must provide in order to give the majority of viewers what they want and keep up its ratings.

UPDATE: MSNBC also has the Edwards story as its top headline. But, to its credit, the Fox News site is giving top billing to the Russia-Georgia story - despite Fox's longstanding reputation as the more superficial of the three big news networks.

UPDATE #2: I suppose I should make it clear that I'm not claiming that Fox is generally less superficial than CNN or MSNBC, merely that they chose the right order of priorities in this particular instance.

All Related Posts (on one page) | Some Related Posts:

The Declaration of Independence and the Case for Non-Ethnic Secession:
Was the Declaration of Independence an Example of Secession, Revolution, or Both?
Tentative Thoughts on The Russia-Georgia Ceasefire Agreement:...
Zbigniew Brzezinski on Russia and Georgia:
CNN Website Gives Edwards Affair Higher Billing than the Russia-Georgia Fighting:
Fighting Between Russia and Georgia:
Secession, Ignorance, and Stupidity:

Fighting Between Russia and Georgia:

Large-scale fighting has broken out between Russia and Georgia. According to news reports, Georgia launched an offensive to suppress secessionist forces in the breakaway region of South Ossetia; the secessionists have long been backed by Russian troops. Russia has responded by launching a counteroffensive and bombing targets throughout Georgia.

At this point, I don't have enough information about the situation to comment in any great detail. For example, it's hard to assess the validity of Georgian President Mikhail Saakashvili's claim that Russian airstrikes have been "specifically targeting [the] civilian population." (though sadly, it would not be a complete surprise if they were, given Russian practices in nearby Chechnya). Moreover, the backstory to this conflict is long and complex, and I doubt I have the knowledge to make more than tentative judgments about it.

That said, I think it's unlikely that Russia's role here is entirely benign, given the longstanding history of Russian imperialism in the region, Russia's recent aggressive policy towards its neighbors under Vladimir Putin, and Georgia's role as a recently democratized state and ally of the US that Russian leaders fear as a potential catalyst for pro-democracy movements within Russia itself. At the same time, it was probably unwise of Saakashvili to launch a large-scale offensive in South Ossetia that he should have realized could lead to war with a much more powerful state - a war that Georgia probably can't win if Russia is willing to commit enough of its forces to overwhelm the Georgians. Both of these points are, of course, tentative and could be invalidated by later revelations.

The conflict also has important implications for the US. Georgia has 2000 troops serving in the US-led coalition in Iraq, which are now likely to be called home. At this point, the Georgian force is the third-largest Coalition contingent in Iraq (after the US and Britain). The fighting could disrupt strategically important oil pipelines passing through the region. The US faces a difficult dilemma in so far as we may have to choose between backing a staunch ally and Bush's effort to improve relations with Russia (whose cooperation he needs on issues like the effort to impose sanctions against Iran for its nuclear program).

UPDATE: Washington Post columnist Anne Applebaum, an expert on Russian politics and foreign policy, has an excellent op ed on the conflict.

All Related Posts (on one page) | Some Related Posts:

Very Interesting Religious Accommodation Case from the En Banc Ninth Circuit:

It's Navajo Nation v. U.S. Forest Service; I haven't yet read the whole opinion (I'm on a trip), but here are the opening paragraphs:

In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. [Footnote: It appears that some of the Plaintiffs would challenge any means of making artificial snow, even if no recycled wastewater were used.] The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government-approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds.

Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion. They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.

Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” -- a term of art chosen by Congress to be defined by reference to Supreme Court precedent -- on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.

Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.

“[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government -- let alone a government that presides over a nation with as many religions as the United States of America -- could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988).

Edwards now suggests that he was "99% honest" when he lied.

The New York Times, Washington Post, and all the others have lifted the news blackout on John Edwards. It's worth noting that Edwards has the nerve to suggest that he was being "99% honest" when he lied about his affair.

Politico has Edwards's public statement:

STATEMENT OF SENATOR JOHN EDWARDS

August 8, 2008

Chapel Hill, North Carolina

In 2006, I made a serious error in judgment and conducted myself in a way that was disloyal to my family and to my core beliefs. I recognized my mistake and I told my wife that I had a liaison with another woman, and I asked for her forgiveness. Although I was honest in every painful detail with my family, I did not tell the public. When a supermarket tabloid told a version of the story, I used the fact that the story contained many falsities to deny it. But being 99% honest is no longer enough.

I was and am ashamed of my conduct and choices, and I had hoped that it would never become public. With my family, I took responsibility for my actions in 2006 and today I take full responsibility publicly. But that misconduct took place for a short period in 2006. It ended then. I am and have been willing to take any test necessary to establish the fact that I am not the father of any baby, and I am truly hopeful that a test will be done so this fact can be definitively established. I only know that the apparent father has said publicly that he is the father of the baby. I also have not been engaged in any activity of any description that requested, agreed to or supported payments of any kind to the woman or to the apparent father of the baby.

It is inadequate to say to the people who believed in me that I am sorry, as it is inadequate to say to the people who love me that I am sorry. In the course of several campaigns, I started to believe that I was special and became increasingly egocentric and narcissistic. If you want to beat me up – feel free. You cannot beat me up more than I have already beaten up myself. I have been stripped bare and will now work with everything I have to help my family and others who need my help.

I have given a complete interview on this matter and having done so, will have nothing more to say.

Though Edwards implies that he was being "99% honest" when he was lying, and that "I used the fact that the story contained many falsities to deny it," he didn't just deny that the story was true. He said it was "completely false."

I have a hard time believing that Edwards is being 51% honest even now, let alone 99% or 100% honest.

I certainly don't see much reason for believing Edwards over the National Enquirer on this story. When his word is worth less than that of a supermarket tabloid, it's an indication of how far he has fallen.

In the original National Enquirer stories, they claimed to have Hunter's emails to her friends disclosing the affair, including gushing about a recent rendezvous. Further, according to the Enquirer, Hunter told friends that she and Edwards met at hotels where the campaign was staying. I wonder if these emails match up with the restricted dates that Edwards now claims for the affair. In other words, even when John Edwards claims that he has stopped lying, I wonder whether he is a decent enough human being to be believed.

I'll bet the Republicans are hoping that the Democrats are foolish enough to give Edwards a prime speaking spot at the convention.

I think Barack Obama is too smart for that.

Can Federal Judges Police Themselves?

The WSJ Legal Blog poses the question today with an accompanying story.

New Jersey Appellate Court Invalidates "Blight" Condemnation:

A New Jersey appellate court recently invalidated a "blight" condemnation in Long Branch, N.J. on the grounds that there wasn't enough evidence of genuine blight to meet the standards required by the New Jersey Constitution. The case is called City of Long Branch v. Anzalone; I have not been able to find a copy of the opinion online. But for readers with access to Westlaw, the cite is 2008 WL 3090052. [UPDATE: the opinion is available here; HT: VC reader Daniel Schmutter]

New Jersey is one of many states that has blight condemnation laws so broad that almost any property can be defined as "blighted" and then condemned. Last year, in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, the New Jersey Supreme Court invalidated a provision in New Jersey's blight law that allowed condemnation of any property that is "underutilized" or not fully productive. The Court ruled that New Jersey's state constitution (which gives local government the power to take "blighted areas") does not allow condemnations under a definition of "blight" this broad. Jonathan Adler and I discussed Gallenthin in this series of posts last year. Gallenthin requires that property not be condemned as "blighted" unless there is proof of "deterioration or stagnation that has a decadent effect on surrounding property." As I explained in this post , this is still a fairly lax standard; almost every neighborhood goes through periods when it is "stagnant" or "deteriorating." But at least it no longer simply gives local governments a blank check to condemn any property they want. Anzalone is perhaps the first major case applying Gallenthin. It ruled that Gallenthin and the New Jersey Constitution require that any area can only be declared "blighted" if there is "substantial evidence" of blight. And blight justifying eminent domain is only present if the poor condition of the area to be taken causes genuine harm to surrounding neighbhorhoods. A mere insufficiency of economic growth and developmentis not enough for a blight designation:

[The court's] reading of Gallenthin . . . requires a municipality to find that the physical condition of the properties at issue was contributing to social problems not only within the redevelopment area, but also in nearby areas. Even though redevelopment would be expected to result in higher property tax payments and more spending for local businesses, the difference between the actual level of economic activity in the redevelopment area and the level that might be achieved after its transformation does not by itself amount to blight. Eminent domain based solely on such a difference would instead amount to condemnation due to the area's perceived insufficiency of wealth, and it would exemplify the [NJ Supreme] Court's fear that most property would be continuously subject to forced redevelopment if the threshold requirement were nothing more than the possibility of a more profitable use of the land.

In Anzalone itself, the court found that the city had presented little evidence beyond "a a bland recitation of applicable statutory criteria and a declaration that those criteria are met," along with a poorly evidenced "expert" report. That was not considered enough to justify condemnation.

Like Gallenthin, Anzalone still gives broad leeway to local governments. It emphasizes that blight designations are considered "presumptively valid" and that proof of blight requires only that there be substantial evidence of "deterioration" or stagnation that might harm surrounding areas. A local government with skilled lawyers and staff can probably come up with such evidence for a wide range of neighborhoods. That might still happen even in this case, since the appellate court remanded the case to the trial judge to give the city an opportunity to provide additional evidence that the area really is blighted under the Gallenthin standard.

However, the two cases do tighten New Jersey's blight criteria relative to previous practice. In New Jersey, there are now at least some areas that cannot be declared blighted and condemned on that basis. So bad was preexisting law that this actually constitutes significant progress.

Unfortunately, as I explained in this article, most states still allow almost any property to be declared "blighted" and condemned. This is true even in the majority of those states that have passed new eminent domain reform laws since Kelo v. City of New London was decided in 2005 (see Part II of this article for details).

CONFLICT OF INTEREST WATCH: I have done a variety of pro bono work over the years for the Institute for Justice, the public interest law firm that represented the property owners.

Related Posts (on one page):

New Developments in Important New Jersey Eminent Domain Case:
New Jersey Appellate Court Invalidates "Blight" Condemnation:

Home Schooling Legal in California:

So the California Court of Appeal holds, interpreting California statutes, and reversing its earlier statutory decision in the Rachel L. case.

The court also holds there's some sort of constitutional right to home-school — again, seemingly contrary to its conclusion in Rachel L. — but that this right may be limited in this case to protect against a specific threat to the children's health and safety, because the children "have already been found dependent due to abuse and neglect of a sibling." For more on the general constitutional question, see here.

On the road now, can't blog more, but thought I'd note this.

Mamma Mia Movie-- Highly Recommended: I have seen the musical Mamma Mia three times, twice in Boston and once on Broadway. So obviously I like the play. Why? Well for one thing I like the ABBA songs, and always have, despite the more refined taste of my 1970s peers who preferred the melodious sounds of Neil Young, Van Morrison, and Bob Dylan. (Commentators: take it away!)

Another thing I really liked about Mamma Mia was the cleverness with which playwright Catherine Johnson wove the songs and their (largely) unaltered lyrics into an entertaining story. Not a deep one, mind you, but a cute Broadway musical-type story that was a teeny bit clever to boot. In contrast, I recently saw Jersey Boys and loved it, not truly realizing before how many big hits the Four Seasons had. I also knew nothing about the history of the group, which now seems odd since we knew so much about the personal history of other groups from the 60s and, judging from the play, the Four Seasons seem to have a truly colorful history. (Hint: jail, the Mob, and Joe Peschi were involved.) Yet the songs in Jersey Boys only relate very tangentially to the plot, which is about development of the group itself. Mamma Mia was a traditional musical in which the songs advance the story.

When the Mamma Mia movie came out and was highly reviewed, I knew the songs themselves would provide a minimum level of enjoyment. Yet, I was not eager to see it. As everyone knows, movie versions of plays are typically overblown given the need to expand beyond the confines of a stage and fill the screen with images and action. And the on-screen performances often seem phony given that screen actors, rather than Broadway performers, are typically cast to satisfy box office demands. Translating a play into a film usually undermines what made the play work well enough to be made into a film in the first place. And I am not a big Meryl Streep fan. I recognize her enormous talent, of course, but rarely look forward to seeing her performances.

Yesterday I finally saw Mamma Mia the film and was shocked at how good it was. I don't want to give anything away so let me offer a few brief reasons why. First and foremost, Meryl Streep's performance as Donna Sheridan was really impressive. Her singing was surprisingly good, but her dancing and verve were amazing, especially given her age. As a bonus, her powerful acting ability injected a real meaning and emotion into the songs that never came through in the play. (Especially "The Winner Takes it All".) So too was Amanda Seyfried's performance as Sophie, Donna's daughter. Because the plot revolves around these two characters, the strength of their performances elevated the entire production.

Second, and related to the first, because of the acting abilities of Streep and Seyfried, combined with the closeups allowed by film, there was an emotional element that was lacking in the play, and aspects of the plot made more sense because of it. Third, the plot itself was tweaked in small ways (I won't mention) that enhanced the believability of the love story, and especially the largely contrived ending, which in the film seems less contrived. Finally, the cinematography and choreography were both outstanding. Perhaps it works so well because the gorgeous Greek island where it was shot provides a naturally confined "stage" on which the action transpires.

As with the play, the male characters are mere appendages to the females around whom the plot revolves. While Pierce Brosnan's acting ability helps sell the love story, unfortunately he cannot sing a note, while called upon to sing an extra ABBA song not in the play. The audience kept tittering whenever he tried. Ironically, Brosnan's gross inability to sing made the singing of the other film actors all the more impressive as, obviously, there remain limits on how a voice can be digitally enhanced in the studio.

[My one beef with the film as compared with the play is a small but needlessly offensive plot change involving the Harry Bright character's background. (Warning: tiny extraneous plot spoiler follows.) A middle-aged man, in the play he is revealed to gay with a stable long-term relationship back home. Played by Colin Firth (one of my favorite actors), in the movie he has just 2 dogs at home and an obvious attraction to a much younger island native, with whom it is intimated he hooked up at a drunken bachelor party. Had the play and film plots been reversed, I might have been annoyed at the political correctness of the film-makers, but to introduce a derogatory gay stereotype into a story where it previously did not exist is stupefying.]

So if you like musicals, and especially if you liked the play, you should see Mamma Mia the film.

[comments now activated]

"Local Idiot to Post Comment on Internet": From the Onion. Thanks to blm28 for the link.

Military Jury Gives Hamdan Time Served Plus Five Months: Wow. Hamdan's response:

Hamdan thanked the jurors for the sentence and repeated his apology for having served bin Laden.

"I would like to apologize one more time to all the members and I would like to thank you for what you have done for me," Hamdan told the panel of six U.S. military officers, hand-picked by the Pentagon for the first U.S. war crimes trial in a half century.

Nuremberg or Nothing for Bush Administration Officials?: TPM TV has an interview with Dahlia Lithwick on whether the Bush Administration officials responsible for legal strategies in the GWOT should be tried for war crimes Nuremberg-style, or whether a Truth Commission South-Africa-style or just some investigations or even nothing is more appropriate:

I personally think it's delusional to think that the public would allow former U.S. government officials to face war crimes prosecutions or anything remotely like it for their legal advice in the war on terror. Those who want war crimes investigations brought against Bush Administration officials remind me a lot of the Republicans who wanted Bill Clinton impeached and removed for his conduct in Monicagate in the late 1990s. They're mistaking the anger and sense of moral righteousness among the base with the attitudes of the public at large.

But I doubt we'll get to that point anyway. Based on what we know about George W. Bush, isn't it highly likely that he'll pardon everyone prospectively on his way out in January 2009? After all, the officials were doing the President's bidding. In an Administration as focused on loyalty to the President as this one, I would be surprised if he would let his people face the prospect of prosecution down the road.

Bizarre Case of Two Gazan Students:

Seven Palestinian students were awarded Fulbright scholarships to study in the U.S. Israel, whose border with Gaza is closed due to its state of war with the Hamas Gazan government, refused to allow the students to enter Israel on the way to the U.S. U.S. officials put heavy pressure on Israel to allow the students to travel through Israel, including by leaking the story to the U.S. media in a manner very unflattering to Israel. Israel eventually agreed to accede to U.S. demands, including with regard to three students whom it deemed to be particular security risks. Two of the students were given passage from Gaza to the Jordanian border, and after several delays apparently caused by mistakes by U.S. consular officials, here's what happened next:

At 8 P.M., when the border crossing closes, the Israeli border terminal workers approached the U.S. diplomats and suggested they return to Gaza and try crossing the following day, after having dealt with the passport matter. "I'm not interested, I'm not moving from here until they open the bridge," said one American diplomat and sat down in the road in protest.

After consulting with the Foreign Ministry, the Defense Ministry and the office of the Shin Bet chief, it was decided to leave the bridge open, until the Jordanians finally agreed to the Americans' request at 9 P.M. and allowed the Palestinians to pass. But this was not the end of the two Palestinians' travails.

The high school student remained in Amman for a few days. His friend departed for Washington on Saturday night. However, after a 12-hour flight, when he got to the border control station in Washington, an unpleasant surprise awaited him. The U.S. immigration officials informed him that his visa has been canceled and put him on a plane back to the Jordanian capital. The high school student, who was still waiting in Amman, was notified that his visa had been canceled, too. He already returned to Gaza yesterday, disappointed, while his friend remains frustrated in Jordan.

Israel has asked the State Department in Washington for some clarifications, and local officials are especially upset at the behavior of the American diplomat at the Allenby Bridge. "It's a disgrace," said a senior Foreign Ministry official. "If I had behaved that way at an American border crossing, I'd either be in jail or no longer in the U.S."

A spokesman for the U.S. State Department told The New York Times, which first reported yesterday on the revocation of the visas that the visas were canceled because of new information received by the U.S. authorities. The paper reported that Rice was unhappy about the way these cases were handled and that a thorough review had been ordered to prevent a recurrence.

"This is one of the oddest things we have encountered in recent years," an Israeli official said of a long sequence of events that began with intense American pressure to allow two young Palestinian students to leave Gaza to study in the United States and ended with the U.S. barring their entry and canceling the visas it had granted them.

Sure sounds that way. I'm especially troubled that post 9/11, the State Department was putting intense pressure on Israel to allow into the U.S. the students whom the Israelis (who, let's face it, have a much better record on these things than U.S. authorities) specifically thought had ties to terrorism and were security risks, a belief U.S. authorities apparently eventually came around to, at the last minute.

Religious Accommodations:

My post on religious accommodations, and in particular the statement, "But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom," drew this response from a commenter:

Correction: It's not part of American tradition but part of a U.S. Supreme Court adventurism under the faulty disguise it has the power to dictate social religious preferences within states.

Actually:

1. None of the examples I gave are U.S.-Supreme-Court-mandated religious accommodations; all were done by the democratic process.

2. While from 1963 to 1990, the U.S. Supreme Court read the Constitution as mandating some sorts of religious accommodations, the 1990 Employment Division v. Smith decision almost entirely rejected that doctrine. The rule right now is that the Free Exercise Clause almost never mandates religious exemptions from generally applicable laws. (I have written in support of the Smith constitutional rule.)

3. Following the Smith decision, it was Congress that enacted the Religious Freedom Restoration Act, which provided that governments have to exempt religious objectors from generally applicable laws that burdened their religious practices (unless applying the law to the objector was necessary to serve a compelling government interest). Congress voted in favor of RFRA by a 97-3 vote in the Senate and by voice vote with no objection in the House.

4. It was then the Supreme Court, in 1997, that struck down RFRA as it applied to states. State legislatures in about a dozen states, and state voters in Alabama, have since enacted state-level RFRAs that do apply to state laws. (State supreme courts in about a dozen more states have also read their state constitutions as mandating some sorts of exemptions from generally applicable laws.)

So you can fault the Court for lots of things, but don't turn hostility to the Court -- or even to constitutional constraints on legislative action more broadly -- into a macro (ctrl-shift-A for "activism") that becomes a blanket response to everything. The American tradition of religious accommodation has generally been a tradition of accommodation precisely by the political branches of government.

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"Tyson Plant Drops Labor Day for Muslim Holiday":

So reports Fox News:

A 5-year contract approved by members of the Retail, Wholesale and Department Store Union at the Shelbyville, Tenn., [Tyson Foods] plant last November includes the change [of paid holidays to exclude Labor Day and instead include the Muslim Eid al-Fitr holiday] to accommodate Muslim workers....

The seven additional paid holidays are the employee's birthday, New Year's Day, Martin Luther King Jr. Day, Memorial Day, Independence Day, Thanksgiving and Christmas, Mickelson said....

Tyson officials said that approximately 250 of the plant's 1,200 employees are Somalis who entered the United States as political refugees. Most, if not all, are believed to be Muslim ....

Tyson officials said the contract was agreed to by 80 percent of the union's 1,000 members at the plant.

This year Eid al-Fitr falls on Oct. 1.

English First, in a seemingly non-English-related objection (or is it that they just don't like the Arabic name?), complains:

English First today denounced as multiculturalism run amok a decision by a Tennessee Tyson Foods poultry plant to eliminate Labor Day as a paid holiday for employees and replace it with a paid observance of a Muslim holy day....

A new immigrant to America, legal or illegal, enjoys more rights than taxpaying American citizens, Boulet said. The notion that immigrants should adapt to America is being destroyed one bilingual education class, one press one for English, and one ACLU-approved Muslim foot-washing bath at a time.

Bill Poser's post at Language Log brought this to my attention, and I agree with him that this is entirely fine. "You might think that this is the kind of thing that labor unions are supposed to do: negotiate holidays that are convenient for their members." The business wins, the Muslim members win, and it seems like the non-Muslim members are generally quite happy, too, judging by the vote.

But more importantly, America was expressly not founded on the notion that immigrants should adapt to America's religious beliefs. Indeed, some of the most important early colonies were settled by people who didn't want to adapt to English religious beliefs, and while some of them did promptly try to expel or exclude people who wouldn't accept the colonies' new religious orthodoxy, thankfully that largely disappeared by the Founding of the nation, and religious tolerance -- including accommodation of minority religious groups -- continued to increase since then. Jews were allowed to come to America without rejecting their own religious beliefs (for an early and surprising legal accommodation of Jewish religious beliefs, see here). Quakers' and other groups' opposition to swearing oaths is expressly accommodated by several provisions in the Constitution, which allow affirmations instead of oaths. More recently, businesses and schools with large Jewish workforces or student bodies have set up some Jewish holy days as days off. The same should apply to Muslims.

Not all religious beliefs, of course, have been accommodated, and not all should be accommodated. But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. And the union vote at the Tyson plan is not "multiculturalism run amok" -- it's the American tradition of religious tolerance and religious accommodation working as it should be.

Finally, just to respond to the anticipated complaints about Islam being special because of the violence of some Muslim extremists, or even the endorsement of religious violence by substantial numbers of Muslims around the globe: None of this has anything to do with whether Somali immigrant Muslims working at a meatpacking plant should get a day off. When someone suggests religious accommodations aimed at letting people (of whatever religion) contribute to terrorist organizations, or engage in suicide bombings, I'll happily agree that they should be rejected -- just as religiously motived attacks on abortion clinics and other sorts of religious violence should remain fully punishable. But that some of the Somali-born meatpackers' coreligionists are doing bad things based on bad ideas doesn't make it the desire to have Eid al-Fitr off any less legitimate.

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Lysander Spooner Quote of the Day: In editing Lysander Spooner's 1886 A Letter to Grover Cleveland for a conference I am organizing, I happened upon the following colorful observation I thought others might enjoy:

To say, as the advocates of our government do, that a man must give up some of his natural rights, to a government, in order to have the rest of them protected the government being all the while the sole and irresponsible judge as to what rights he does give up, and what he retains, and what are to be protected — is to say that he gives up all the rights that the government chooses, at any time, to assume that he has given up; and that he retains none, and is to be protected in none, except such as the government shall, at all times, see fit to protect, and to permit him to retain. This is to suppose that he has retained no rights at all, that he can, at any time, claim as his own, as against the government. It is to say that he has really given up every right, and reserved none. . . .

It is especially noticeable that those persons, who are so impatient to protect other men in their rights that they cannot wait until they are requested to do so, have a somewhat inveterate habit of killing all who do not voluntarily accept their protection; or do not consent to give up to them all their rights in exchange for it.

If A were to go to B, a merchant, and say to him, "Sir, I am a night-watchman, and I insist upon your employing me as such in protecting your property against burglars; and to enable me to do so more effectually, I insist upon your letting me tie your own hands and feet, so that you cannot interfere with me; and also upon your delivering up to me all your keys to your store, your safe, and to all your valuables; and that you authorize me to act solely and fully according to my own will, pleasure, and discretion in the matter; and I demand still further, that you shall give me an absolute guaranty that you will not hold me to any accountability whatever for anything I may do, or for anything that may happen to your goods while they are under my protection; and unless you comply with this proposal, I will now kill you on the spot," — if A were to say all this to B, B would naturally conclude that A himself was the most impudent and dangerous burglar that he (B) had to fear; and that if he (B) wished to secure his property against burglars, his best way would be to kill A in the first place, and then take his chances against all such other burglars as might come afterwards.

Our government constantly acts the part that is here supposed to be acted by A. And it is just as impudent a scoundrel as A is here supposed to be. It insists that every man shall give up all his rights unreservedly into its custody, and then hold it wholly irresponsible for any disposal it may make of them. And it gives him no alternative but death.

If by putting a bayonet to a man's breast, and giving him his choice, to die, or be "protected in his rights," it secures his consent to the latter alternative, it then proclaims itself a free government, — a government resting on consent!

Verdict in Hamdan Case: Story here.

Medellin Opinions on the Stay Application: For Supreme Court geeks, yesterday's opinions denying the application for a stay of execution in the Medellin case are fascinating. A brief per curiam opinion (presumably authored by Justice Scalia as the Circuit Justice) denies the stay, and four Justices authored individual dissents. Of particular interest, Justice Souter addresses the question of how long a Justice should adhere to his own dissent: In his view, sticking to his guns through at least through the end of the Term is reasonable. In addition, Justice Breyer takes the unusual step of criticizing the majority for turning down his efforts to get a courtesy fifth vote for a stay. (I don't think his criticism has much force, as the courtesy fifth vote is generally given when four Justices are voting to grant cert and need a 5th for a stay -- not when four Justice want a stay but aren't ready to grant cert -- but so it goes.) Anyway, this is probably too geeky for all but the most serious Supreme Court geeks, but I thought I would flag the opinions anyway.

Too Overweight to Execute:

Death row inmate Richard Wade Cooey III is mounting an interesting challenge to his pending execution: He claims he is too overweight to be executed by lethal injection.

Cooey's public-defender attorneys filed a lawsuit in federal court Friday contending that his weight, the difficulty of finding veins suitable for lethal injection, and a drug he's taking for migraines and seizures mean that Cooey might suffer "unnecessary pain in the execution of the death sentence." . . ..

Cooey was convicted and sentenced to death for the murders of Dawn Marie McCreery, 20, and Wendy Jo Offredo, 21, on Sept. 1, 1986. Cooey and an accomplice, Clint Dickens, abducted and raped the Akron-area college students before choking and bludgeoning them to death. Dickens, a juvenile at the time, was sentenced to life in prison.

Cooey was 12 hours away from death on July 24, 2003, when a federal judge stopped his execution, primarily because of a dispute over his court-appointed attorneys' representation and billing in the case.

A nurse who examined Cooey in 2003 while he was in the Death House at the Southern Ohio Correctional Facility near Lucasville said his veins were "sparse." Cooey told officials to come in early to begin the lethal injection, adding, "I don't have any veins."

Dr. Mark Heath, an expert witness hired by Cooey's defense team, indicated that Cooey's "morbid obesity" and the anti-convulsant and painkilling medication he takes for seizures combine to cause a "higher risk of an inhumane execution."

The AP also covers Cooey's challenge here.

One Ohio paper thinks Cooey's argument "makes a mockery of the justice system" and expects federal courts to reject his claims forthwith. Here's a prediction of my own: How Cooey's argument fares depends on what panel he draws when his claim reaches the Sixth Circuit.

"We Play Heavy Metal Because Our Lives Are Heavy Metal."

The Washington Post's "PostGlobal" has an interesting article on the rise of heavy metal music in the Muslim world.

Heavy metal has had a more powerful and controversial appeal than perhaps any other element of Western culture that has taken hold in the Muslim world. It might seem strange that a genre of music long associated with sex, drugs and even Satan worship should be popular in Muslim countries. But heavy metal can't be reduced to the "hair" or "glam" metal epitomized by one-time MTV staple bands such as Motley Crue or Quiet Riot. Instead, the much harsher sound of death, doom and other forms of extreme metal are winning a growing following across the Muslim world.

This is partly because the subjects these and other extreme metal bands deal with - death without meaning, the futility of violence, the corruption of power - correspond well to the issues confronting hundreds of millions of young Muslims today, the majority of whom live under authoritarian governments in societies torn by inequality, underdevelopment and various types of violent conflict.

As one of the founders of the Moroccan metal scene, the Sorbonne-educated Reda Zine, explained to me when I first met him: "We play heavy metal because our lives are heavy metal."

Questionable donations to McCain.--

John McCain and the GOP have received some questionable donations from oil executives:

Alice Rocchio is an office manager at the New York headquarters of the Hess Corp., drives a 1993 Chevy Cavalier and lives in an apartment in Queens, N.Y., with her husband, Pasquale, an Amtrak foreman.

Despite what appears to be a middle-class lifestyle, the couple has written $61,600 in checks to John McCain's presidential campaign and the Republican National Committee, most of it within days of McCain's decision to endorse offshore oil drilling.

At a June fundraiser, the Rocchios joined top executives at Hess Corp. — Chairman and Chief Executive Officer John Hess, his wife, Susan, his mother, Norma Hess, and six other officials in giving a total of $313,500 to a joint McCain-RNC fundraising committee, Federal Election Commission records show.

More at Instapundit.

An Open Letter to Carl Monk:

Professor Bainbridge has written an open letter to AALS Executive Director Carl Monk on the proposed boycott of one of the hotels under contract for the AALS annual meeting in San Diego. It nicely summarizes why the AALS should not — indeed, cannot — acquiesce to the proposed boycott if it is to remain a principled academic association dedicated, among other things, to open academic inquiry, freedom of conscience, and freedom of expression. His letter concludes:

it is especially critical that the AALS acknowledge that there is no issue of discrimination here. There is no evidence that the hotel in question discriminates against gays. Instead, this is viewpoint discrimination on the part of a handful of activists who are seeking to hijack the AALS for purposes of holding a boycott intended to punish someone with whose views on a contested issue of public policy they differ. If the AALS caves to the critics, it will have allowed a vocal contingent to hijack a purportedly diverse organization for the ends of a particular point of view that may not be shared by all members of the organization.

Note that I endorse Prof. Bainbridge's sentiments even though I support gay marriage (largely due to the work of my co-blogger Dale Carpenter). I believe that the institution of marriage and its associated blessings should be shared with same-sex couples. But I also believe that it would be unconscionable for a purportedly academic association to endorse the view that opposition to the imposition of gay marriage by judicial fiat, in and of itself, constitutes "discrimination" against homosexuals and that such views are beyond the pale of acceptability within such an organization.

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Courthouse Confessions: Here's a very interesting blog of photos and dialogue from people leaving the Manhattan Criminal Court. Thanks to Andrew Sullivan for the link.

UPDATE: Scott Greenfield adds some context here.

The AALS Boycott: I don't have much to add on the substance of the AALS boycott: I agree with Monroe Freedman that these things are a matter of taste, based, I think, on one's subjective sense of what ideas or causes are "beyond the pale" and the subjective value of declaring so in public. As a result, there isn't a whole lot to say on the merits. On the other hand, I can say one thing with certainty: Whoever thought up a boycott that requires you to be in San Diego in January but forbids you to attend the panels has a keen sense of how to appeal to the academic mind.

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The AALS and Political Boycotts:

David notes efforts to organize an American Association of Law Schools boycott of a hotel whose owner, Doug Manchester, has contributed money to an anti-gay marriage referendum campaign. This raises the interesting question of whether the AALS should be engaging in political boycotts at all. My view is that it shouldn't.

The AALS is an organization that is supposed to promote legal education and academic research in a politically neutral way. Taking stands on controversial political issues such as gay marriage is inconsistent with the organization's mission of promoting a free exchange of ideas and education that includes a wide range of viewpoints. If the AALS has an official position in favor of gay marriage (which is what a boycott would amount to), it cannot be a credible neutral organizer of panels, conferences, and academic research on gay marriage-related questions. The same goes for taking positions on other political issues.

Moreover, if political opposition to gay marriage is so wrong that the AALS should forego any economic relationship with those who engage in it, how can it continue to have Catholic, evangelical Protestant, and Mormon schools as members? When it comes to promoting opposition to gay marriage, the Catholic Church and other religious organizations are much bigger players than Doug Manchester. I don't see how the AALS can shun Manchester as beyond the pale while keeping Notre Dame and Brigham Young as members in good standing.

For what it's worth, I sympathize with the boycotters' objective here. If the state is going to be involved in defining and regulating marriage at all, I believe that it should recognize gay marriage on par with heterosexual marriage. But the AALS is not the right organization to pursue that objective.

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Boycott of AALS Meeting in San Diego:

[UPDATE Tuesday evening: As I noted in the comments below, I agree with other commentators that the AALS, as a scholarly organization representing institutions and individuals with diverse viewpoints, should not participate in any boycott based on someone's political views. And, to the extent the boycotters are acting through purported scholarly organizations such as the Legal Writing Institute, those organizations should revisit the issue and recognize that they are not political bodies and have no business advocating politically motivated boycotts. The caveat is that if enough faculty will boycott the conference on their own initiative to ruin it, that would be an ideologically neutral reason for the AALS to change its plans--not because it institutionally cares about Manchester's political views, but because it cares about running a successful conference.]

Some law professor organizations have announced they will boycott the annual law professors conference to be held in San Diego in January because the owner of one of the hotels, Doug Manchester, donated $125,000 to to support an initiative banning same-sex marriage in California.

I have a few thoughts, avoiding the obvious issue as to whether an owner's donating money to a lawful cause with which one disagrees should be deemed a sufficient reason to boycott a business, and if so, under what circumstances. (Feel free to comment on that issue below, however.)

First, I wonder if the boycotters have investigated the AALS's contract with the hotel. I assume that when it comes to a huge event like this one, the AALS would have to pay a large penalty to the hotel if it were to move the conference at this date. Would the boycotters want the hotel owner to get a lot of the AALS's money without giving anything in return?

Second, boycotts like this always seem a little odd to me, because they seem to operate on the principle that commercial transactions only benefit the "seller." So, if I don't want Mr. Manchester benefiting from my money, I won't stay at his hotel. Yet, basic economics tells us that the buyer also receives a "surplus" from the transaction, often larger than what the seller gets. Put another way, shouldn't same-sex marriage advocates take satisfaction in the idea that Mr. Manchester will be providing services to his political opponents for significantly less than the value of those services to them (the actual price, plus the consumer surplus?). Given the ideological makeup and interests of law professors, this will be like a Pat Buchanan-owned hotel hosting the annual AIPAC conference!

A counter-argument, I suppose, is that AALS members could probably get almost as much consumer surplus at another hotel, while depriving Mr. Manchester of his profits [of course, with sufficient notice, the hotel could probably rent the rooms out for almost as much as its getting from the AALS]. But that where my first point comes in again; it will actually be costly to the AALS but not necessarily Mr. Manchester, to boycott the hotel at this point. That said, the AALS has put itself in an awkward position by moving a previous conference from San Francisco due to an ongoing union labor dispute. The organization will now have to explain why supporting labor unions is more important than supporting same-sex marriage.

The Legal Writing Institute, among others, appears to be taking the position that holding the conference at the planned hotel would violate their nondiscrimination policy. I don't quite get this; there does not appear to be any evidence that the hotel, as a business, discriminates in any way against gay clients.

Finally, as an interesting side note, there are a few jurisdictions in the United States that ban discrimination against people based on political affiliation, a category that is likely broad enough to encompass this boycott. Indeed, I know of organizations in DC that won't publicly advertise office space available in their buildings, because D.C.'s law could require them to rent to an organization whose view they found abhorrent. (The Heritage Foundation hardly wants NARAL ads going out with a "Heritage Foundation Building" return address.) Boycotters obviously should have the right to boycott, and laws banning discrimination based on politics should be deemed unconstitutional. Thanks to TaxProf for the pointer.

UPDATE: Apparently, a local labor union is co-organizing the boycott. While the union's leader claims that the union is very concerned about the gay marriage issue, I suspect that the fact that the hotel is not "organized," has more to do with the union's interest.

FURTHER UPDATE: Larry Ribstein has a few questions for the boycotters:

* What if Mr. Manchester didn’t contribute money to oppose same sex marriage cause, but supported it vocally? Of course contributions are a form of expression. Would or should these groups make a distinction between contributions and other expression of belief? * What if Mr. Manchester were only a majority shareholder? A minority shareholder? Vice president? CFO? Since the protest here isn’t over the hotel’s policies, control would seem to be irrelevant. What if he had only invested a lot of his money in the holding company of the hotel? The franchisor? * Why just the hotel? Why not the restaurant owner? The food supplier to the hotel? Or any of their shareholders? * Who exactly would the boycott be hurting? I assume that Mr. Manchester has some kind of contract with the AALS. But what about his workers, many of whom depend on tips? Come to think of it, what if hotel workers or one of its unions had expressed homophobic or anti-same-sex marriage views? * How would the boycotters feel about teaching students who opposed same sex marriage? (I note that the chair of one of the boycotting groups heads the legal writing program at a Catholic law school). * If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?

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Symbolic Political Expression, in 1700s England:

I'm writing an article on symbolic expression and the original meaning of the First Amendment, and in the process -- partly just for color -- I've collected some especially interesting forms of symbolic political expression from that era, chiefly from America but also from Britain.

My colleague Steve Yeazell pointed me to one item yesterday that struck me as particularly amusing (though I suppose it wasn't so amusing at the time): During the customary toasts to the king, some would pass their glass over a water decanter before drinking. This symbolically changed the toast from a toast to the king into a toast to the "king over the water," which is to say the Pretender. Cute.

This in turn led me to this bit of nonsymbolic expression, from John Byrom:

God bless the King, I mean the Faith's Defender;
God bless -- no harm in blessing -- the Pretender;
But who Pretender is, or who is King,
God bless us all -- that's quite another thing.

Another Post-Heller Second Amendment Decision:

U.S. v. Robinson (E.D. Wis. July 23) (Adelman, J.):

[D]efendant fails to show that Heller renders his prosecution [for being a felon in possession of a firearm] constitutionally infirm....

First, defendant fails to demonstrate that Heller applies to felons. The Court specifically stated in that case:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose....

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Defendant claims that this is dicta, but I cannot so quickly dismiss this explicit limitation on the Court’s holding. Further, defendant cites no authority in support of his claim that the Second Amendment right extends to felons. To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect. E.g., United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)); [also citing some post-Heller district court and unpublished circuit court cases]. Finally, the Seventh Circuit regularly rejected such challenges pre-Heller, see, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (noting that even advocates of an individual rights interpretation of the Second Amendment excluded felons), and nothing in Heller persuades me that the court of appeals is likely to change course now.

Second, defendant can find little support in Heller given the circumstances of his case. Heller’s actual holding is:

that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Defendant contends that he was accosted by police on the porch of his home and found to be in possession of a firearm, which he claims he possessed to protect himself and his family in the high crime area in which they lived. However, he glosses over the circumstances of his encounter with the police. [Details omitted. -EV] Even under its broadest possible reading, Heller does not sanction a felon carrying a gun in his pocket in public, then pulling that gun on a police officer [which is what the court concludes happened here -EV]. The Second Amendment interests in self-defense and protection of the home discussed in Heller cannot reasonably be extended to cover defendant’s conduct here.

All Related Posts (on one page) | Some Related Posts:

Jack Goldsmith on the Press and Executive Branch Secrecy:

Jack Goldsmith's excellent New Republic article on executive branch secrecy during the War on Terror raises a difficult conundrum: neither the press nor the executive branch can be trusted to make unilateral decisions about secrecy. As Goldsmith points out, the press cannot always be trusted to decide for itself which classified information it might get its hands on to report and which not to. The New York Times and other media outlets claim to "balance" national security interests against the public's right to know when they decide what to publish. But, as Goldsmith notes, they have strong incentives to err on the side of revealing too much:

[New York Times reporter Eric] Lichtblau assures us that it does, noting that the Times editors serve as a "built-in backstop, a check and balance" on reporters, and adding that for "the editors to even consider running a piece, we knew that there had to be a legitimate public interest that outweighed any potential harm to national security."

But . . . there are many reasons to be skeptical. Saying the editors are a check on what the Times publishes is like saying we can trust the president to curb the excesses of his subordinates. It affords little comfort, especially since the public has no access to the process of the editors' decision-making. One wants to know precisely how the editors weigh the public interest in knowing against national security harm. Even if the editors possess the expertise to identify and to assess these trade-offs (something that is doubtful), is their judgment distorted by the pursuit of fame and profit? The separation of powers, the institution of elections, and the free press help to ensure that government's self-directed motives do not get out of hand. But there are few checks on the press itself. The most powerful constraint on the press is the marketplace of ideas--but this marketplace is designed to sort out truth, and it is no corrective when journalists irresponsibly disclose sensitive national security information.

As Goldsmith notes, reporters and editors stand to gain "fame and profit" if they reveal a major "scoop." By contrast, they get little if any benefit from refusing to publish classified information that may benefit the enemy. Goldsmith suggests that the Times crossed this line in some of their reporting on the Administration's surveillance program, reporting which he claims ended up benefiting Al Qaeda by giving them valuable information.

Obviously, as Goldsmith recognizes, there is also a flipside to this. If the executive branch can decide unilaterally what information to reveal, they can use the pretext of national security to cover up human rights abuses, spying on their political opponents, and other misconduct. As Goldsmith explains, "press scrutiny of secret government activity is important to keeping government accountable. Fear of leaks causes national security officials to think twice about what they do, and deters them from doing things that they should not do."

Thus, the executive branch cannot be trusted to make unilateral decisions in this area; but neither can the press. The former is likely to keep too many secrets, the latter too few. There is no easy solution to this dilemma.

One possible approach is to recognize that we need an arbiter for these issues that is as neutral as possible in its incentives, free of both the press' incentive to overreveal and the executive's incentive to engage in excessive secrecy. Though it has flaws of its own, the judicial branch does have the advantage of lacking either of these perverse incentives. So we may want to allow judicial review of classification decisions, perhaps similar to the FISA system of judicial preclearance for warrantless surveillance. If the courts rule that a classification decision was unjustified, reporters could be shielded from prosecution; if they rule in favor of the government, reporters who go ahead and publish nonetheless should perhaps face more severe sanctions than under traditional classification laws.

Alternatively, we can try affect reporters' and officials' incentives through after the fact sanctions rather than by trying to fine-tune the classification system. As Goldsmith points out, it is often difficult or impossible to punish reporters who reveal classified information, even in cases where there has been real damage to national security. As standard law and economics of crime suggests, a difficulty in ensuring certainty of punishment might be partially obviated by increasing its severity.

By the same token, it is often also difficult to punish executive branch officials who use secrecy as a tool for covering up crimes and violations of civil liberties. Here too, we might want to consider increasing the severity of punishment for offenders, so as to at least partially offset the lack of certainty.

None of these proposals can fully "solve" the problem and it may well be that there are other, superior alternatives. The beginning of wisdom, however, is to at least recognize that we have a double-edged dilemma here.

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Jack Goldsmith on the Press and Executive Branch Secrecy:
Goldsmith on Lichtblau:

Goldsmith on Lichtblau: In The New Republic, Jack Goldsmith has a very interesting review of Eric Lichtblau's new book on his reporting about the Bush Administration's surveillance programs. A taste:

Lichtblau and his colleagues did not just report on the fact that the United States was aggressively tracking terrorists. They disclosed, much more damagingly, many operational details about how it did so. They reported not only the details of the SWIFT program, but also on data mining and pattern analysis of telephone and e-mail information, the government's listening in on purely international communications that "transit" through the United States, the close cooperation of private telecommunications firms in these efforts, and government analysis of ATM transactions, credit card purchases, wire payments, and more. I am not permitted to say which of those stories are true, but I can say that the true ones involved matters that were unknown to our enemies, and therefore gave the government a big advantage in tracking them. Their disclosure helped terrorists to avoid forms of communication that we were good at monitoring, and instead to switch to channels of communication in which we lack comparative advantage.

Hat tip: Instapundit.

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Jack Goldsmith on the Press and Executive Branch Secrecy:
Goldsmith on Lichtblau:

Another Court Decision Striking Down a Campus Speech Code,

from the U.S. Court of Appeals for the Third Circuit in DeJohn v. Temple Univrsity (thanks to How Appealing for the pointer). Temple had revised its policy on January 15 of this year, but the court still held that it had the jurisdiction to hold the earlier one unconstitutional.

The code was framed as a ban on, among other things, "sexually harassing" speech (labeled "expressive[ or] visual conduct of a sexual or gender-motivated nature") that creates an "intimidating, hostile, or offensive environment" based on sex; but the rationale of the decision would apply equally to speeches that supposedly harasses based on religion, race, sexual orientation, and the like. Here are some key passages:

In Saxe [an earlier case that involved high schools], we noted that there is no “harassment exception” to the First Amendment’s Free Speech Clause; that is, “we have found no categorical rule that divests ‘harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” We explained that while there is no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause, “[w]hen laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. ‘Where pure expression is involved,’ anti-discrimination law ‘steers into the territory of the First Amendment.’” Id. at 206 (quoting DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir. 1995) [a case noting possible First Amendment problems with hostile work environment law -EV]).

Recognizing, then, that some “harassing” speech may be worthy of First Amendment protection, we look to see whether Temple’s Policy on Sexual Harassment reaches too much expression that is constitutionally protected. The relevant portion of Temple’s challenged sexual harassment policy reads:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment. [emphasis added by court -EV] ...

[T]he policy’s use of “hostile,” “offensive,” and “gender-motivated” is, on its face, sufficiently broad and subjective that they “could conceivably be applied to cover any speech” of a “gender-motivated” nature “the content of which offends someone.” This could include “core” political and religious speech, such as gender politics and sexual morality. [Footnote: Indeed, in the instant case, the Plaintiff, a graduate student pursuing a master’s degree in Military and American History, argues that he felt inhibited in expressing his opinions in class concerning women in combat and women in the military.] Absent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work -- the policy provides no shelter for core protected speech.

I think even bans that do require that the speech be "severe or pervasive" in order to be punished unacceptably deter some constitutionally protected speech, for reasons I discuss here and here. Among other things, such bans will naturally lead to punishing even individual instances of speech, that create a supposedly hostile environment when aggregated with speech by other speakers. I'm therefore troubled by the potential approval of the seemingly narrower "severe-or-pervasive"-based policy. And I'm troubled by the court's ambiguous suggestion that the Tinker disruption standard applies not just to K-12 schools but also to universities; for more on the ambiguousness of this suggestion, but see PDF pp. 28-29, suggesting university student speech should be much more protected than K-12 student speech.

Still, at least the panel is right in striking down the broad policy here. I'm also pleased that the panel declined to expressly approve of workplace harassment law, noting that Third Circuit precedent "does not pass on whether the EEOC language [endorsing workplace harassment liability under a standard similar to Temple's] is or is not constitutional," and that the panel expressly acknowledged that

some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility. Certainly speech amounting to “fighting words” would not be protected, but the policy covers much more speech than could be prohibited under Tinker’s substantial disruption test as well as speech that does not rise to the level of “fighting words.”

For my view of what sort of speech would be protected against workplace harassment liability, see here, though I would think that even more protection should be offered in the university context.

Colorado Will Not Contest the Tenth Circuit Decision on Exclusion of "Pervasively Sectarian" Universities from Scholarship Programs:

Colorado has announced that it will not contest the Tenth Circuit decision striking down exclusion of "pervasively sectarian" institutions from government-paid student scholarships. One more reason that "it's [not] likely that the Supreme Court will review this decision," though not one I was relying on when making my prediction ....

Thanks to Marc Stern of the American Jewish Congress for the tip.

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Colorado Will Not Contest the Tenth Circuit Decision on Exclusion of "Pervasively Sectarian" Universities from Scholarship Programs:
Tenth Circuit Strikes Down Exclusion of "Pervasively Sectarian" Institutions from Government-Paid Student Scholarships:

A Different Perspective on Unusual Names:

The discussion last week of unusual names led a couple of people to e-mail me their personal unusual name stories. Here's one, from a very smart and successful former student of mine:

[Another former student] passed along your very entertaining piece for Slate.com on the case law of various funny names. I thought you might like to know that my middle name is "c" -- as in the scientific abbreviation for the speed of light.

I probed further, and learned that it was indeed c, lower case, in italics, and with no period. What's more, this was the name the student's parents gave her, on her birth certificate. The reasons for the name:

I come from a family of scientists, my mother's maiden name begins with a "C," and I was born very very quickly. My father has this to add: "I don't think you have a middle name. You have a middle symbol. Something simple, ethereal, brief, fast, and different."

And my ex-student's experience with the name, which "over time has become [her preference] as well [as her parents']:

[I]t's a pain -- class rings, diplomas, passports, etc. are almost always printed incorrectly, despite my efforts to get it right. I omit it from my resume, etc. to eliminate the possible perception that I've made a typo spelling my own name. On the other hand, it's a great ice breaker.

My sense from our correspondence is that the person is quite happy with the name, the (modest) effect it has had on her life, and with her parents' decision to assign the name to her.

I should note, of course, that much of this has to do with this being (1) the person's middle name, which can usually easily be included or omitted as the person prefers, and (2) a middle name that's similar to normal middle initials, so that it can be turned into a "C." with no questions asked if some institution demands a middle initial. Being "Jane 5 Doe" or "c Doe" would be much harder, I think, than being "Jane c Doe."

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A Different Perspective on Unusual Names:
From the Talula Does the Hula from Hawaii Decision:
The Winner of the Name Change Derby?
Odd Reasoning:
Boy Named Sue:
Fun Name Change Cases:

Back to the Dixie Chicks (and Anita Bryant and Many Others):

I've written about private economic retaliation against speakers (see PDF pp. 11-30) in the past, including on this blog. I don't want to repeat all that here, but I want to point to a new such incident: A decision by the Legal Writing Institute to refuse to patronize a hotel because its owner contributed to an anti-same-sex-marriage ballot initiative.

Naturally, the hotel owner is unlikely to be bankrupted by this one incident; but I take it that people who engage in such refusals to deal often hope that many others will join in, and put still more pressure on the speaker or political contributor. And of course the Dixie Chicks didn't have their careers ended as a result of the boycott. So the analogy seems quite close, and in my article and posts I pointed to still more such incidents, such as boycotts or proposed boycotts of businesses that contribute to Operation Rescue, to pro-life candidates and ballot measures, to Planned Parenthood, and to anti-race-preferences initiatives. In any case, I thought this was worth highlighting, as an interesting example of a broader practice.

"Antiscience" Violence at UC Santa Cruz:

The NYT reports on the firebombing of two researchers' homes in Santa Cruz, California. Authorities believe animal rights activists opposed to biomedical research are responsible for the attacks.

About 5:30 a.m. Saturday, two small bombs ignited outside the researchers’ homes. In one of the attacks, a vehicle was destroyed in a faculty member’s driveway. At the second residence, a two-story home near the university’s front gates, the fire forced the researcher, his wife and two children to flee the home from an upstairs window. The fires were quickly extinguished.

One minor injury was reported, according to The Santa Cruz Sentinel, which also said the police were viewing the attacks as acts of attempted homicide and domestic terrorism. . . .

The university described the attacks as the latest in a series of threats and provocations from those opposed to “biomedical research using animals,” including a February incident in which several masked intruders entered a researcher’s home. After a confrontation, the intruders fled. That incident followed harassing phone calls and vandalism of researchers’ homes, the university said.

Alexander Solzhenitsyn, RIP:

Alexander Solzhenitsyn, the great Russian dissident and exposer of communist crimes, has passed away.

In books such as The Gulag Archipelago and A Day in the Life of Ivan Denisovich, he did more than any other Russian writer to expose the crimes of communism. Solzhenitsyn's opposition to the communist regime was in large part a result of a term that he was forced to serve in in a Gulag slave labor camp for writing a letter critical of Joseph Stalin while serving in the Soviet Army during World War II.

Unlike fellow dissidents such as Andrei Sakharov, Solzhenitsyn was a Russian nationalist, not a liberal democrat. As such, he was suspicious of Western-style democracy and individual rights. While he was not as much of a chauvinist as some other Russian nationalists, his writings defending czarist Russia and Russian culture sometimes verged into anti-Semitism. For example in one of his last books, Two Hundred Years Together, Solzhenitsyn made the absurd claim that the czarist-era Russian government was not anti-Semitic and that Russian Jews bear as much or more blame than Russian gentiles do for the historic conflicts between the two groups. As Cathy Young has pointed out, in view of the czarist state's "systematic oppression and violence" against the Jews, this is "a bit like asking blacks to accept their share of blame for Jim Crow." Solzhenitsyn's nationalism also led him to endorse some of Vladimir Putin's authoritarian measures, and to oppose allowing Ukraine to become independent of Russia after the fall of the Soviet Union (he did, to his credit, support independence for all the non-Slavic parts of the former Soviet empire, which he did not consider to be legitimate Russian possessions).

It is not my intention here to emphasize Solzhenitsyn's negative aspects. For what it's worth, I think that while Solzhenitsyn was wrong to excuse and minimize the crimes of czarist Russia, he was right to emphasize that the oppression of the Soviet Union was rooted more in communist ideology and institutions than in Russian cultural tradition. As he pointed out, similar repression occurred in every other communist state, including those whose preexisting cultural traditions were very different from Russia's.

Overall, I believe that the good Solzhenitsyn did greatly outweighs his misguided statements on some issues. Solzhenitsyn deserves to be remembered for the fortitude he showed during his years in the Gulag and for his courage in resisting and exposing the crimes of a brutal totalitarian regime.

McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":

Canada's MacLean's magazine has an excellent article on the United Nations campaign to create a new international law norm banning "defamation of religion."

Last year, Eugene Volokh and I criticized this movement in a series of posts. As I first pointed out in this post, the campaign - which is spearheaded by authoritarian Muslim states seeking to curtail criticism of Islam - exemplifies the dangerous influence of repressive regimes over the content of international law. John McGinnis and I have analyzed this problem in detail a series of articles (see here and here). John and I do not believe that all new international law norms are as dangerous as this one. But we do suggest that the influence of nondemocratic states over the content of these norms should lead us to be wary about allowing them to override the domestic law of liberal democracies.

An interesting aspect of the McLean's article are the comments by Louise Arbour, former UN High Commissioner for Human Rights. In the past, Arbour was supportive of efforts to censor speech she perceived as insulting to religions, including the famous Danish Mohammed cartoons. She claimed that publication of the cartoons might violate international law banning "hate speech" and further argued that international law requires states to criminalize "xenophobic" and other prejudicial speech (see pg. 1220 of this article for cites). In the MacLean's article however, Arbour is quoted as denouncing the Muslim states' campaign to censor speech that supposedly "defames" Islam at the UN Human Rights Council:

Louise Arbour, the former Canadian Supreme Court justice who served as the UN human rights commissioner, accused the countries of imposing "taboos" over the [UN Human Rights] council. "It is very concerning in a council which should be . . . the guardian of freedom of expression, to see constraints or taboos, or subjects that become taboo for discussion," she said at a news conference. She also noted that the treatment of homosexuals, who are prosecuted as criminals in a number of Islamic countries and others, is "fundamental" to the debate on sexual discrimination around the world. "It is difficult for me to accept that a council that is the guardian of legality prevents the presentation of serious analysis or discussion on questions of the evolution of the concept of non-discrimination," Arbour said.

Ironically, Arbour herself advocated imposing "constraints" and "taboos" to criminalize speech that she considered to be excessively hostile to particular religions or ethnic groups. Her current dissatisfaction with the Muslim states' efforts to take her principles farther than she intended is an excellent illustration of Eugene's point that censorship regimes tend to break out of the initial seemingly reasonable limits that their supporters might have wanted to impose.

As Eugene noted, this is particularly true of a broad, amorphous norm such as a ban on "defamation of religion." Given the broad scope of religious ethics, almost any political or ideological statement might be seen as offensive to the values of one religious group or another. To some theologically conservative Muslims and Christians, advocacy of gay equality is just as offensive to their religious sensibilities as a negative portrayal of the Prophet Mohammed was to those who sought to suppress the Danish cartoons. And claims that Muslim nations mistreat homosexuals might be viewed as no less "defamatory" of traditional Islam than the Mohammed cartoons. Arbour's desire to permit the former while censoring the latter is unlikely to cut any ice with the would-be censors. The right place to block this particular slippery slope is at the very top of the hill.

All Related Posts (on one page) | Some Related Posts:

Governments -- Don't "Inflexibly Cling[] To Free Speech ... With Absolute Disregard for Religious Feelings":
McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":
Opinion Preliminarily Enjoining SFSU Civility Code...
The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:
Baltimore Hebrew University Professor Supporting Legal Penalties for "Negative Depiction of Religion":
A New International Law "Value" -- Freedom from "Defamation of Religions"?

New study says gay couples really do want marriage:

One of the most significant developments in the debate about same-sex marriage is that it is gradually moving from abstract discussions about philosophy and civil rights to concrete debates about evidence and experience. As more countries and states recognize gay marriage, we learn more and more about its effects and the characteristics of the families seeking it.

Some opponents of gay marriage, like the Institute for Marriage and Public Policy (IMAPP) in a report two years ago, have argued that few gays are even interested in marriage where it's available to them. Presumably, this observation is meant to undermine the claims of SSM supporters that marriage is really needed by gay families. It also supports the notion that it's not worth running even the small risk entailed in changing marriage for the benefit of a tiny minority of a tiny minority. SSM supporters, including me, responded that the IMAPP report wasn't really an argument against gay marriage, but mostly did not challenge the underlying finding that at least initially the uptake rate had been low.

Now the UCLA's Williams Institute, which supports same-sex marriage, has taken another look at the numbers. In a new report studying the recognition of domestic partnerships, civil unions, and gay marriages across the country, the report challenges the conclusions of the skeptics that gays don't really care about marriage. The report concludes:

Data from the states that have already extended legal recognition to same-sex couples support the conclusion that same-sex couples are entering into these relationships at significant rates, with over 40% of same-sex couples already in legally recognized relationships in those states. While the proportion of legally recognized same-sex couples is still substantially smaller than the percentage of different-sex couples who are married, we predict that the rates will reach parity within the next twenty years.

In addition, the data show that same-sex couples respond to changes in how states define their relationships. For example, average monthly registrations increased in the District of Columbia when the domestic partnership rights were increased. In New Jersey, the average number of monthly civil unions was higher than the number of domestic partnerships once the expanded civil union status was made available. Conversely, when California changed domestic partnership to a status much closer to that of marriage, a large number of couples chose to dissolve their official partnerships.

The data from these states also demonstrate that same-sex couples prefer marriage over civil unions or domestic partnerships. While 37% of same-sex couples married during the first year that marriage was made available to them in Massachusetts, only 12% of same-sex couples have entered civil unions and 10% have entered domestic partnerships during the first year in which states have offered these forms of recognition. Beyond having the legal rights and obligations associated with marriage, the name "marriage" matters for same-sex couples. As a result, it may be that in states that have recently extended non-marital forms of recognition to same-sex couples, some couples are waiting to register in the hope that marriage will someday become available or recognized in their state.

What accounts for the different conclusions of the IMAPP report and the Williams Institute study? For one thing, we now have a couple more years of experience with gay marriages and partnerships to draw from. Also, while IMAPP compared the numbers of gays getting married to estimates of the total number of gays in the jurisdiction, the Williams Institute compares the number of gays getting married (or entering other formal legal relationships) to the number of same-sex couple households in the jurisdiction.

The report is full of interesting information, charts, and graphs about the characteristics of same-sex couples as compared to opposite-sex couples, including age and prior marital history, the predominance of lesbian couples among those getting married, and the similar dissolution rates for same-sex and opposite-sex couples.

The Patry Copyright Blog Closes:

Bill Patry, copyright treatise author and one of the leading copyright experts in the nation, has closed The Patry Copyright Blog. A sad day for the Progress of Science and useful Arts.

Stanley Kurtz on "Obama's Lost Years."--

Stanley Kurtz has a long profile on Barack Obama's years in the Illinois State Senate: "Barack Obama's Lost Years: The senator's tenure as a state legislator reveals him to be an old-fashioned, big government, race-conscious liberal."

Kurtz's primary sources are the Hyde Park Herald and the Chicago Defender. Over the last few months, I have gone through a lot of the Chicago Defender stories myself. While I wouldn't spin the facts as negatively as Kurtz does, there are a lot of facts in Kurtz's story that people may not yet realize.

Kurtz on whether Obama is a liberal/progressive:

Throughout the 2008 campaign, Obama has made a point of refusing the liberal label. While running for Congress against Bobby Rush in late 1999 and early 2000, however, Obama showed no such compunction. At a November 1999 candidate forum, the Hyde Park Herald reported that "there was little to distinguish" the candidates, who "struggled to differentiate themselves" ideologically. Acknowledged Obama, "[W]e're all on the liberal wing of the Democratic party." Indeed, the common political ideology of the candidates was a theme in Herald coverage throughout the race. Rush's background suggests what that ideology was: A Chicago icon and former Black Panther, Rush received a 90 percent rating in 2000, and a 100 percent rating in 1999, from the liberal Americans for Democratic Action. Both years the American Conservative Union rated him at zero percent.

So how exactly did these two liberal candidates "struggle to differentiate" themselves in debate? During a candidate forum, for example, when Rush bragged that since entering Congress, he hadn't voted to approve a single defense budget, Obama pounced, accusing Rush of having voted for the Star Wars missile defense system the previous year. Since that contest, Obama's liberalism hasn't exactly been a secret to the folks back home. In 2002, Obama himself could speak hopefully of plans "to move a progressive agenda" through the state legislature, and local observers commonly identified Obama as a "progressive." When it endorsed him for the U.S. Senate in 2004, the Chicago Defender proclaimed Obama "represents renewal of the liberal, humanitarian cause." The Defender went on to assure readers that Obama would support "progressive action" in Washington.

The most interesting characterization came from Obama himself, who laid out his U.S. Senate campaign strategy for the Defender in 2003: "[A]s you combine a strong African-American base with progressive white and Latino voters, I think it is a recipe for success in the primary and in the general election." Putting the point slightly differently, Obama added, "When you combine . . .an energized African-American voter base and effective coalition-building with other progressive sectors of the population, we think we have a recipe for victory." Obama consciously constructed his election strategy on a foundation of leftist ideology and racial bloc voting.

Kurtz on Obama's support for social welfare spending:

Important though it is to Obama, the crime issue runs a distant second to his deepest passion: social welfare legislation. "Big government liberal," "redistributionist"--call him what you like, Obama's fondest hope is to lead America into another war on poverty. Everything in his state-legislative career points in this direction, and Obama calls for a renewal of expensive national anti-poverty programs in his book The Audacity of Hope. True, Obama's promotion of government partnerships with private-sector housing contractors (like Antoin "Tony" Rezko) was supposed to open up novel, post-Great Society solutions to the problem of poverty. Yet, as a devastating Boston Globe report on Obama's Illinois housing policy recently showed, the results of Obama's new war on poverty are just as counterproductive as those of the old war on poverty. Neighborhoods supposedly renovated now lie deserted by the private developers who took Obama's government handouts and ran-quickly building or renovating housing units, but failing to maintain them.

Race and crime issues excepted, Obama's Illinois legislative career as covered in the newspapers essentially boils down to a list of spending measures. . . .

In a 2007 speech to Al Sharpton's National Action Network (NAN), Obama touted his Illinois legislative experience and challenged members of Sharpton's group to find a candidate with a better record of supporting the issues they cared about. . . . Intrigued by Obama's challenge to Sharpton's group, Randolph Burnside, a professor of political science, and Kami Whitehurst, a doctoral candidate, both at the Southern Illinois University-Carbondale, decided to put Obama's Illinois record to the test. The two scholars made a study of bills sponsored and cosponsored by Obama during his Illinois State Senate career.

Published in the Journal of Black Studies, the results are striking. Burnside and Whitehurst produced two bar graphs, one representing bills of which Obama was the main sponsor, arranged by subject, and a second displaying bills Obama joined as a cosponsor. In the chart depicting bills of which Obama was the main sponsor, the bar for "social welfare" legislation towers over every other category. In the chart of Obama's cosponsored bills, social welfare legislation continues to far exceed all other categories, although now crime-related bills are visibly present in second place, with regulation and tax bills close behind. According to Burnside and Whitehurst, other than social welfare and a bit of government regulation, "Obama devoted very little time to most policy areas."

This brings us to what is perhaps the most striking result of our tour through Obama's Springfield days. Conventional wisdom has it that John McCain holds a political advantage over Obama on war and foreign policy issues, while Obama is favored to handle the economy. Yet Obama's economic experience is largely limited to social welfare spending. Indeed, precisely because of his penchant for spending, Obama's fingerprints are all over Illinois's burgeoning fiscal crisis. . . .

Illinois's fate may foreshadow the nation's. Obama's small and carefully targeted spending bills were expressly designed to win passage by a Republican-controlled state senate. But if Obama takes the presidency with a Democratic Congress at his back, we'll likely see a grand-scale version of the fiscal mayhem Obama and his colleagues brought to Illinois.

Obama's overarching political program can be described as "incremental radicalism." On health care, for example, his long-term strategy in Illinois was no secret. He repeatedly proposed a state constitutional amendment mandating universal health care. Prior to the 2002 budget crisis, Obama's plan was to use the windfall tobacco settlement to finance the transition to the new system. That would have effectively hidden the huge cost of universal care from the taxpayer until it was too late. Yet Obama touted his many tiny expansions of government-funded health care as baby steps along the path to his goal. The same strategy will likely be practiced--if more subtly--on other issues. Obama takes baby-steps when he has to, but in a favorable legislative environment, Obama's redistributionist impulses will have free rein, and a budget-busting war on poverty (not to mention entitlement spending) will surely rise again.

You can get an idea of what Kurtz is talking about by looking at Obama's campaign website, especially his Plan on National Service, which proposes to bring 50-100 million Americans within his national service programs, including all public school children starting at the age of 10 or 11.

Obama is proposing so many new programs that he has trouble coming up with distinctive names for them: for example, he promises to create a new “Global Energy Corps” –- not to be confused with his new "Clean Energy Corps" and his new "Green Job Corps."

Global Warming and Natural Disasters:

Joel Achenbach has a fairly sensible column today on climate change and natural disasters.

Somewhere along the line, global warming became the explanation for everything. Right-thinking people are not supposed to discuss any meteorological or geophysical event — a hurricane, a wildfire, a heat wave, a drought, a flood, a blizzard, a tornado, a lightning strike, an unfamiliar breeze, a strange tingling on the neck — without immediately invoking the climate crisis. It causes earthquakes, plagues and backyard gardening disappointments. Weird fungus on your tomato plants? Classic sign of global warming.

You are permitted to note, as a parenthetical, that no single weather calamity can be ascribed with absolute certainty (roll your eyes here to signal the exasperating fussiness of scientists) to what humans are doing to the atmosphere. But your tone will make it clear that this is just legalese, like the fine-print warnings on the flip side of a Lipitor ad.

Some people are impatient with even a token amount of equivocation. A science writer for Newsweek recently flat-out declared that this year's floods in the Midwest were the result of climate change, and in the process, she derided the wishy-washy climatologists who couldn't quite bring themselves to reach that conclusion (they "trip over themselves to absolve global warming").

Well, gosh, I dunno. Equivocation isn't a sign of cognitive weakness. Uncertainty is intrinsic to the scientific process, and sometimes you have to have the courage to stand up and say, "Maybe." . . . This caused that: It would be nice if climate and weather were that simple.

One of the new problems laid at the feet of global warming is the increase in wildfire. Achenbach comments on that too:

Last week, we saw reports of more wildfires in California. Sure as night follows day, people will lay some of the blame on climate change. But there's also the minor matter of people building homes in wildfire-susceptible forests, overgrown with vegetation due to decades of fire suppression. That's like pitching a tent on the railroad tracks.

The message that needs to be communicated to these people is: "Your problem is not global warming. Your problem is that you're nuts."

UPDATE: Joe Romm at ClimateProgress was not impressed with Achenbach's piece, finding it uninformed and tantamount to climate change denialism. To support his charges, Romm cites a study by the U.S. Climate Change Science Program on climate and weather extremes. But the portion of the study he quotes doesn't undermine Achenbach's argument. Roger Pielke finds this quite ironic. Achenbach supports action on climate change, and argues that focus on weather, if anything, could undermine public support for mitigation measures.

If anything, Pielke is too soft on Romm, for the fine print of the USCCSP report does not find an increase in extreme weather impacts as the climate has warmed (and, if anything, the report overstates the climate-extreme weather link). Yet it is Romm who argues Achenbach does not understand the science. Finally, it's a bit odd to argue that someone who argtues we "should definitely worry about global warming" is really a tool of climate change "deniers."

California (and others) to Sue EPA Over GHGs (Again):

The California Attorney General's office is leading a group of state attorneys general and environmental groups that will sue the Environmental Protection Agency for failing to regulate greenhouse gases from ships, planes, and agricultural and industrial equipment. Now that greenhouse gases are considered air pollutants under the Clean Air Act, they maintain, the EPA is obligated to regulate their emissions from such sources. Here's the notice of intent to sue, and news coverage from Reuters and AP.

EPA Libraries Reopening:

Professor Joel Mintz reports on some good news:

earlier this month, EPA and the American Federation of Government Employees (AFGE) signed a Memorandum of Agreement with respect to the EPA's library system. Under that agreement, all of the closed EPA libraries, including EPA's main headquarters library, its chemical library, and the libraries in EPA Regions 5, 6 and 7, will be reopened by September 30th of this year. Most of the materials that were in the closed libraries will be returned to those facilities, catalogued, and made available to the public and to EPA's staff. Moreover, the libraries will be regularly open to the public for sufficient periods of time that full public access to their contents will be assured.

Prof. Mintz undoubtedly deserves some of the credit, insofar as he helped organize letters by law professors protesting the closings. I previously blogged about the EPA library closings here and here.

Sunday Song Lyric: I suppose there's no accounting for the musical taste of seven-year-old girls. for some reason, they can't get enough of Hannah Montana and High School Musical. Fortunately, Ellen's tastes span a broader spectrum. Among her current faves is "It Can't Rain Every Day" off of P.O.D.'s latest album, When Angels & Serpents Dance. It's like a Southtown version of "Tomorrow," and I much prefer it to the Camp Rock soundtrack, especially in the car. The lyrics begin:

This little one tries as hard as she can
Do anything just so she could fit in
She wants a friend so bad she’ll do whatever they tell her
To make them smile she would misbehave
But all the while they would laugh in her face
She begins to cry because she thought that they liked her

Even though you feel all alone
It can’t rain everyday
It don’t rain forever
Your sunshine may be gone but i know
It can’t rain everyday
It don’t rain forever

The full lyrics are here. There's no video for the song, but here is a slide show and here is an acoustic performance.

Saturday, August 9, 2008

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