The Volokh Conspiracy

Josh Blackman has posted some fascinating excerpts from the oral argument in Schwarzenegger v. EMA, the violent video games case. I’ll leave the analytical heavy lifting to our resident free speech experts, such as Eugene. My own view (uncharacteristically in line with conventional wisdom) is that the state government should lose this case and probably will.

On a lighter note, I can’t resist noting the role of Vulcans in a question by Justice Sotomayor:

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

Perhaps California’s lawyer could have argued that video game portrayals of torture of Vulcans are distinguishable from those that depict torture of humans on the grounds that Vulcans have much stronger constitutions and higher pain thresholds. To the extent that Trekkie video game players recognize this, they would be less likely to be inspired to engage in real-word torture of humans as a result of playing the game.

Co-blogger Eugene Volokh recently referenced some criminal laws relating to Buffy the Vampire Slayer. In this 2007 post, I considered the implications of the show for property rights and “quick take” condemnations. Unlike Eugene, I managed to incorporate Faith into my legal analysis as well. As I pointed out, eminent domain abuse is an excellent example of the rogue slayer’s “want, take, have” philosophy in action. Faith eventually realized the error of her ways. But many state and local governments so far have not.

Various commenters on my recent post about Peter Jackson’s upcoming movie version of The Hobbit lament the fact that it is impossible to make a movie based Tolkien’s Silmarillion, the book that describes the history leading up to The Hobbit and The Lord of the Rings. The idea that the Silmarillion is impossible to film has become conventional wisdom. But I’m not sure it’s true.

I don’t doubt that it’s impossible to make a movie version that incorporates the entire Silmarillion. It covers several thousand years of history with numerous stories that are only loosely connected. But it is surely feasible to make movie versions of some of the individual stories, several of which are self-contained and have well-developed characters. The Tale of Beren and Luthien is an obvious choice. It’s a great tale of love and adventure, one of Tolkien’s own favorites among his works. The story of Turin Turambar is a great heroic tragedy, and could also work as a standalone movie (though Hollywood might not like the absence of a happy ending). Turin’s story has now been published in an expanded version based on Tolkien’s previously unpublished notes: The Children of Hurin. I blogged about it here and here. There is easily enough good material there to make a movie version.

These stories are almost as compelling as The Hobbit and the Lord of the Rings. Moreover, there is a built-in audience for movies based on them, since there are so many Tolkien fans out there (including many new ones attracted by the earlier LOTR movies). Once you drop the assumption that a Silmarillion movie must cover the entire book, it becomes a much more feasible project.

I doubt that either Peter Jackson or any other Hollywood bigwig reads the Volokh Conspiracy. Even if they do, they are probably (rightly) skeptical of film-making advice from legal scholars. Still, I hope they would consider the idea of a Silmarillion movie, on the off-chance that they do hear about it.

UPDATE: As at least one commenter points out, a TV series based on the Silmarillion or one of its component parts might also work. Indeed, it might be even more appropriate than a movie, since it would not have to be limited to just 2-3 hours and could tell a longer story.

There is plenty of bad news in the world today. But one recent piece of really great news is that Peter Jackson’s film version of The Hobbit, has finally been greenlighted and is scheduled to begin filming in February 2011 [HT: fellow legal academic Tolkien fan Steve Bainbridge]. Apparently, Jackson has managed to settle the labor union problems that threatened to further delay production.

As Tolkien might have said, this is truly a sign that “A light from the shadows shall spring.” Not all those who wander are lost, including Peter Jackson.

Perhaps it’s not too late to include a part for co-blogger Randy Barnett, who has previous experience in sci fi/fantasy roles. I myself would be happy to sign on as a consultant on Middle Earth property law.

On a (slightly) more serious note, I can’t wait to see the movie. Jackson did an excellent job with the Lord of the Rings films, and I have high expectations for this project as well.

I have previously noted Lord of the Rings director Peter Jackson’s plans to produce a movie based on The Hobbit. Sadly, the production of the film has been delayed by various factors. The latest obstacle is labor union opposition [HT: Danny Sokol]:

You can be forgiven for being skeptical that “The Hobbit” will ever be made. Back in October 2007, Entertainment Weekly announced on its cover that Peter Jackson would be putting together a prequel to his “Lord of the Rings” films based on the J. R. R. Tolkien book series. Since then, everything has gone wrong: Jackson sued New Line over the rights to the film; the Tolkien family then sued them as well; MGM, one of the two studios planning to distribute the film, ran into the money woes…; Guillermo Del Toro, who was supposed to direct, worked with Jackson for two years before dropping out last May and handing the reins back to him. With Jackson taking over, and Ian McKellen, Andy Serkis and Hugo Weaving signed on to reprise their roles, the film was expected to finally be back on schedule.

But now Jackson has a more serious problem: The International Federation of Actors, along with the Screen Actors Guild, is discouraging actors to work on the film because of the non-union labor in New Zealand. This is serious business for SAG: Essentially, actors who work on the film, like McKellen and Weaving, would be in violation of the union’s bylaws and subject to expulsion from the union. The Hollywood Reporter notes just how rare it is for SAG to be so strident about a big-studio picture.

Jackson himself smells an Australian plot behind the labor problems:

Jackson said the wrangle was a “grab for power” and “an attempt by the “Australian bully-boy” to exert influence over New Zealand’s film industry. “It feels as if we have a large Aussie cousin kicking sand in our eyes… or to put it another way, opportunists exploiting our film for their own political gain.”

It would be very unfortunate if nassty unionses or Aussiessss hurtss my Preciousss movie!

Co-blogger Ken Anderson asks my opinion on property rights in Rings of Power. I refer Ken and other interested readers to my thorough May 2008 post on this subject, which includes links to some of the other commentary on this important issue. Nasty Hobbitses have no property rightses in our Preciouss!

As many of our readers know, I have long been fascinated by robotics, and have a particular interest in battlefield robotics and related questions of law.  I felt I was late to the cyberwarfare field – and don’t know enough about it – and so have left it for others.  But robotics … well!  Robotics and the law, well, well!  However, one of the important features about Predator drones and UAVs as the US has developed them is that they involve important overlaps between robotics and cyber fields, because the UAV has to be controlled somehow from halfway around the world.  If the classic conceptual parts of a robot are

• gross locomotion and its ability to move and act in the physical world;
• the brain and computing and processing power; and
• sensors to bring data streams into the computational resources, so as to figure out how to move and what gross physical world actions to take …

then, in the case of how the US uses UAVs, we need to add a fourth, the cyber component of communication and control over long distances.  At that point, questions of cyberattack on the robotic system become live.

This brings me to a movie I just watched last night on Netflix, Surrogates – from the comic book series of the same name to the Bruce Willis movie.  It manages to combine robotics with cyber.  Not bad – I thought the critics were overly tough, frankly, but then I have both low standards and low taste in movies.  I liked it.  I think it is a movie that Jack Goldsmith and anyone else working on cyber and robotics issues should see (I will assume that Glenn Reynolds has already watched it … twice).  With popcorn.

[youtube]http://www.youtube.com/watch?v=Zl_h9RaL0es[/youtube]

(Robots as caregivers have suddenly been surging to the front pages of the newspapers – the Wall Street Journal, followed by the New York Times.  I’ll say more about the implications of that later.)

The New Scientist cites proof that the prehistoric “hobbits” whose fossils were recently discovered by scientists in Indonesia were actually a distinct species, and not human [HT: Instapundit]:

Case closed – the “hobbits” that lived on the Indonesian island of Flores only 13,000 years ago were a unique species of hominid.

This was the first thought when the remains of a tiny, 18,000-year-old female were uncovered in 2003. Then in 2008 Peter Obendorf of RMIT University in Melbourne, Australia, claimed the remains were of a modern human with cretinism, a disease caused by iodine deficiency.

“I have put that claim to rest,” says Colin Groves of the Australian National University in Canberra. He compared the Flores bones with those of 10 people who’d had cretinism, focusing on anatomical features that are typical of the disease. He found no overlap…. William Jungers at Stony Brook University Medical Center in New York agrees the study finally puts that idea to rest.

This provides additional scientific confirmation for Tolkien’s Lord of the Rings. After all, Tolkien’s hobbits were clearly a distinct species as well, one that did not interbreed with the other hominids of Middle Earth. We already had proof that the prehistoric hobbits “travelled half a world,” which is evidence that at least some of them were on an epic quest to destroy the Ring of Power just as Tolkien described.

Tolkien’s theories are gathering more and more scientific support all the time. I look forward to equally rigorous proof of the existence of elves, dwarves, balrogs, and orcs. As I pointed out in my first post on this subject, we in the blogosphere have already sighted numerous trolls even more ferocious than those described by the great author.

Frodo lives!

UPDATE: I should add that this is further proof that we should be more concerned about orcs than zombies. If hobbits are real, orcs can’t be far behind.

Political scientist Dan Drezner has an interesting essay in Foreign Policy magazine that explores how different international relations theories would cope with an invasion of zombies. It’s based on his forthcoming book Theories of International Politics and Zombies, scheduled to be published by the Princeton University Press. Drezner analyzes the possible responses to a zombie invasion predicted by realist, liberal, and neoconservative theories of international relations. Great stuff!

Unfortunately, he doesn’t consider the possible predictions to be derived from libertarian theories of politics. So I will take a (merely metaphorical) stab at it myself:

I would expect many governments to try to use zombies for their own nefarious ends. Zombies might be an excellent tool of repression for authoritarian states. Government efforts to combat the zombie menace might well be hampered by public choice problems. Various interest groups would surely exploit the zombie crisis as an opportunity to lobby for special benefits for themselves under the pretext of combatting the zombies. For example, farm subsidies for dead farmers will surely go up, as lobbyists argue that the dead farmers might turn into zombies themselves unless they are paid off. In democracies, anti-zombie policy might also be compromised by widespread voter ignorance of zombies and irrationality about them. I venture to predict that voters are likely to be even more ignorant and irrational about zombies than they are on most other policy issues.

Finally, I want to congratulate Drezner on his success in persuading a major academic press to publish a book on this subject. It is a great inspiration to all academics who love science fiction and fantasy literature. As soon as I finish my own forthcoming books on political ignorance and the Kelo case, I hope to try to follow up Drezner’s achievement. Perhaps it’s not too early to to see if Princeton University Press might be interested in publishing my proposed book on the law and economics of orcs? As numerous fantasy novels will tell you, they’re a much more imminent threat than zombies.

UPDATE: In the comments, Dan Drezner writes:

While the excerpt in FP does not address the issues you raise, I promise that the book does discuss the ways in which regime type, interest groups and public opinion would shape/constrain counter-zombie policies.

I can’t wait to read all about it! This will surely be the definitive social science work on zombies.

UPDATE #2: Conservative columnist Jonah Goldberg responds to this post here:

I think Somin is letting his commitment to libertarian theory overtake his judgment. It is fundamental to all zombie scenarios that efforts to “weaponize” zombies fail almost immediately. To be sure, governments would try to use zombies for their own nefarious ends, but these efforts would only hasten the advance of the zombie menace….

I will have more to say about this. But let me just throw it out there: a true zombie invasion will trump traditional international theory (never mind farm subsidies!). The computer modeling of zombie proliferation alone would convince realists, neocons, even the vast majority pacifists to either liquidate the zombies at all costs or to bunker down for their own protection. Zombies, quite simply, would be a game-changer.

I think Goldberg may be letting his commitment to conservatism overtake his judgment here. If you’ve ever played Dungeons and Dragons, you know that tyrants have many ways to control zombies and use them for for their nefarious purposes. Even if such efforts are doomed to failure, that doesn’t mean they won’t be tried.

I’m also not convinced that a zombie invasion would necessarily trump all other considerations and suspend the usual tendencies of political systems. In the past, interest groups exploited even the greatest crises (including the Great Depression) to lobby for special benefits. I’m not sure a zombie crisis would be any different. Moreover, Goldberg implicitly assumes that zombies would spread quickly and endanger everyone more or less equally. In reality, their spread might be uneven and some places may be more at risk than others. This would tend to undercut efforts to unite against them.

Ian Murray of the Competitive Enterprise Institute makes this analogy between our current situation and the Lord of The Rings [HT: Instapundit]:

[W]ith even liberal anger against the President growing, perhaps the analogy at the end of this Daily Show segment is worth considering further. The orcs who are despoiling the free enterprise system draw power from the One Ring, the might concentrated in Washington DC and which corrupts even the most noble souls (to be charitable to the President). In order to stop the orcs, we shouldn’t just change the Ringbearer(s) every few years, we need to destroy the Ring itself.

Tolkien was not a libertarian. But he was extremely suspicious of government, an attitude reflected in The Lord Of the Rings and even more in some of his other works. There is a clear synergy between his view of state power and that held by most libertarians. The necessity of destroying the Ring of Power (as opposed to having it wielded by a benevolent ruler, as proposed by several characters at different points in the story) drives home the point. So too does the critique of socialism in “The Scouring of the Shire.”

Unfortunately, however, Murray doesn’t quite get the LOTR analogy right. The ringbearers (Frodo and, briefly, Sam) were the ones trying to destroy the Ring, not use it. Our power-seeking political leaders are actually more analogous to the Ringwraiths – people seduced by their desire for power into becoming the Ring’s and Sauron’s minions.

UPDATE: It seems to me that commenters who angrily attack me for claiming that Tolkien was a libertarian could have saved themselves some trouble by reading the part of the post where I say that “Tolkien was not a libertarian”; he was a conservative traditionalist whose views were strongly influenced by his Catholicism. He was also, however, deeply suspicious of government power, a view evident in both the Lord of the Rings and many of his other writings.

Leonard Nimoy, who played Mr. Spock in the original Star Trek series and movies, is apparently retiring, and hanging up his famous Vulcan ears:

Leonard Nimoy, the actor who has famously portrayed “Star Trek’s” original alien Spock for over 40 years, has announced he’s officially hanging up the pointy Vulcan ears for good.

Nimoy, 79, plans to retire shortly from show business and the “Star Trek” convention circuit, according to the Canadian newspaper Toronto Sun…..

The retirement announcement all but guarantees that an elder, “from-the-future” Spock (at least played by Nimoy) will not make an appearance in the next “Star Trek” movie.

“I want to get off the stage. Also, I don’t think it would be fair to Zachary Quinto,” Nimoy told the Toronto Sun, referring to the actor who portrays young Spock in the new Trek film. “He’s a terrific actor, he looks the part, and it’s time to give him some space. And I’m very flattered the character will continue.”

As Nimoy notes, the character of Spock may continue to be played by Zachary Quinto in the new series of Star Trek movies that began with last year’s film, which I reviewed (mostly negatively) here.

I have many reservations about Star Trek, such as its crude treatment of socialism (see also here). Still, the original Trek and several of the TV series that followed (especially my personal favorite, Deep Space 9), used science fiction to address important issues in an interesting way that could appeal to mainstream audiences as well as genre fans. The Spock character, as played by Nimoy, was often at the center of that.

Unfortunately, the revamped version of the franchise seems intent on squandering that legacy. Though in fairness the last several movies in the “old” line were generally awful, so some sort of reconstruction (or termination) was probably necessary.

In any event, Spock will surely be missed by science fiction fans everywhere. I wish Mr. Nimoy a happy retirement.

Jewish Studies Professor Michael Weingrad’s essay “Why there is No Jewish Narnia,” touched off a massive debate over the validity of his claim that there is no Jewish fantasy literature, including my own humble critique. Abigail Nussbaum has posted a helpful roundup of the debate. Weingrad himself responds to his critics here.

Like Nussbaum, I found the response unpersuasive. Indeed, it further undermines Weingrad’s case by pointing out that Guy Gavriel Kay – one of the most prominent fantasy writers of the last 35 years – is actually Jewish (which I didn’t know before). As Weingrad notes, Kay is not only a Jewish fantasy writer, but one who has actually incorporated the issues of Jews and anti-Semitism into his novels, especially The Lions of Al Rassan. Weingrad tries to distinguish Kay’s later work on the grounds that it is “historic fantasy” and not “high fantasy.” But virtually all of Kay’s “historic fantasy” works include such classic high fantasy elements as the use of magic, heroic quests, and a quasi-medieval setting. “High fantasy” and “historic fantasy” are not mutually exclusive categories. Indeed, J.R.R. Tolkien’s work (which Weingrad points to as the prototypical example of high fantasy) incorporated many historic elements from his research on early medieval languages and society.

Weingrad also admits that he “cannot state with any detailed precision what a Jewish alternative [to standard fantasy] would look like.” Without a clear definition of what he means by Jewish fantasy, it is always possible to manipulate the concept in such a way that none of the many fantasy works written by Jewish writers or addressing Jewish-related themes qualifies. Alternatively, Weingrad could define Jewish fantasy extremely narrowly, so as to exclude all of these works. But barring such gambits, I think it’s pretty obvious that there is a great deal of important fantasy literature by Jewish writers, and a smaller but still significant number of fantasy novels that directly address issues related to the Jewish experience. When one recalls that Jews are only a tiny fraction of the population of Britain and the United States (the two nations that produce most modern fantasy literature), there is no underrepresentation of Jews in this field to be explained.

Students at the University of Mississippi have started a campaign to replace the school’s longtime mascot Colonel Reb with Admiral Ackbar, leader of the Rebel Fleet in Star Wars. Colonel Reb was retired in 2003 because “coaches and athletic boosters concluded that C. Reb and other symbols of the Confederacy hurt the school’s recruiting prospects.” The movement has attracted national attention, and Lucasfilm says that they may license the use of Ackbar by Ole Miss.

Both science fiction fans and Confederacy-haters have reason to cheer this development. Given my view of the Confederacy (see here and here, and here), I fall into both categories. From a competitive standpoint, it also makes good sense to replace a mascot who represented an evil cause that failed with one that symbolizes a just cause that won. Winners make better mascots than losers.

The Ole Miss Rebel Alliance – the student group promoting Ackbar as the new mascot – originally did so as a joke. But they also acted for the more serious purpose of preventing the reinstatement of Colonel Reb:

Six days before the Ole Miss student body was called to vote on whether to accept the responsibility of developing a new mascot, four students came together to fill a void for those who were ready to lay Colonel Reb to rest.

Drawing comedic inspiration from a squid-like Star Wars character, Tyler Craft, Matthew Henry, Joseph Katool and Ben McMurtray launched the Ole Miss Rebel Alliance and unwittingly introduced Admiral Ackbar as a potential mascot candidate….

A Web site was created featuring the now-viral image of Ackbar dressed in a red hat and jacket similar to that of his predecessor….

“We started this as sort of a fun thing,” Craft said. “We did it with satire, fun and a little comedy. Admiral Ackbar represented the people who wanted to move forward, which apparently was a good portion of the campus.”

Ole Miss students got the joke, and through parody emerged another contender in the battle for a new mascot.

On one side stood the Colonel Reb Foundation, developed shortly after the former mascot’s removal in 2003, who launched a widespread advertising campaign in the days leading up to the vote encouraging students to oppose creating a new mascot.

McMurtray said it was obvious there was no organization pushing for the ‘yes’ vote.

“No independent organizations really voiced their support (for a new mascot), so that was our goal – to try to be that organization,” McMurtray said.

Those looking for an alternative to the colonel’s salvation suddenly had a common, albeit laughable, rallying point.

And rally they did. More than 2,500 students voted in favor of finalizing the university’s seven-year disassociation with its former mascot.

Suddenly, four jokesters found themselves at the forefront of not only a campus movement, but a national media blitz – one that removed focus from a university clinging to images representative of its divisive past to one where students were ready to move on.

Since the 1960s, scholars have spoken of the rise of a New South that is beginning to transcend the region’s legacy of slavery and segregation. The state of Mississippi was once one of the most segregationist of all, and the University of Mississippi was famously resistant to the admission of black students. This change is a small but interesting indication of the broader changes in the South over the last two generations. The legacy of segregation and the Myth of the Lost Cause certainly aren’t completely dead. But even at Ole Miss they are on their way out.

Jewish Studies professor Michael Weingrad claims that Jewish fantasy writers are “strikingly rare” and tries to explain their absence. Farah Mendlesohn, a prominent academic scholar of fantasy literature, points out that there are in fact quite a few prominent Jewish fantasy writers. Israeli science fiction and fantasy critic Abigail Nussbaum has other objections to Weingrad’s analysis. When you consider that most modern fantasy literature is produced in Britain and the United States and that Jews are less than 2% of the US population and a smaller proportion in Britain, it’s highly probable that Jewish authors are far more than proportionally represented among fantasy writers.

Weingrad may be on firmer ground with the more limited claim that there are no Jewish fantasy writers as important as J.R.R. Tolkien and C.S. Lewis, by far the two most influential writers in the field. However, given the small proportion of Jews in the population, it’s quite possible that the two most influential writers in any given literary genre could turn out to be non-Jews just by chance alone – even if Jewish writers were no less attracted to that genre then gentiles. There are no European Jewish writers of traditional realistic novels who are as influential as Tolstoy and Dostoyevsky. In English-language literature, there are no conventional Jewish novelists as influential as Jane Austen and Mark Twain. But it would be a mistake to therefore conclude that prominent Jewish novelists are “strikingly rare.” To the contrary, it’s obvious that there are many more prominent Jewish novelists than one would predict based on their percentage of the populations of Europe and the US.

Finally, Weingrad also argues that there are few if any Jewish fantasy novels that are based on Jewish religious tradition in the same way that C.S. Lewis’ work is based on Christianity. As Nussbaum points out, this claim is probably true. The simple explanation here is that most Jewish fantasy writers are secular in orientation. That’s also true of most gentile fantasy writers of the last several decades. Even among gentile fantasy writers, Lewis was somewhat unusual in using his fantasy novels to promote traditional religious views. There are probably more prominent fantasy writers who have used their work to attack traditional Christianity (Marion Zimmer Bradley and Phillip Pullman are two of the best-known examples) than defend it.

UPDATE: Commenters have helpfully pointed out this list of prominent Jewish science fiction and fantasy writers.

This article has an interesting psychiatric diagnosis of Gollum’s possible mental illness [HT: Eric Crampton]:

Sméagol (Gollum) is a single, 587 year old, hobbit-like male of no fixed abode. He has presented with antisocial behaviour, increasing aggression, and preoccupation with the “one ring.”… …His forensic history consists of Deagol’s murder and the attempted murder of Samwise Gamgee. He has no history of substance misuse, although like many young hobbits he smoked “pipe weed” in adolescence….

Several differential diagnoses need to be considered, and we should exclude organic causes for his symptoms. A space occupying lesion such as a brain tumour is unlikely as his symptoms are long standing. Gollum’s diet is extremely limited, consisting only of raw fish. Vitamin B-12 deficiency may cause irritability, delusions, and paranoia. His reduced appetite and loss of hair and weight may be associated with iron deficiency anaemia. He is hypervigilant and does not seem to need much sleep. This, accompanied by his bulging eyes and weight loss, suggests hyperthyroidism. Gollum’s dislike of sunlight may be due to the photosensitivity of porphyria. Attacks may be induced by starvation and accompanied by paranoid psychosis….

Gollum displays pervasive maladaptive behaviour that has been present since childhood with a persistent disease course. His odd interests and spiteful behaviour have led to difficulty in forming friendships and have caused distress to others. He fulfils seven of the nine criteria for schizoid personality disorder (ICD F60.1), and, if we must label Gollum’s problems, we believe that this is the most likely diagnosis.

Certainly a plausible diagnosis. However, as a law and economics scholar I can’t resist pointing out the possibility that Gollum was acting rationally all along, given his somewhat unusual preferences. After all, getting and keeping the Ring of Power was Gollum’s only way to achieve a measure of wealth, power, and a long lifespan far beyond that of other Hobbits. He successfully kept possession of the ring for decades, and nearly recovered it in The Lord of the Rings, despite facing huge obstacles.

If we assume that Gollum valued long life, power, and wealth above companionship, socializing, and conventional morality, his actions seem perfectly rational. True, the Ring didn’t ultimately make him wealthy. But it was reasonable to assume that it might when he first stole it. And it did give him a much longer life and greater power than he would have had otherwise. As for his supposed multiple personality disorder, perhaps inventing a second personality was a good way to pass the time during his long years of living alone. When he met Sam and Frodo, the supposed second personality was a good excuse for evading responsibility for his deceptions and efforts to steal back the Ring. If not for the alternate personality, Frodo might have let Sam kill Gollum or drive him away. Finally, Gollum’s theft of the ring and his obsessive guarding of it afterwards was arguably a rational response to the extremely poor enforcement of property rights in Middle Earth.

Maybe Gollum is an example of Bryan Caplan’s thesis that many seemingly insane people are not irrational, but merely have unusual preferences. In the same article, Caplan also explains the rationality of Denethor, another Tolkien character sometimes diagnosed as insane.

In the comments to the psychiatry article, Gollum himself takes a potshot at his psychiatric critics:

Nasty psychiatrissstss! Hates them, my precious! They locks uss up in padded cell! They makes uss look at inkblotsss! Tricksy, sly inkblotsss! Nasty Elvish pills burnsss our throat!
…
Yesss We Hatesss themsss Evil oness yess my preciousss we hatess themsss

But They Helpsss us!

No they hurtsss usss, hurtsss usss sore!

In a recent LA Times op ed, David Boaz of the Cato Institute joins economist David Henderson in interpreting the blockbuster film Avatar as a defense of property rights:

Conservatives have been very critical of the Golden Globe-winning film “Avatar” for its mystical melange of trite leftist themes. But what they have missed is that the essential conflict in the story is a battle over property rights….

But conservative critics are missing the conflict at the heart of the movie. It’s quite possible that [director] Cameron missed it too.

The earthlings have come to Pandora to obtain unobtainium. In theory, it’s not a military mission, it’s just the RDA Corp. with a military bigger than most countries. The Na’vi call them the Sky People.

To get the unobtainium, RDA is willing to relocate the natives, who live on top of the richest deposit. But alas, that land is sacred to the Na’vi, who worship the goddess Eywa, so they’re not moving. When the visitors realize that, they move in with tanks, bulldozers and giant military robots, laying waste to a sacred tree and any Na’vi who don’t move fast enough.

Conservatives see this as anti-American, anti-military and anti-corporate or anti-capitalist. But they’re just reacting to the leftist ethos of the film.

They fail to see what’s really happening. People have traveled to Pandora to take something that belongs to the Na’vi: their land and the minerals under it. That’s a stark violation of property rights, the foundation of the free market and indeed of civilization.

See also David’s follow-up post here.

As I explained in this post, I’m skeptical that this message was either intended by the filmmakers or perceived by most American viewers. On the other hand, in the same post I also noted that that was precisely how it was received by many Chinese, who saw the film as an allegory of their own government’s large-scale violation of property rights. Since then, the Chinese government has forced most theaters to stop showing Avatar, which suggests that its censors interpret the film that way too.

CONFLICT OF INTEREST WATCH: I am a Cato Institute adjunct scholar, which is an unpaid position.

Instead of a Stendhal post this week – I missed Saturday lost in the DC snow – and further to my Foundation post below, which has garnered some very interesting comments … do we have any fans of James Blish’s Cities in Flight novels?

As an exercise in future history social theory, I actually think they are deeper than the Foundation novels; certainly I found the characters more psychologically interesting and in many respects, the interplay of society with ideas from science deeper, too.  I used to think – and say below – that they are emotionally rather bleak, pessimistic.  I think today I would say it is not so much pessimism as a very adult sensibility of mortality.  The original Foundation series is aimed at cleverness in holding out on the ending; Blish was a surprisingly psychological writer, particularly for that era in science fiction.

Here is what I wrote about the series on a family blog in 2005, reading them with my daughter: Continue reading ‘Cities in Flight’ »

Peggy Noonan notes in her weekend column that President Obama’s SOTU address worked in a name for the new program – in the tradition of the “New Deal” or Kennedy’s “New Frontier.  For the Obama administration, it is the New Foundation.  She is skeptical:

They’ve chosen a phrase for the president’s program. They call it the “New Foundation.” They sneaked it in rather tentatively, probably not sure it would take off. It won’t. Such labels work when they clearly capture something that is already clear. “The New Deal” captured FDR’s historic shift to an increased governmental presence in individual American lives. It was a new deal. “The New Frontier”—we are a young and vibrant nation still, and adventures await us in space and elsewhere. It was a mood, not a program, but a mood well captured.

“The New Foundation” is solid and workmanlike, but it attempts to put form and order to a governing philosophy that is still too herky-jerky to be summed up.

I am equally skeptical, but my interest here is a different one.  We here at Volokh Conspiracy tend to be well aware of the Foundation novels – only too aware, possibly.  But I recall reading here or somewhere that Paul Krugman and several other leading economic and legal academic-policymakers had come to their professions wanting to be … Hari Seldon.  Deeply attracted to the idea of a mathematically-based psychohistory.  Certainly includes me.  I am the son of a physical scientist; I spent my early years playing with dangerous chemicals in my father’s lab.  But from the time I read the Foundation books, I was lost to physical sciences – I wanted the vision of a science of mass behavior.

This is not a liberal versus conservative thing although, it bears noting, nothing about Asimov’s Foundation vision suggested anything very liberal or libertarian.  It was all galactic social engineering.  At least so far as I could ever tell.  However, it does lead me to wonder whether any obscure, deeply buried, unconscious Jungian archtype of the Foundation entered somehow into this New Foundation framing.  This is an administration of academics, in love with design and social engineering, not so much the execution and carry-through part.  Yeah, yeah, the social engineering is supposed to be all nudgy and liberal paternalism, not coercive and bad.  It’s an administration of New Class elites especially in love with its peculiar combination of disinterested technocracy married to the most aggressive ideological remake of, well, the foundations of American society in a long time, and almost entirely from the top down.  But in that case, who is the Hari Seldon of this New Foundation?  (Alert commenter says, more important … “Who is the Mule?”)

Well, at least the SOTU catchphrase was not … Second Foundation!   Although, for all we know, it might have started out, before the rewrite as … Foundation and Empire.  I don’t have one of those clever poll apps, so let me  just ask our readers:

If you had to pick a catch phrase among the following that most accurately described the administration and its program, which of the following would it be?

• New Foundation,
• Foundation,
• Foundation and Empire,
• Second Foundation
• Or some other Foundation series related theme.  Please try to keep ideas for names within the Foundation universe, or anyway no broader than Asimov era “classic sci fi.”

Update:  An alert commenter observes that although the term New Foundation appeared in 2009 in the administration’s issue framing, sufficient to spark a NYT article on it, the term doesn’t seem to actually appear in SOTU, at least on my quick scan.  Let me know in the comments if I’m wrong  Presumably this is why Noonan phrases it slightly carefully, so as to not say that it did.  Anyway, my basic point is the same.

Update 2:  Thanks, Glenn, for the Instalanche!  It’s a pretty long list of folks in important positions, at least of a certain generation, who are Foundation fans – and some, including my daughter, of the next.  Glenn says …  ”I’ll note that both Newt Gingrich and Osama bin Laden are supposed to be Foundation fans, for whatever that’s worth . . . .”

In response to my post on the 7th Circuit decision upholding a Wisconsin prison rule forbidding inmates to play Dungeons and Dragons, Joe Carter of First Things speculates about the kinds of D&D-inspired crime that the prison authorities might be worried about:

What crime could they have committed by acting out a D&D storyline? Did they use a quarterstaff to club a chaotic good druid and steal his cloak of invisibility? Because I could definitely see why you wouldn’t want that sort of behavior going on in Folsom Prison.

Carter writes that he played D&D during his “misspent youth.” He obviously didn’t misspend enough of it, however. Otherwise, he might have known that Druids are not allowed to be chaotic good. They must be of “true neutral” alignment (or some other alignment with a neutral dimension in later, more permissive, editions of the game). If a druid became chaotic good, he would immediately lose his druidic status. Thus, we don’t need to worry about prison inmates killing chaotic good druids, because there isn’t any such thing.

On the other hand, prison authorities might have noticed that D&D has a “thief” character class, and that the skills of D&D thieves include pickpocketing, backstabbing, picking locks, and disarming traps. Perhaps they were afraid that inmates might learn these skills from playing the game. If so, I would like to set their minds at ease. I played D&D for years in junior high and high school, and one of my most powerful characters was a 14th level thief. Yet I never learned how to pick even the simplest lock myself. D&D characters’ skills aren’t transferable to their players, which is really a terrible shame. There are times when my longtime favorite “flame strike” spell could really come in handy.

In a decision issued today (here is an alternate link to the decision), the 7th Circuit Court of Appeals has upheld a Wisconsin prison’s rule forbidding inmates to play Dungeons & Dragons or possess D&D publications and materials [HT: Josh Blackman].

The prison’s rationale for the ban is that playing D&D might stimulate “gang activity” by inmates. But the government conceded that there is no evidence that Dungeons and Dragons actually had stimulated gang activity in the past, either in this prison or elsewhere. The only evidence for the supposedly harmful effects of Dungeons and Dragons were a few cases from other states where playing the game supposedly led inmates to indulge in “escapism” and become divorced from reality, one case where two non-inmates committed a crime in which they “acted out” a D&D story-line, and one where a longtime D&D player (not an inmate) committed suicide. Obviously, almost any hobby or reading material might lead people to become divorced from reality, or in rare cases commit suicide. And disturbed individuals could potentially “act out” a crime based on a scenario in almost any film or literary work. Should prisons ban The Count of Monte Cristo on the grounds that it might encourage escape attempts? Moreover, the “escapism” rationale conflicts with the gang argument. People who become engrossed in escapism and retreat from society are presumably less likely to become active gang members.

That said, the Seventh Circuit decision may well be legally correct. It is based on the highly deferential standard under which most prison regulations are to be upheld against constitutional challenge so long as they are “rationally related” to some legitimate goal of prison administration. And, as lawyers know, when courts apply such a “rational basis” test, that usually means that almost anything goes. The test is mandated by Supreme Court precedent, and the Seventh Circuit judges had little choice but to follow it.

UPDATE: I should perhaps mention that the court also cited statements by a “gang expert” who argued that playing D&D might stimulate gang activity because Dungeons and Dragons has a structure similar to a gang:

The sole evidence the prison officials have submitted on this point [the connection between D&D and gangs] is the affidavit of Captain Muraski, the gang specialist. Muraski testified that Waupun’s prohibition on role-playing and fantasy games was intended to serve two purposes. The first aim Muraski cited was the maintenanceof prison security. He explained that the policy was intended to promote prison security because cooperative games can mimic the organization of gangs and lead to the actual development thereof. Muraski elaborated that during D&D games, one player is denoted the “Dungeon Master.” The Dungeon Master is tasked with giving directions to other players, which Muraski testified mimics the organization of a gang.

This argument is, I think, too weak to bother refuting – even if it is just barely compelling enough to pass muster under the rational basis test. By this “reasoning,” you could ban the “cooperative game” of football because “during football games, one player is denoted the ‘quarterback.’ The quarterback is tasked with giving directions to other players.”

Most commentators have interpreted the movie Avatar as having an anti-capitalist message. Libertarian economist David Henderson, however, claims that it is actually a defense of property rights. Though I must reserve judgement until I see the movie, I am skeptical that Henderson’s interpretation is either the message intended by the producers or the one most American viewers come away with. However, it’s interesting that Henderson’s interpretation is exactly how the film was perceived by many in China, where the government has forcibly expelled millions from their homes in recent years, in order to make way for various development projects [HT: one of Henderson's commenters here]:

BEIJING: The bull-dozers await at the gates. An evil corporation sends its guards, using every possible threat to move the residents from their land. But all resistance is futile. The people watch in horror, as their homes get torn down to rubble and they are forced to relocate.

This is a not-so-unfamiliar storyline in China where forced land acquisitions by influential real estate companies are rarely away from the headlines. Here, home demolitions are arguably the most controversial of social issues, and widely regarded as the biggest cause of social unrest.

This also happens to be the plotline of James Cameron’s epic blockbuster film ‘Avatar,’ which opened in China last week and has seemingly taken the country by storm.

A week on after its January 4 release, the show is set to break all records at the Chinese box-office….

[M]any film critics and bloggers have also been struck by the close resonance the film’s plotline has had for many cinema-goers here.

“China’s demolition crews must go sue Old [James] Cameron, sue him for piracy/copyright infringement!,” one blogger wrote at the website Tianya.com.

At least a dozen movie-goers The Hindu interviewed after one screening in Beijing’s Sanlitun district said they were moved by the story, particularly its close parallels to the land conflicts that are common in many of China’s cities.

The resonance was so deep that some film critics here dismissed the plot-line as “too common.” “Some Chinese movie critics think that while the movie is not bad, parts of the plot were too mundane,” the popular and controversial writer Han Han said. “I completely disagree, because brute-force eviction is unimaginable for audiences in other countries because they think that it can only happen on alien planets. Or in China.”

The film’s release here also happens to coincide with a number of high-profile demolition cases, which have recently stirred debate about land rights….

The only difference between Mr. Cameron’s film and land conflicts in China, cinema-goers said, was the plot’s denouement.

“The humans actually failed to successfully evict and demolish [the aliens]?,” one blogger wrote. “Truly embarrassing. Why didn’t they send China’s chengguan [security guards] there?”

I previously blogged about massive property rights violations in China here and here. As American cases such as Kelo v. City of New London prove, China isn’t the only country where “brute force eviction” is used to drive out homeowners and businesses for the benefit of influential interest groups. Nonetheless, the massive scale of the Chinese abuses dwarfs anything that has happened in the US. And it should also be noted that forcibly displaced Chinese generally get much less in the way of procedural rights and financial compensation than is available to their American counterparts. Today’s China is a vast improvement over the Mao era, when the government didn’t recognize any private property rights at all and slaughtered its people by the millions. But there is a long way to go before most ordinary Chinese truly have secure property rights. Though our own problems aren’t nearly as severe, we need stronger protection for property rights on this side of the Pacific Ocean as well.

Patrick Stewart, the British actor most famous for playing Captain Picard on Star Trek: The Next Generation, has been knighted by Queen Elizabeth II.H He becomes one of the very few people knighted primarily because of his achievements in the science fiction genre (Arthur C. Clarke is the only other case that comes to mind, though I’m sure there must be others I’m forgetting). I know that Stewart was also a successful Shakespearean theater actor, but I highly doubt he would have gotten a knighthood were it not for his role in Star Trek.

While everyone remembers Stewart playing Captain Picard, it is much less widely known that he began his science fiction acting career by playing Gurney Halleck in the 1984 movie version of Dune. Unfortunately, Halleck was a less interesting character in the movie than in the original book by Frank Herbert, so Stewart had only limited scope for his talents in that performance. Moreover, the movie wasn’t especially successful, and probably failed to capture most of the strengths of the book. But perhaps the role did get Stewart started on the path to science fiction stardom. To borrow a term from the novel, maybe the Dune movie was Stewart’s gom jabbar.

Economist Daniel Hamermesh has an entertaining game theoretical analysis of Han Solo’s decision to fight for the rebels against the Empire back in the first Star Wars movie. The analysis is a bit of a joke, but there is a serious point here. And not the one that Hamermesh emphasizes:

In the original Star Wars movie (Episode IV), Luke Skywalker pleads with Han Solo to help the Rebel Alliance battle the Empire, but Han refuses and a disgusted Luke storms off. Chewbacca, being a student of game theory, lays out the payoff bimatrix to Han in their “conversation” [Note by IS: there follows a payoff matrix in which it is clear that the Rebels will maximize their payoff by fighting regardless of what Han does, and that Han, in turn can increase both his payoff and that of the Rebels' if he chooses to fight too]….
Han understands that the Rebels have a dominant strategy of fighting. Knowing that, although he has no dominant strategy, and being the self-centered person he has already shown himself to be, Han realizes he is better off choosing to aid the Rebels and fight. (Fight, Fight) is a Nash equilibrium and also a Pareto optimum….

Hamermesh downplays the real game theoretical reason why it’s rational for Han to fight: His contribution is likely to be decisive to the outcome. After all, he’s got “the fastest ship in the galaxy,” and it can make mincemeat of Imperial tie-fighters (as we already saw earlier in the movie). Hamermesh’s payoff matrix implicitly represents this by positing that if Han fights, he increases his own payoff from 5 to 8, and that of the Rebels from 7 to 10. In truth, however, Han’s contribution might well make the difference between victory and total defeat (as in fact happens). Moreover, the speed of the Millenium Falcon minimizes the risk that Han takes should things go badly. He has a good chance of running away unscathed. I’ll ignore the fact that he also times his arrival at the battle perfectly, such that it’s clear exactly what he has to do to ensure victory at little risk to himself; if it looked like the Rebels were going to lose, he could have just as easily have destroyed Luke’s fighter instead of Vader’s and then claimed he was there to help the Empire all along.

Now the serious part: Consider how different is the situation of most people suffering under oppressive governments from Han Solo’s. If any one of them tries to rebel, it is highly unlikely that their actions will have a decisive impact on the regime’s fate. On the other hand, they, unlike Han, don’t have the Millenium Falcon to escape in. If they defy the government, they will likely be caught and punished. Of course if all or most of them resist at once, they might well overthrow the state. But it is hard to coordinate a mass simultaneous uprising in a repressive regime, and the strong incentive for any individual is to free ride on the efforts of others. Ironically, the more repressive the regime, the more severe the collective action problem involved. That’s why a mass movement to overthrow the totalitarian North Korean government is far less likely than one that overthrows a run of the mill dictatorship that oppresses the people much less.

This point also explains why most repressive regimes that are overthrown fall either because they were taken down by a small clique of insiders (who can make individually decisive contributions because of their privileged positions of power) or by a mass uprising that occurs because the regime itself begins to liberalize and the people begin to think that dissent won’t be punished anywhere near as ruthlessly as before (this is what happened in Eastern Europe and the USSR in 1989-91, as Timur Kuran showed in a brilliant book). Sometimes, as in Iran this year, the people imagine the regime is less committed to repression than it actually is, and their resulting protests are brutally suppressed.

This analysis has many important implications. But I will focus on just one. The next time someone tells you that Soviet-era Russians, Iranians, North Koreans or any other population living under severe oppression actually support their rulers and their policies or are “just getting the government they deserve,” remember how different their situation is from Han Solo’s. And ask yourself what you would do in their place if any act of dissent you undertook was both highly unlikely to make a difference and likely to draw severe punishment such as death or imprisonment. Some courageous dissidents are brave enough to act despite such odds. But it’s understandable if most people aren’t.

That’s not too say that some people don’t genuinely support nasty governments and believe their propaganda. Indoctrination and censorship are often effective. However, the mere absence of an effective rebellion or large-scale dissident movement is not proof that a majority or anything close to one actually supports their rulers. Indeed, the existence of a massive apparatus of repression and censorship is a strong sign that the rulers themselves do not believe they have popular support, and want to make sure that no one can become a potential Han Solo.

UPDATE: This isn’t essential to the analysis. But Han Solo, unlike most potential dissidents in repressive societies, stood to gain purely individual benefits from fighting that he could not get if the regime were defeated without his help. For example, he greatly increased his chances of getting to marry Princess Leia and becoming a high-ranking officer in the Rebel Alliance. In Return of the Jedi, we learn that he has been given the rank of general, which is extremely rapid advancement indeed from his previous position as an impecunious smuggler. Marrying a princess and becoming a general are not likely outcomes for your average potential North Korean or Iranian dissident.

The UN Secretary General … circa 2050, Earth, talking with Kip who, along with Peewee, has just saved the Earth from invading aliens who were using the Moon as a forward base:

“Russell, I heard on your tape that you plan to study engineering – with a view to space.”

“Yes, sir.  I mean, ‘Yes, Mr. Secretary’.”

“Have you considered studying law?  Many young engineers to want to space – not many lawyers.  But the Law goes everywhere.  A man skilled in space law and meta-law would be in a strong position.”

“Why not both?”  suggested Peewee’s Daddy.  ”I deplore this modern overspecialization.”

“That’s an idea,” agreed Mr. van Duivendijk.  ”He could then write his own terms.”

A couple of notes on this classic juvenile sci-fi book by Robert Heinlein from the 1950s, Have Spacesuit Will Travel.  Already proposing joint degrees!  What’s “meta-law” supposed to be, anyway?  Do we like “to space” as a verb?  Does “the Law go everywhere”? Continue reading ‘Space Law and the UN, Retro Edition’ »

Possibly influenced by the recent discovery of real-life Hobbits, Peter Jackson has revealed some details of his upcomingHobbit movie, including the return of Ian McKellen as Gandalf; I think McKellen was quite good in that role in the Lord of the Rings movies. Perhaps there will be a part for co-conspirator Randy Barnett, who has previous experience appearing in sci fi/fantasy roles.