Saturday, January 31, 2004

 
[David Bernstein, 1/31/2004 07:44:20 PM]
Civil RIghts Undermined by Antidiscrimination Laws: From the FoxNews.com, where you can read the whole thing.

Civil Rights Undermined by Antidiscrimination Laws
By David E. Bernstein

This year marks the 40th anniversary of the Civil Rights Act of 1964. The achievements of the civil-rights movement in bringing about a more just and equal society are undoubtedly well worth celebrating. However, these achievements have not come without costs. In particular, it's worth pausing to consider the growing threat more recent and draconian anti-discrimination laws pose to American civil liberties.

While the civil-rights laws of the 1960s were generally sensitive to civil libertarian concerns, contemporary anti-discrimination laws often are not.

 
[Eugene Volokh, 1/31/2004 10:37:27 AM]
From the Borowitz Report:

The Democratic Party ignored the triumph of Senator John Kerry (D-Mass) in the New Hampshire primary last night and instead handed the Democratic nomination for President to the movie blockbuster "The Lord of the Rings: The Return of the King."

The Democratic nomination brings the film?s total number of nominations to twelve, Hollywood insiders said. . . .

According to Democratic pollster Geoffrey Dandridge, electability was the issue that ultimately catapulted the movie blockbuster ahead of Senator Kerry.

"In a head-to-head contest, 'Lord of the Rings' beats Bush in every state but Florida, which is too close to call," Mr. Dandridge said. . . .

"The only way this movie can lose is if Michael Moore endorses it," he said.

Thanks to Michael Klein for the pointer.

 
[David Bernstein, 1/31/2004 08:42:19 AM]
John Edwards, Trial Lawyers, and Cerebral Palsy Cases: An interesting post at Blog 702 on the controversy over whether John Edwards made much of his wealth from bogus malpractice cases involving the representation of children with cerebral palsy. It's obviously foolish to have such complex issues of medical causation being determined before a nonexpert jury in an adversarial process to begin with, and I can't really begrudge Edwards, or any other attorney, who play their appointed roles in the system. It's convenient for civil justice reformers to use wealthy trial lawyers as their public enemy, a good robber barronish foil. And certainly I object when trial lawyers manipulate the political process to their benefit, as they did in many ways during the tobacco litigation. But when they are merely doing their jobs within the system as it exists*, I refuse to demonize them; repeat after me, civil justice reformers: blame the system, not the participants in it.
*For example, current ethical rules for attorneys not only allow but require plaintiffs' attorneys to utilize out of the mainstream expert testimony that is almost certainly wrong, but that is admissible, helpful to the plaintiff's case, and potentially persuasive to the jury.
UPDATE: I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be "junk science." But law professors who specialize in this area have told me that this is indeed the rule in most jurisdictions. I'm pleased to learn from Wally that Arizona has changed the attorney's duty to act "zealously" for his client--the source of this mischief--to a duty to act "honorably."
Also, a reader writes:

If being a plaintiff's lawyer (or defense attorney) consistently required persons to engage in behavior which, though permitted or perhaps even mandated by professional ethics rules, was in their view morally wrong, they should do something else. Indeed, if a person remains in that profession, as Edwards did, it seems to me perfectly fair to assume that he has come to the considered decision that "the system as it exists" is, on the whole, right and proper and, as to discrete elements thereof, to assume that he approves of them if he has not disavowed them and/or is not acting to change them. In such a case, I see no unfairness in begrudging Edwards (or anyone else) if you think they're doing (and profiting from) bad and destructive (albeit currently legal) things, or in demonizing them if you think they're doing really bad and destructive (though currently legal) things, or in praising, exalting or heroicizing them if you think the system as it is is just dandy and they're doing wonderful and productive things.

Well, if it's disqualifying that Edwards spent his adult life litigating questionable cases, being part of a bad and destructive system, what about his most significant competitor? Kerry has spent his adult life as a (drum roll, please) professional politician, without distinguishing himself as one who tried to rise above the system. If the latter isn't disqualifying as being a part of a bad and destructive system, I don't know what is!

 
[David Bernstein, 1/31/2004 08:29:35 AM]
"Laws of Diminishing Civil Liberties": An opinion piece by me in Insight on the News discussing a favorite topic: the clash between antidiscrimination laws and civil liberties.

 
[Juan Non-Volokh, 1/31/2004 07:56:45 AM]
Howard Hangs Out A Shingle: Congratulations and best wishes to How Appealing's Howard Bashman on his new venture. Let me just add the hope -- which I am sure is shared by many in the blawgosphere -- that running his own firm doesn't detract from his most excellent blog.

 
[David Post, 1/31/2004 07:00:11 AM]
Funniest Line in the NY Times This Year: From Thomas Friedman's column this past Thursday:

     Someone asks Mikhail Gorbachev how — in one word — he would sum up the Soviet economy. "Good," he replies. In two words? "Not good."

 
[Tyler Cowen, 1/31/2004 04:59:45 AM]
Can you fake being crazy?

"In 1972, David Rosenhan, a newly minted psychologist with a joint degree in law, called eight friends and said something like, "Are you busy next month? Would you have time to fake your way into a mental hospital and see what happens?"
...First, there was training. Rosenhan instructed his confederates very, very carefully. Five days prior to the chosen date, they were to stop shaving, showering and brushing their teeth. And then they were, on the appointed date, to disperse to different parts of the country, east to west, and present themselves at various psychiatric emergency rooms. Some of the hospitals Rosenhan had chosen were posh and built of white brick; others were state-run gigs with urine-scented corridors and graffiti-scratched walls. The pseudopatients were to present themselves and say words along these lines: "I am hearing a voice. It is saying thud."

The individuals were admitted and then for the most part simply ignored, even though they then proclaimed their sanity and behaved normally in every way. Now here is my favorite part:

The strange thing was, the other patients seemed to know that Rosenhan was normal, even while the doctors did not. One young man, coming up to Rosenhan in the dayroom, said "You're not crazy. You're a journalist or a professor." Another said, "You're checking up on the hospital."

Thanks to Chris at CrookedTimber.org for the link and his continued excellent blogging. Here is the original story.

Friday, January 30, 2004

 
[Eugene Volokh, 1/30/2004 01:25:08 PM]
Risk of bribery as a factor in deciding about constitutional structure: The Framers, by the way, were apparently quite aware of the risk that bribes can undermine institutional decisionmaking, and saw the need to craft institutions in part to minimize the risk of such bribery. See, e.g., Federalist Nos. 22, 43, 57, 62, 66, 68, and 83. The analysis is instructive, I think, in deciding to what extent we should voluntarily submit our actions to the judgment of a Security Council where any other member can veto our actions.

 
[Eugene Volokh, 1/30/2004 01:12:18 PM]
"Political speech": My quote earlier today of Irving Kristol's argument that advocacy of homosexuality should be constitutionally unprotected led me to look up again his entire comment. Here is the material most relevant to the free speech question (again from Sex and God in American Politics; What Conservatives Really Think, Policy Review (Heritage), Summer 1984):

[T]hose local communities that want to restrict public homosexuality or the advocacy of homosexuality should in my opinion be free to do so. I don't think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does. The First Amendment was intended to apply to political speech, not to all forms of "expression," as some people now seem to think.

     This, I think, is an excellent example of the weakness with some (though not all) of the "First Amendment only protects political speech, so it doesn't protect X" arguments. I agree that the First Amendment wasn't intended to apply to all forms of expression. (Libel, for instance, was pretty broadly understood to be outside the scope of the freedom of speech, though it wasn't clear how much power Congress, as opposed to other institutions, had to regulate it.) But even if the First Amendment is limited to protecting political speech, why doesn't advocacy of homosexuality qualify?

     Clearly advocacy of government action regarding homosexuality -- decriminalize it, ban sexual orientation discrimination, and the like -- is political speech. But how can people sensibly debate such government action without also figuring out whether homosexuality is good, moral, healthy, satisfying for its practitioners, and so on? And to figure that out, we naturally need to hear arguments that advocate homosexuality, in the sense of saying that it's a proper, beneficial, satisfying, moral lifestyle, as well as arguments that oppose homosexuality, in the sense of saying that it's an improper, harmful, unhappiness-inducing, immoral lifestyle.

     So even if one takes a "political speech only" view of the First Amendment, which is that the First Amendment protects only speech that contributes to the voter education needed for democratic self-government, advocacy of any behavior that might potentially be the subject of government regulation (which is to say, advocacy of any behavior) must be constitutionally protected, precisely because it is necessary for voters in a democracy to make up their minds about the behavior.

     (Even setting all that aside, the First Amendment surely protects speech on religious subjects as well as political subjects, so surely the defense and advocacy of homosexuality on religious grounds would be constitutionally protected on those grounds as well.)

 
[David Bernstein, 1/30/2004 12:19:27 PM]
My Vote? Roger Simon urges bloggers to reveal who they will vote for in the upcoming election. I may vote for the Libertarian candidate, to protest the fact that government is growing out of control and neither party cares. I may vote for Bush, because despite his disastrous domestic policy, and a few questionable judicial nominations, I'd rather have him pick the next Supreme Court Justice than any Democrat currently running, and I think his actions in the War on Terror are generally solid. Or I may do what I usually do on Election Day, which is think about voting, then think about having to stand on line to vote, and think about how irritating it is that the [edit: as per overwhelming reader suggestion, "rationally ignorant individual who may be perfectly well-informed and competent in other areas of life", but I originally has a less complimentary description] in line in front or in back of me who doesn't even know who the Vice-President is [update: my colleague Ilya Somin has done some great work detailing voters' incredible political ignorance] has a vote that counts exactly as much as my vote counts, (which, though it doesn't actually make me feel any better, is effectively not at all), and just stay home.
UPDATE: Yes, I'm in a cranky libertarian mood this week, which sometimes happens during election years, when I am overexposed to the complete dreckiness of politics and politicians. How can anyone observe the venality, dishonesty, demogagoguery, on both sides ... OK, I'll try to behave.

 
[Eugene Volokh, 1/30/2004 12:16:42 PM]
Why is multilateral support important? During the run-up to Gulf War II, many people argued that we shouldn't go to war without multilateral support -- support from a broad range of foreign countries, either directly or as translated into support from the Security Council.

     There are, I think, three possible reasons for this position. One is purely pragmatic: if we don't have much foreign support, the theory goes, our task will be too hard, either because we won't have material help, or because the lack of foreign support will undermine our credibility with the Iraqis or their neighbors. A second relates to legitimacy: certain kinds of actions, the theory goes, are only morally or legally legitimate if we have support from certain foreign bodies, or perhaps from a certain range of foreign countries. A third relates to foreign support being probative of the need for the war: if we don't fully trust our government's judgment, then we might consider other countries' judgment as evidence of whether the war is practically and morally justified.

     Naturally, each of these possible reasons has its own supporting arguments and its own counterarguments, and the strength of each argument may vary from situation to situation. (Most obviously, the pragmatic argument turns on just how much we think we'll need the foreign help.)

     I mention this because the recent revelations that some prominent foreign figures and organizations (most notably, in Russia and Indonesia, though apparently in some measure in France as well) were bribed by the Iraqis -- if these revelations are accurate, of course -- substantially undermine the forcefulness of second and the third reasons. If indeed foreign opposition, or a blocking vote in the Security Council, may often be influenced by bribes (as seems quite plausible, if the revelations are indeed accurate), then it becomes much less plausible to argue that it's inherently illegitimate to go to war without Security Council support. Likewise, while we might take disinterested advice as evidence of what's the right thing to do, advice that we think might likely be influenced by bribes doesn't seem terribly probative.

     None of this, of course, is dispositive: There's no evidence, for instance, that German opposition was swayed by this, and as I understand it the evidence with regard to the French is quite weak, since the people being bribed weren't that influential. On the other hand, there are of course other factors that undermine the probativeness / legitimacy reasons, such as the possibility that foreign action is influenced by their own national self-interest or hostility (quite legitimate on its own, but not much of an argument for influencing our actions). But the revelations of these sorts of bribes should, I think, lead to some skepticism about the probativeness / legitimacy arguments for insisting on multilateral support.

 
[Sasha Volokh, 1/30/2004 10:40:50 AM]
Holocaust denial: I think the strongest case against Mel Gibson (based on the evidence below) is (as David suggested) that Mel Gibson's phrasing was ambiguous and that he knows better, having been exposed to actual Holocaust denial. Since this is still circumstantial evidence, though, I'm inclined to give him the benefit of the doubt so far. There's nothing I strictly speaking disagree with in what he said, and to the extent he's trying to place the Holocaust in the context of other large atrocities (including other victims of World War II and victims of Stalinist terror), I don't mind, as I'm not into the moral uniqueness of the Holocaust. I was going to go into greater detail about this, but I think Clayton Cramer has already put it well in his last paragraph.

 
[Eugene Volokh, 1/30/2004 10:04:33 AM]
The latest anti-Semitic screed on the Palestinian Authority Web site: Dejafoo has the details, and a pointer. "Whereas the murder of Christ by the leadership of Israel formed the basis around which the religion of Christianity would be formed, now the murder of the descendants of those leaders at the hands of those professing to be Christians has supplanted what was the religion which helped to create Western Civilization." Lovely. See, we not only killed Jesus, but we're also supplanting Christianity. And there's more, much more. Brought to you courtesy of those peace-loving anti-racist people at the Palestinian Authority.

 
[Eugene Volokh, 1/30/2004 09:51:40 AM]
More attempts to suppress dissent in Europe:

One of Belgium's leading civil rights groups has announced it intends to sue Belgian cardinal Gustaaf Joos for violating the country's anti-discrimination laws.

Joos said in a recent magazine interview that he believed that 90-95 percent of gay people were "sexual perverts" and that the remainder needed help.

The Centre for Equal Opportunities and the Fight Against Racism (CEOFAR), which receives government funding, said that it had decided to sue the cardinal because it found his views "unacceptable".

The organisation argued that in its opinion, such statements were illegal in Belgium, which has tough anti-discrimination laws. . . .

     I disagree with the cardinal's views, and with the way he expresses those views. But what conduct is proper and what is improper, what is moral and what is immoral, are precisely the subjects that a free people should be freely debating.

     Not long ago, that homosexuality was a perversion was the orthodox view. Free speech changed that; the gay rights movement, like the racial and sexual equality movements, was a triumph of free speech and public persuasion. Now some people in that movement are trying to restrict others' free speech, to lock in their gains and to silence dissenters from the new orthodoxy. Understandable, as a matter of human politics and psychology -- but still improper.

     In 1984, Irving Kristol said, "I don't think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does." (Quoted in Sex and God in American Politics; What Conservatives Really Think, Pol'y Rev., Summer 1984, at 12, 24.) That was wrong then (and I hope he no longer believes it). Its flip side is wrong now.

     (Thanks to Clayton Cramer for the pointer.)

 
[Eugene Volokh, 1/30/2004 09:28:09 AM]
Illegal to let your pets suffer mild discomfort: Washington state law criminally punishes people who "knowingly, recklessly, or with criminal negligence" "[f]ail[] to provide [an animal in their care] with necessary food, water, shelter, rest, sanitation, ventilation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result of the failure." Hey, I have two dogs; I certainly oppose letting them suffer "unnecessary or unjustifiable physical pain." However, it turns out that Washington residents can be criminally prosecuted not just for letting pets suffer obvious serious pain but even for -- as a Washington Court of Appeals explicitly held -- allowing them to suffer even "mild discomfort." State v. Zawistowski, 2004 WL 57281 (Wash. App. Jan. 13).

     So if you delay a visit to the vet to the point that the animal suffers even mild discomfort, or if you pen up your pets longer than strictly necessary and justifiable, to the point that they suffer mild discomfort, or if you put them on a diet that causes mild discomfort, and that a jury finds to be unnecessary or unjustifiable (and the jury concludes that you were criminally negligent in thinking that it was necessary or justifiable), you're a criminal.

     Thanks to Robert Bidinotto for the initial pointer, though of course I personally checked the Washington case involved.

 
[Eugene Volokh, 1/30/2004 09:14:42 AM]
Drama competitions and flag desecration: Several readers have e-mailed me about this Florida Sun-Sentinel report:

Archbishop McCarthy High students [were disqualified] from a [drama] competition early this week for their performance of The Children's Story. In the play, first published in 1963 by Shogun author James Clavell, third-graders in a classroom in a United States that has been defeated by a powerful enemy, presumably Communist, cut the flag into pieces. Their new teacher tells them if the flag is so good, everyone should get a piece and tells them to hand out the shreds. It's a message about the dangers of mindless political indoctrination.

"The play is actually pro-American," said Erin Fragetta, 15, a sophomore at the southwest Broward County school who worked on the production. "It was intended to be an anti-communist message, and the judges just turned it around on us." . . .

McCarthy was competing against 10 troupes from Broward public and private high schools at the Florida State Thespians District 13 one-act play competition at Nova High on Monday and Tuesday.

After receiving complaints about the flag cutting, co-chairman Melody Wicht, who teaches drama at Pembroke Pines Charter High, disqualified the McCarthy team.

"Some people came to me after the play and complained about the performance," Wicht said. "So I looked into it."

Wicht said she based her decision on Florida Statute 876.52, which says "Whoever publicly mutilates, defaces or tramples with intent to insult any flag . . . of the United States shall be guilty of a misdemeanor of the first degree."

"I tried to stay as objective as possible as they performed," Wicht said. "My problem was that they took an American flag off the flagpole and cut it into pieces. They were disqualified based on Florida law."

Jim Usher, from American Heritage School in Plantation, one of the three judges, said while he was "grossly offended" by the flag cutting, he didn't base his rating of the play on it. He gave the play a fair rating -- the lowest -- based on overall performance, he said. . . .

     The disqualification seems pretty silly: First, the Florida statute is unconstitutional, given the U.S. Supreme Court's decisions in Texas v. Johnson and U.S. v. Eichman. Second, I don't even see why people should be "grossly offended" here, any more than they should be "grossly offended" by, say, a flag-burning in a play about flag-burning. It reminds me of the Monty-Python-esque complaint about the University of Virginia employee using the word "nigger" as an example in trying to condemn racism.

     At the same time, I don't think that the disqualification is unconstitutional.
Judgments about which play gets an award necessarily involve decisions based in part on the content of the play, and in part even on its viewpoint. I doubt, for instance, that a play on the theme "Why blacks are inferior to whites" would or should get an award in a drama competition, no matter how well-acted it is. The quality of a performance turns in part on the quality of the message that the performance expresses; and while it might at times be petty, intolerant, or unduly partisan of the judges to reject certain messages, I think they are properly entitled to reject other messages as being beyond the pale. And while I don't think that the judges should have rejected the play based on this particular message, I think that drawing this line is a matter for the judges in the competition -- and for the public, in commenting on the judges' decision -- and not for the other kinds of judges that sit in courtrooms.

     One might be able to argue the contrary, based on NEA v. Finley's suggestion that even in competitive, quality-based government decisions about art, "invidious" viewpoint discrimination is still impermissible. It's hard to tell, since the Court mentioned this quite tangentially, and never defined what distinguishes potentially impermissible "invidious" viewpoint discrimination from permissible viewpoint discrimination. (As with drama competitions, NEA selections also necessarily discriminate in some measure based on viewpoint -- I don't think NEA panels, for instance, are constitutionally barred from preferring art that they see as containing an uplifting message over art that they see as containing a degrading message.) And it's also not clear whether the Finley reasoning carries over from funding decision to awards decisions, where a government agency (such as a school district) endorses some production as the best of a group, and whether it carries over to K-12 schooling. Finley has, unfortunately, made the law something of a mush.

     But I think that, even given Finley, the better view is that such competitions are free to apply any viewpoint discriminations that they want (perhaps setting aside discrimination based on religious viewpoint, which may be prohibited by the Establishment Clause) -- and, as always, we're free to mock them.

 
[David Bernstein, 1/30/2004 07:03:14 AM]
Mel Gibson: Holocaust Denier? I haven't wanted to prejudge Mel Gibson's film on Jesus, nor have I wanted to judge him based on his affiliation with a sect that rejects Vatican II, nor based on the anti-Semitism of his father. I've gotten many concerned emails from Jewish friends on all of the latter topics, and have basically ignored them, especially those that would judge him based on the nutty views of his dad.
The following, however, is at least troubling and deserves further explanation:

'YOU'RE GOING to have to go on record. The Holocaust happened, right?" Peggy Noonan asks of Mel Gibson in the Reader's Digest for March.
Gibson: "I have friends and parents of friends who have numbers on their arms. The guy who taught me Spanish was a Holocaust survivor. He worked in a concentration camp in France. Yes, of course. Atrocities happened. War is horrible. The Second World War killed tens of millions of people. Some of them were Jews in concentration camps. Many people lost their lives. In the Ukraine, several million starved to death between 1932 and 1933. During the last century, 20 million people died in the Soviet Union."

There are some serious problems with this statement, include the gratuitous lumping of the Holocaust with other tragedies that were not relevant in context, that suggest an aggressive hostility to Noonan's question (the question itself would seem a bit strange, but for the fact that Gibson's father is a Holocaust denier), and at best a desire to put the Holocaust into "context". But here's the really troubling part: "The Second World War killed tens of millions of people. Some of them were Jews in concentration camps." I'm no expert on Holocaust "revisionism" (denial), but I've read enough about it to know that this part of Gibson's statement sounds a heck of a lot like what the deniers say: instead of stating the historically obvious, that there was a systematic campaign to exterminate Jews in death camps, they say that Jews were merely among the many victims who suffered and died in concentration camps; maybe they suffered slightly more than others, but that's about it.
Indeed, Gibson is skirting pretty close to "Holocaust denial." Here is what the Nizkor.org website says about the topic:

The question [of whether the Institute for Historical Review, the leading Holocaust denial group, denies the Holocaust] appears to turn on IHR's Humpty-Dumpty word game with the word Holocaust. According to Mark Weber, associate editor of the IHR's Journal of Historical Review, "If by the `Holocaust' you mean the political persecution of Jews, some scattered killings, if you mean a cruel thing that happened, no one denies that. But if one says that the 'Holocaust' means the systematic extermination of six to eight millions Jews in concentration camps, that's what we think there's not evidence for." That is, IHR doesn't deny that the Holocaust happened; they just deny that the word "Holocaust" means what people customarily use it for.

Now compare this to what Gibson said. The Holocaust happened. He has friends and parents of friends with numbers on their arms. A guy who taught him Spanish had a tatoo, was a survivor of the camps (not clear if he was Jewish). Atrocities happened. Millions were killed. Some of them were Jews in concentration camps. Note what this leaves out: that Jews were murdered in death camps, and were murdered because they were Jews, beyond some scattered killings, as part of a systematic program of genocide. Maybe I'm reading too much (or not enough) into this, but I'm certainly not satisfied after reading what Gibson has to say about the Holocaust that he believes the Holocaust, as the word is commonly understood, occurred. And, while I'd like to give him the benefit of the doubt on this, and assume that he just used clumsy language, it's quite hard to do so knowing the views of his father (edite: which, because of the controversy surrounding them, suggest that Gibson would be both familiar with the views of Holocaust deniers and sensitive to the subtleties attendant to the controversy).
UPDATE: My correspondents are getting distracted by the side issue of whether Gibson should have raised gratuitously raised Soviet atrocities, etc., in the same context as the Holocaust (a tactic indeed used by Holocaust deniers and certainly "Holocaust minimizers", but hardly unique to them, and hardly good evidence of Holocaust denial, and I didn't claim it was!). Please focus on what I said was the main issue, the really troubling thing about what Gibson said: Holocaust deniers, at least the sophisticated ones, don't deny that Jews were sent to concentration camps, and don't deny that Jews suffered during the war, and perhaps suffered a bit disproportionately because they were Jews. What they do deny was that the Germans singled out the Jews for genocide, that millions of Jews were murdered, and that Jews were sent to death camps, not simply to labor or concentration camps. Nothing that Gibson said was inconsistent with the views of a Holocaust denier, and, indeed, as I pointed out, his statement sounds a lot like the stated views of the editor of the Holocaust-denying Journal of Historical Review. This all may be innocent on Gibson's part, and, if someone would ask him directly, "do you believe that the Germans murdered approximately six million Jews during World War II" and he said "yes" I would leave it at that. But given that he grew up in an anti-Semitic family, with a Holocaust-denying father, and has now asserted views that are very much consistent with the views of a Holocaust-denier, I can't say that my presumptions are with him at this point.
FURTHER UPDATE: I know some people begrudge all the attention that the Holocaust gets, given other tragedies of the 20th centuries that get a lot less attention. But that's a separate issue. Gibson has been accused of promoting anti-Semitism via his new movie. I haven't seen the movie, so I have no opinion on that. His father is a known Holocaust-denying anti-Semite. An interviewer asks, do you believe the Holocaust happened? Gibson doesn't just say, "yes, it did, of course." He doesn't even say, yes, of course, and we should remember it, along with other great tragedies of the 20th century. Instead he gives what appears to be an intentionally ambiguous answer that sounds an awful lot like the answers given by anti-Semitic Holocaust-deniers. Again, I'm not ready to condemn Gibson yet, just stating that his answer raises further questions.
FURTHER UPDATE: A reader suggests: "I agree with, mostly, with your Volokh post on this subject, but have you considered this explanation for Gibson's vague comment: he doesn't want to publically take a position diametrically opposed to his father's because he loves the old nut and has to live with him for many many more years? "

 
[Randy Barnett, 1/30/2004 05:00:45 AM]
Complete Book Tour Schedule: Although I intend to confine myself to one post a week announcing the immediately forthcoming dates for my book tour for Restoring the Constitution: The Presumption of Liberty, I have received several queries from readers about whether I was coming to a particular city or state. So I decided to post the entire tour (subject to change) just this once before returning to my weekly updates. Some times may change, and some additional talks may be scheduled. "Lunch" talks will usually have free food and most likely be at noon.

BTW, here is a post by John Rosenberg, who I met at my talk at Washington & Lee on Wednesday.

FEBRUARY
Ithaca
Monday 2/2:
Cornell (4:00pm)
New York City
Tuesday 2/3:
NYU (12:30pm)
Columbia (6:00pm)

Washington DC
Wednesday, 2/4:
CATO Institute Book Forum (4:00pm) (FREE REGISTRATION)
Comments by Walter Dellinger & Hon. David Sentelle

Chicago
Thursday 2/5:
John Marshall (12:00pm)

Minnesota
Monday 2/9:
UMinn (lunch)
William Mitchell (5:30pm)
Tuesday 2/10:
St. Thomas (lunch)

Texas
Wednesday 2/11:
Houston (lunch)
South Texas (4:00pm)
Thursday 2/12:
St Mary’s, San Antonio (lunch)

Tennesee
Tuesday 2/17:
Vanderbilt (lunch)

Boston
Wednesday 2/18:
Boston University (12:00 pm)

Philadelphia
Wednesday, 2/25:
Temple (lunch)
Penn (afternoon)

MARCH
Southern California
Monday 3/1:
Chapman (noon)
Tuesday 3/2:
UCLA (12:00pm)
Pepperdine (afternoon)
Wednesday 3/3:
USC (12:20pm)
Loyola-Marymount (5:00pm)
Thursday 3/4:
Univ. San Diego (lunch)

Northern California
Wednesday 3/10:
Hastings (3:40pm)
Thursday 3/11:
Stanford (lunch)
Santa Clara (4:00pm BANNAN HALL 127)

Boston
Tuesday, March 16
Barnes & Noble @ BU (7:00PM)

New Orleans
Wednesday, March 17
Tulane College Senate Lecture (4:00PM - 203 Robert C. Cudd Hall)

Midwest
Monday 3/22:
Nebraska (lunch)
Tuesday 3/23:
Michigan (lunch)
Wednesday 3/24:
Notre Dame (12:15pm)
Thursday 3/25:
IU (lunch)
Friday 3/26:
St. Louis (lunch)

New Haven
Monday 3/29:
Yale Law School (12:30pm, seminar room 109)

Athens, Georgia
Tuesday 3/30
Georgia (3:30pm, Room A on the first floor of the law school)

Atlanta, Georgia
Wednesday 3/31:
Georgia State law school(lunch)
Emory law school (3:15pm)

APRIL

Tallahassee, Florida
Thursday 4/1:
FSU law school (12:30pm, D'Alemberte Rotunda)

Arizona
Tuesday 4/6:
Phoenix Fed Society Lawyers (4:30pm The Goldwater Institute)
Wednesday 4/7:
ASU (lunch)

South Bend, Indiana
Thursday, 4/15
Notre Dame (noon)

Oregon
Monday, 4/19:
University of Oregon (Eugene, OR) (12:00 @ law school)

Washington State
Wednesday 4/21:
Washington (lunch)
Seattle University (afternoon)

 
[David Bernstein, 1/30/2004 03:47:16 AM]
Moveon.org and CBS Did CBS interfere with Moveon.org's "right to free speech" by declining to air its anti-Bush ad during the Super Bowl? Nope.

Thursday, January 29, 2004

 
[Randy Barnett, 1/29/2004 09:40:41 PM]
Claremont Review of Books: RE: David's post on the Claremont Review of Books. Coincidentally, I subscribed last week after reading my second issue on the USAIR Shuttle to DC. But I used a credit card to subscribe on line.

 
[David Bernstein, 1/29/2004 09:30:12 PM]
Time to Raise the Medicare Eligibility Age: Washington Post: "The White House has concluded that adding prescription drug benefits to Medicare will cost one-third more than the $400 billion advertised by Congress and the administration when President Bush signed the bill into law less than two months ago, federal sources said yesterday."
If the President had shown any leadership on this issue, he would have traded the drug benefit for an increase in the eligibility age, which would help balance the books. The argument: drug costs have soared since Medicare was enacted, but so has the health, and lifespan, of seniors. Maybe Congressional Republicans will show leadership on this, since the president hasn't. Okay, I almost blogged that without laughing. But someone has got to do something about the way we are spending ourselves into oblivion.

 
[David Bernstein, 1/29/2004 04:08:53 PM]
Claremont Review of Books: Quite by accident, I recently came across a copy of the Claremont Review of Books. It is a truly excellent publication. The books for review were well-chosen, and the reviews I read (almost all of them) were uniformly interesting and well-written. I can't think of another print publication I've enjoyed as much recently. And although it's a conservative journal, conservative books were subjected to appropriate criticism. My subscription check is in the mail.

 
[Eugene Volokh, 1/29/2004 03:50:47 PM]
Citing unpublished opinions: Howard Bashman blogs some more about the controversy over proposed Federal Rule of Appellate Procedure 32.1. Brief summary of debate: Many federal appellate decisions are unpublished, and aren't supposed to be binding precedent. Many federal circuits actually prohibit the citation of these decisions in briefs before the circuit, and before federal district courts in that circuit. Proposed Rule 32.1 would set aside those prohibitions, and allow those decisions to be cited. The Advisory Committee is soliciting comments about this proposal from lawyers, and will do so until Feb. 16. You can submit comments here.

     Howard supports the Proposed Rule, but I share on this the view of my former boss, Judge Kozinski -- the Proposed Rule is a bad idea. Here's the substance of the comment that I submitted:

The wording of a precedential decision -- whether it's binding precedent or merely persuasive precedent -- is even more important than its bottom line. That's why judges pay a lot of attention to the words of their published opinions. They don't just make sure that the result is right, and properly arrived at. They also make sure that all the reasoning is as clear as possible, and as hard as possible to misconstrue. They and their clerks often pore over dozens of drafts of each opinion, just to make sure that it won't have some unintended effects.

Unfortunately, federal appellate judges simply can't devote this sort of attention to every single reasoned disposition they publish. There just isn't enough time, given the burden of work under which the judges labor. Nor do the great majority of decisions, which are merely straightforward applications of existing law, merit such effort. Unpublished dispositions aim to explain the law to the parties, so that the parties feel that their case has been taken seriously, and that the judges are applying the rules. But they often aren't crafted with the attention needed to prevent their being misconstrued and misapplied in the future. Allowing such decisions to become precedent thus risks creating much confusion for litigants, lawyers, and district court judges.

Nor is it enough to say that such decisions are just persuasive precedent rather than binding precedent. The trouble with the unpublished decisions, as I've argued, is that they may be (understandably) not very carefully or thoroughly reasoned. But this is a very hard argument for lawyers to make to district court judges, or for district court judges to make in their opinions. "You should not follow the Ninth Circuit's unpublished decision because it may well have been drafted in haste and with little editing by a staff attorney, with little attention or supervision by the judges" may be an honest and accurate argument. But given the understandable and proper respect that lawyers and judges are trained to express for the courts of appeals, it may be a hard argument to make. The unpublished decisions may thus exert a far greater effect over lower courts, lawyers, and litigants than they ought to exert -- and that the court of appeals itself wants them to exert.

So one consequence of the proposed rule will be confusion and risk of legal error. Another consequence will be more work for lawyers, and thus more expense for litigants: If there are three published decisions and twenty unpublished decisions on a particular point, Proposed Rule 32.1 may make a careful lawyer may feel obligated to read not just the three but all twenty-three.

Even merely persuasive precedent, after all, might be relevant to a court's decision. And if some of the twenty newly citable decisions aren't very carefully worded, then it may take still longer to fully evaluate them, and to craft an argument based on them. So the clients will end up having to pay more -- or, if they instruct their lawyers to stick just with the published decisions, they will risk being handicapped relative to the clients who are willing to pay more.

The final consequence of the proposal will likely be that circuit courts will just shift more towards the one-line unpublished orders, which simply say "Affirmed" or some such. Some circuits already do this; Proposed Rule 32.1 would push more circuits into doing that. Litigants and lawyers will thus lose any explanation of why they lost (or won). The U.S. Supreme Court will find it harder to review petitions for certiorari filed based on these decisions. And the quality of justice will suffer, because judges, clerks, and staff attorneys will no longer have to go through the discipline of explaining -- even briefly -- the details of their reasoning.

The ability to convey a reasoned decision, but one that's not so carefully worded that it deserves to be precedent (persuasive or binding), is an important option for a court of appeals. Taking away this option will be bad for all involved: court of appeals judges, district court judges, lawyers, and litigants. I therefore hope the committee will reject the Proposed Rule.

If you're a lawyer or a law clerk who agrees with me on this, I strongly urge you to submit your views, no matter how short. The Committee does pay attention to the comments that it gets, even the brief ones.

 
[David Bernstein, 1/29/2004 03:11:43 PM]
One Last Post on Bush and Liberals: My posts on Bush and Clinton-hating provoked much ado in the blogosphere, but what struck me most is how many liberal commenters (especially in the comments sections of various blogs) argued, "sure Bush is spending tons of money on discretionary programs," but (1) it's still not enough; (2) a smidgeon of it is going to things they don't like, such as DC's voucher program; and (3) (without presenting any facts or evidence) the money is being directed to significantly different purposes than it was in the past. I would advise these folks to read The Politics of a Guaranteed Income, by Daniel P. Moynihan, which discusses in excruciating detail how liberal mistrust of Nixon's intentions, combined with an insistence on holding out for a full loaf (fresh out of the oven, with butter and cream cheese) cost liberals dearly when a little cooperation with a purportedly "conservative" president eager to establish "compassionate" credentials on domestic policy before a reelection battle would have gotten them 95% of what they wanted. On second thought, don't read it, from my perspective things will work out better that way.

 
[Jacob Levy, 1/29/2004 03:11:08 PM]
Coffee updates: (See my earlier post, complete with updates, and Brad DeLong's original.)

Follow-up posts from:
Dan Drezner, James Joyner, Steve Taylor, Mark Hasty, Bryan S, Josh Cherniss. By the way, I entirely agree with all those writing that coffee is superior to diet soda. Well, good coffee is. But a) good coffee isn't always available, and b) full coffee cups don't fit conveniently into one's jacket pockets or one's bookbag. They're prone to end in unpleasant ways, unlike a soda can. Sometimes I'll drink bad coffee-- more often than I'd like, really-- because I need a sufficiently big hit of caffeine and good coffee is too far away. (I work in one of the only buildings on campus from whcih there is no indoor route to a cafe, and today's high is 5 degrees-- accordingly, I've only gone out for coffee once today.) But I'd rather drink a few Diet Cokes to hold me over, if good coffee will be available later on and the addiction's demands aren't overwhelmingly urgent.

When I was in college, I was endlessly charmed by the image of tweedy academics sitting around in the afternoons, playing chess over a glass of brandy and discussing great things. This seemed to me the life of the mind. I think there used to be more of that kind of thing-- or am I being nostalgic for something that never was? I gather that the financial crisis of faculty clubs has something to do with the decline of that culture, which leads me to believe that the chess-and-brandy image isn't entirely in my imagination. (There's a chess room in our faculty club, but the median age of the players is even higher than the median age of club members, itself much higher than the median age of faculty, suggesting a change over time.) I can hardly imagine an academic life now in which there was an afternoon per week-- much less every afternoon-- so devoted. Who has time? The image seems as impossible to me as the three-martini lunch came to seem to people in business in the 80s and 90s-- people who could barely take lunch at all, much less return to their desks seriously tipsy once it was done.

Just another sign of hecticness, I suppose-- the replacement of a brandy-fueled academia with an espresso-fueled one.

 
[David Bernstein, 1/29/2004 02:14:02 PM]
Opportunism: Yglesias: "Bernstein says liberals hate Bush not because he's a conservative, but because he's an opportunist. Delong explains that, no, the problem with Bush isn't his conservatism, it's his opportunism. They're both right." But riddle me this, Batman: how many politicians who aren't opportunists get very far in the world? It's sometimes wearisome, sometimes amusing, to see partisan Democrats and Republicans consistently accusing the other side of things that both sides are consistently guilty of. Or, put another way, (insert Yiddish accent here) "Nu, Clinton wasn't an opportunist?"
Bush and Clinton particularly grate the other side because they are opportunists who, as noted earlier, send out strong and controversial cultural cues, which they, in part, use to solidify a base far more loyal than their actual policies would allow. The same cues that solidify the base inevitably upset the other side's base.

 
[Eugene Volokh, 1/29/2004 01:48:10 PM]
Thinkers on coffee: Even before Levy and DeLong, Socrates himself famously said, "An uncaffeinated life is not worth living." Or something like that.

 
[Eugene Volokh, 1/29/2004 01:34:17 PM]
Your landlord has a legal duty to restrict your speech, if it's offensive enough to cotenants based on race, religion, sex, national origin, disability, or familial status (or, in some jurisdictions, sexual orientation, political affiliation, occupation, or "matriculation"). That's what Neudecker v. Boisclair Corp., a case that the Eighth Circuit federal court of appeals decided last month, held as to disability, but its logic applies equally to all the other categories. The court held, among other things, that landlords are liable under housing discrimination law for "hostile housing environments" created by their tenants' speech, just as employers are liable for "hostile work environments" created by their employees' (and patrons' speech).

     The court doesn't go into great detail about what the legal rule would be, or about the particular harassment at issue here, which apparently consisted of a tenant being "constantly harassed and threatened" based on his disability, which is obsessive-compulsive disorder. But given the hostile work environment cases that the court relies on by analogy, it's clear what the rule would be:

1. If the other tenants' conduct or speech is "severe or pervasive" enough



2. to create a "hostile, abusive or offensive" housing environment,



3. for the plaintiff and for a reasonable person,



4. based on race, religion, sex, national origin, age, disability, and familial status,



5. and if the landlord is notified of this,

then the landlord must stop such speech -- for instance, by threatening to evict, or evicting, the offending tenants (if their leases so allow). The tenant in this case alleged that the harassment was severe enough that it led to him move, but presumably that wouldn't be part of the test. And this is true even if the tenants' speech isn't within some existing First Amendment exception (such as the one for threats). It could cover offensive political statements, sexually themed displays, sexually themed jokes, religious proselytizing, and so on, as is the case in the workplace.

     Say, for instance, that some tenants are very hostile to fundamentalist Christianity. They often condemn fundamentalist Christians (referring to them as "Jesus freaks") in conversations in common areas, such as around the swimming pool, in the laundry room, or in hallways. (Such conversations are overheard by fundamentalist Christian tenants every couple of weeks.) They sometimes wear T-shirts that contain anti-fundamentalist-Christian messages, and put bumper stickers with anti-fundamentalist-Christian messages on the cars that they park in the building's garage. The landlord also allows all tenants to put up posters on their own doors (so long as they don't physically damage the door); the anti-fundamentalist tenants have put up some posters that ridicule fundamentalist Christianity. They do not make such statements directly to other fundamentalist Christian tenants, but they're well aware that fundamentalist Christian tenants might see the posters and hear the statements. But the anti-fundamentalist tenants don't care: They want to express their views, and don't care that others might be offended.

     The fundamentalist Christian tenants go to the landlord, and say: The other tenants' speech has created an environment that's hostile to us based on our religion (and that a reasonable person would find hostile based on religion). Tell the other tenants that they must stop this, and that you'll evict them if they don't stop. The landlord would then have a legal obligation -- enforceable by the threat of a substantial damages verdict -- to stop the anti-fundamentalist tenants from expressing their offensive viewpoints.

     I've argued before that hostile work environment law that mandates similar workplace speech codes is itself unconstitutional. But I've also argued that once such speech restrictions are allowed under a "hostile work environment" theory, they'd spread from offices and factories to other places: restaurants, bars, universities, newspapers, even apartment complexes (see, for instance, here). The Neudecker case, which makes clear that offensive speech by tenants can lead to landlord liability just as offensive speech by employees can lead to employer liability, is just one more piece of evidence.

     Hostile environment harassment law is one of the broadest speech restrictions in existence today. And it's getting broader still.

 
[Eugene Volokh, 1/29/2004 01:13:45 PM]
Stu's Views:

 
[Tyler Cowen, 1/29/2004 12:57:29 PM]
Outsourcing is good for America: Read Doug Irwin on this controversial topic. Doug is arguably America's leading trade economist these days. He writes:

"Has U.S. manufacturing been vaporized in the process? No--manufacturing production has risen about 40 percent over the past decade. Despite lower wages abroad, foreign firms have chosen to produce cars made by high-wage workers here, including Honda in Ohio, Mercedes-Benz in Alabama, BMW in South Carolina, and Toyota in California. Of course, the share of the American workforce in manufacturing has fallen steadily over the postwar period because of vast increases in productivity, but this is a worldwide phenomenon. Between 1995 and 2002, China, Japan, Brazil, and other countries lost more manufacturing jobs than did the United States, according to an Alliance Capital Management study.

The service sector will be reshaped by international developments, too. But just as low-wage China has not taken all of our manufacturing capability, low-wage India is not going to take all of our service sector production. Service producers will become even more specialized and will have to seek new ways of improving their efficiency and productivity. (Productivity in the service sector has notoriously lagged behind that in manufacturing.) As long as the American workforce retains its high level of skills and remains flexible as firms position themselves to improve their productivity, the high-value portion of the service sector will not evaporate."

Irwin also offers a lengthy description of the benefits of outsourcing, read the whole thing, as we say in the blogosphere.

 
[Eugene Volokh, 1/29/2004 10:40:24 AM]
"Just Say No to Drugs" would be forbidden at Illinois State University, too: Pete Guither writes, apropos my post about the UCLA speech code that prohibits any references, direct or indirect, to alcohol, illegal drugs, and crime in posters distributed in campus housing:

Thought you might like to know that I've been dealing with a similar situation at Illinois State University. Illinois State's policy is only slightly less poorly worded than UCLA's:

"Advertising of University sponsored activities, whether held on or off-campus, which include alcohol or other drugs as a part of the promotion of the event is prohibited."

I am faculty advisor for a registered student organization: Mobilizing Activists and Students for Hemp. They were denied permission to post flyers for their Hempfest (bands, speakers, and info) based on the use of the word "hemp" on the flyer and the inclusion of a hand drawn picture of a hemp leaf.

We appealed the decision and the appeal was denied by the Director of Housing.

I'm now taking it to the University President, University Counsel, and Academic Senate on the grounds that the denial is an unconstitutional infringement on the speech of students.

-- Documents are online at http://www.thelivingcanvas.com/mash/

Here's the offending poster:



The school's response was that the University Housing Services policy prohibits (among other things) any "references to alcohol, tobacco and/or illicit drugs," and the picture of a marijuana leaf and the title "Hempfest" violates this policy. (The e-mail that I quote above quotes another policy, which -- according to the school -- the flyer also violated.) Obviously, such a policy would literally prohibit a "Just Say No to Drugs" event, since that's a reference to illicit drugs; likewise, as the group's legal argument (available at the site cited above) points out, for a support group for alcoholics. And if the policy isn't applied to such events, that would only show that in reality the policy is viewpoint-based -- messages that drugs are bad would be OK, but messages that drugs really aren't so bad wouldn't be.

     Of course, if the school's concern is that there'll be drugs at the event, they should welcome such flyers, since then they could just send in the school cops and bust it. Sounds to me like their concern is that such flyers might make people think that marijuana isn't so bad -- which is to say, might send a political, social, or medical message that the university disapproves of.

     This is quite likely unconstitutional, and pretty clearly a violation of students' academic freedom.

 
[David Bernstein, 1/29/2004 08:46:38 AM]
Further Reflections on Bush and Clinton-Hating: Beyond cultural dissonance, what drives liberals so crazy about Bush is that they think, no, know, that deep down he is a very conservative man, with a very conservative agenda, but he refuses to run an overtly ultraconservative adminsitration they can argue and run against. They would love it if he would not only "cut taxes for the rich" but cut spending to balance it out. Instead, he cuts taxes (the rich paying a huge share of income taxes these days, they get the lion's share of direct benefits from the cuts), while also massively increasing spending on popular domestic programs. Krugman and others figure that the "plan" is to starve the government in the far-off future, when spending needs will grossly exceed tax revenues, resulting in a crisis that will require the gutting of government programs, without Bush having had to pay a political price. I think the "plan" is simply to get George Bush reelected, and that Bush's advisors don't give a horse's petootie (I've always wanted to use that phrase in print!) about the size of government, so long as they stay in power. And, contra Krugman, the odds that the huge increase in government under Bush will be undone in our lifetimes is slim, indeed--as with the Social Security crisis of the early '80s, we could simply have minor reforms with major tax increases, or, as with the current Medicare crisis, we could simply ignore it and spend even more money. I agree that all of this is reckless on Bush's part, and fiscal conservatives are rightly up in arms, but I'm not sure why Keynesian liberals (not necessarily Krugman) who normally applaud deficit spending during recessions and want permanent increases in federal spending should be upset.

Nothing frustrates ideologues on one side of the political aisle more than when it turns out that their political opponent is not an ideologue, but an opportunist, (or perhaps simply a typical politician with moderately conservative or liberal leanings). The same was true with conservatives and Bill Clinton, whom conservatives just knew was a die-hard ultra-liberal, but who was perfectly willing to end the welfare entitlement when it became politically convenient to do so (and who knows, he may have thought it was a not-so-bad idea). And indeed, conservatives would have had far more respect for a Bill Clinton who had governed as a McGovernite, and liberals would have more respect for Bush if he governed as a Goldwaterite, because then they would be acting according to what their opponents perceive to be their "true" iedological beliefs.

For years, I've thought the only significant reason to vote for Republican presidential candidates was their better judicial appointments, and this reamins true, but even here Bush's political opportunism is manifest. He, like Clinton, has generally avoided nominating prominent but potentially controversial academics who are most likely to dramatically effect changes in the law (unlike Reagan--think Scalia, D. Ginsburg, Easterbrook, Posner, Stephen Williams), while his most controversial nominees have served other political ends, either paying off political favors (Pickering), or scoring political points regarding "diversity" (Rogers Brown, Gregory, et al.)

Anyway, two points to the first liberal blogger to actually give Bush credit for increasing federal education spending by "33 to 68 percent, depending on how you calculate the numbers." (UPDATE: (Points to Maxspeak, who was early on this, and runner up points to Matt Yglesias). Perhaps he even believes in it! And check out the comments to Yglesias's post on Bush-hating, to see examples of (1) liberal hysteria over the fact that the Bush administration has (gasp!) evangelical Christians in it; and (2) strained attempts to claim that policies that would be perfectly acceptable or at least debatable if Clinton had pursued them (didn't the U.S. act unilaterally and with military force in Haiti and to some extent in Bosnia?) suddenly become examples of evil incarnate when pursued by Bush. And here's a good example of a defense of liberal Bush-hatred; note how early in the post that the author describes Bush's budget record as "no major spending cuts" when, in fact, spending has gone through the roof, as any good liberal would desire.

 
[Sasha Volokh, 1/29/2004 07:57:02 AM]
The art of Russian cuisine: Hosted a party for my Russian class yesterday; I made chicken liver pate and borshch from my mother's cookbook, my professor made syrniki (sweet cheese patties), and Hanah, as she describes here, made smetannik, a two-layer sponge cake with a sour cream/whipped cream/walnut frosting (definitely one of the best Russian cakes).

 
[Jacob Levy, 1/29/2004 06:41:44 AM]
New Hampshire, one more time Mickey Kaus notes:

Psst: President Bush got 87% of the vote in the Republican primary. Isn't that not so good?

Answer: The New Hampshire primary's just like that. Dozens of candidates pay the filing fee and get their names listed on the ballot, and many of them spend serious time conducting their more-or-less unserious campaigns in the state. Lots of NH voters are just contrarian. And people insist on conductong write-ins of members of the opposite parties-- sometimes because they're true believers (e.g. committed Reagan Democrats), sometimes because they didn't realize that they wouldn't get to vote in the fun primary because they were members of the party that didn't have a real race that year. And so the never-heard-of-ems and the write-ins often combine to get 5-15% of the vote or so. Consider: in 1984, Reagan got just 86.4% of the Republican vote (though he also got 5% of the Democratic vote; the Union Leader's 'endorsement' in the Democratic primary was to write in Reagan). In 1996 Clinton got something under 95% of the Democratic vote.

This time most of the non-Bush votes seem to have been write-ins for Democrats. This just means that registered Republican voters got innundated with ads for the Democrats, didn't realize that they wouldn't get to vote in the exciting primary, showed up at the ballot booth, and wrote one in.

 
[Tyler Cowen, 1/29/2004 04:42:56 AM]
Why Paul Craig Roberts is important: Paul Craig Roberts wrote Alienation and the Soviet Economy, first published in 1971. An entire generation of market-oriented economists were influenced by this book. Many of us envied Roberts for the work. It combined history, history of ideas, analysis, and political science into a brilliant whole. He was the first American economist to flesh out the idea that Soviet "central planning" was not central planning at all, but rather a decentralized system with very poor incentives. The late Don Lavoie, arguably the greatest authority on the planning debates, cited Roberts as a major influence as well. Alienation and the Soviet Economy was one of the most important books of the 1970s, and one of the most important books on the Soviet system. That being said, Roberts never achieved the recognition from the economics mainstream that he deserved, I do not know why. Perhaps he came with the message too early, plus the book was not very technical.

I have not much followed Roberts's recent writings, except for his turn toward protectionism. I was saddened to read Eugene's account from yesterday. Did you know that Roberts was inducted into the French Legion of Honor in 1987? Perhaps over time, due to his unjust lack of recognition for his early achievements, he has stopped writing for his intellectual peers and sought other goals.

Wednesday, January 28, 2004

 
[David Bernstein, 1/28/2004 09:29:40 PM]
George Bush, Liberal Darling: For those of you arriving at this post via Brad DeLong or Mark Schmitt, FOLLOWUPS to this post can be found, in reverse chronological order, here, here, and here.
Huge increases in spending on education and other domestic programs that are not even within the federal government's constitutional purview; a new prescription drug entitlement for the elderly; Wilsonian rhetoric and actions in foreign policy; Kennedyesque manned space mission boondoggles; clumsy protectionism; in its appointments to high-level positions, the most affirmative-action conscious administration in American history; a proposal to legalize the status of illegal aliens; and now, a huge proposed increase in funding for the National Endowment for the Arts. Remind me again of why liberals are so hostile to George Bush? Give him a phony Haavaad accent instead of phony Texas twang, a wonky college life, a less religious persona, and an attorney general other than John Ashcroft, and George Bush, in theory, would be a dream president for many liberals, judging by their ex ante policy preferences. But the dirty little secret of American politics, as explained so well by Michael Barone, is that cultural cues are more important than policy and ideology. W just represents lots of things that coastal liberals dislike, and they will continue to dislike him regardless of how he governs policy-wise. But I find it amusing when they dress up their cultural prejudices in rhetoric along the lines of claiming that Bush is running a "right-wing" or "ultraconservative" administration that wants to roll back not just the Great Society, but also the New Deal.

UPDATE: Glenn Reynolds points out that liberals always hated Nixon, too, even though Nixon also proposed and enacted very liberal policies. Of course, the liberals never forgave Nixon for his "red-baiting" Senate campaign in 1950, which they thought not only smeared a good woman (opponent Helen Douglas) but also (1) paved the way for McCarthyism; and (2) was the primary example, in their minds, of how "anti-Communist hysteria" was "manipulated" by conservatives to prevent the emergence of American social democracy in the wake of the New Deal. Not to mention that many American liberals remained convinced for decades that Communist spy Alger Hiss was innocent, and that Nixon had dishonorably smeared him as well for political gain. Quite a bill of particulars against Nixon, compared to the weak reasons for liberal Bush-hatred. In fairness, I was equally puzzled by conservatives' hatred for Clinton, who was probably overall the most conservative Democratic president of the twentieth century policy-wise, but also represented elements of cultural liberalism (draft-dodging, pot-smoking, womanizing, feminist-marrying, Hollywood-befriending, etc.) that drive conservatives nuts.
FURTHER UPDATE: A reader aptly notes that Nixon was president in very liberal times; liberals wanted more, and thought they could get it from someone like McGovern. By contrast, it's very unlikely we would have seen the kind of domestic spending increases we've seen under Bush if Al Gore was president and had to deal with an oppositional Republican Congress. Sigh! Guess I'll enjoy my tax cuts and invest in Euro-denominated stocks as the deficit explodes and the dollar declines to Canadian status.
UPDATE NOTE: Some readers are taking this post too literally. Of course, Bush shouldn't be a "liberal darling," but the hatred he engenders on the left cannot be explained by the ideological content of his policies, which is hardly "hard right" and in some contexts is quite liberal. In all, it's hard for me to imagine a Republic president with a Republican Congress governing further to the left on many issues.

 
[David Bernstein, 1/28/2004 07:30:53 PM]
Fake Nike Ad: A reader alerted me to a purported Nike ad, using imagery from a terrorist bombing in Israel to sell sneakers. The reader suggested that the ad was likely fake; it was soon forwarded to me by a friend, who assumed it was real. Snopes verdict: fake!

 
[David Bernstein, 1/28/2004 07:05:11 PM]
Lieberman Campaign, RIP: No wonder Lieberman has been doing so poorly thus far. I caught him on Larry King last night, and he was emphasizing how moderate he is, how he is indeed a conservative Democrat, how he loves working with moderate Republicans like John McCain, etc., etc. Joe: this is the stuff for general election campaigns, not for primaries when you are going after partisan, ideological voters! I briefly worked for the Kemp 1988 presidential campaign as a volunteer, and was baffled by Kemp's insistence on emphasizing issues of concern largely to black and Latino voters--issues that may indeed be important, but left his (overwhelmingly white) Republican audiences looking puzzled (as did Kemp's assertion that he is a "liberal democrat"--"small 'l', small 'd').

The oddest thing about Lieberman's appearance on King is that his record, except for defense, isn't all that conservative. In 1999, Lieberman was given a 95 percent rating from the liberal Americans for Democratic Actoin, while the American Conservative Union gave him a zero for that year. His lifetime record is more conservative, but still moderately liberal.

Still, though it's a little late for Lieberman, if he really wants to go after the moderate to conservative vote in the South and West, he can start by doing what he should have done to begin with: making a big issue of the fact that the Democratic Party should not be treating racist demagogue Al Sharpton as a serious candidate worthy of respect, any more than David Duke should have received the respect of the Republican Party when he had his fifteen minutes. Not good for black-Jewish relations, perhaps, but it has the merit of actually being the right thing to do, and what not only Lieberman but the other Dems should have done to begin with. The only problem is, having handled Sharpton with kid gloves until now, any contrary actions by Lieberman would smack of desperation. Then again, his campaign is in fact desperate, and the attention Sharpton will get because of South Carolina would provide Lieberman's excuse.

 
[Eugene Volokh, 1/28/2004 04:45:02 PM]
A bit more on Paul Craig Roberts: A reader writes: "I'm not totally sure why you're spending so much time on this guy. Is he significant in some way?"

     Well, here's his bio, from townhall.com, where he's a regular columnist; his column also runs in the Washington Times:

Paul Craig Roberts is the John M. Olin fellow at the Institute for Political Economy, research fellow at the Independent Institute and senior research fellow at the Hoover Institution, Stanford University. A former editor and columnist for The Wall Street Journal, he writes a political commentary column for Creators Syndicate. He also writes a monthly economics column for Investors Business Daily. In 1992, he received the Warren Brookes Award for Excellence in Journalism. In 1993, he was ranked as one of the top seven journalists by the Forbes Media Guide.

He was distinguished fellow at the Cato Institute from 1993 to 1996. From 1982 through 1993, he held the William E. Simon chair in political economy at the Center for Strategic and International Studies. From 1981 to 1982, he served as assistant secretary of the Treasury for economic policy. President Reagan and Treasury Secretary Regan credited him with a major role in the Economic Recovery Tax Act of 1981, and he was awarded the Treasury Department's Meritorious Service Award for "his outstanding contributions to the formulation of United States economic policy." From 1975 to 1978, Dr. Roberts served on the congressional staff where he drafted the Kemp-Roth bill and played a leading role in developing bipartisan support for a supply-side economic policy.

In 1987, the French government recognized him as "the artisan of a renewal in economic science and policy after half a century of state interventionism" and inducted him into the Legion of Honor.

Dr. Roberts' latest book, co-authored with Lawrence Stratton, is The Tyranny of Good Intentions: How Prosecutors and Bureaucrats are Trampling the Constitution in the Name of Justice (2000, Prima Publishing). The New Colorline: How Quotas and Privilege Destroy Democracy, also co-authored with Lawrence Stratton, was published by Regnery in October 1995. Meltdown: Inside the Soviet Economy, co-authored with Karen LaFollette, was published by the Cato Institute in 1990. His book, The Supply-Side Revolution, was published by Harvard University Press in 1984. Widely reviewed and favorably received, the book was praised by Forbes as "a timely masterpiece that will have real impact on economic thinking in the years ahead." He is the author of Alienation and the Soviet Economy, published in 1971 and republished in 1990, and Marx's Theory of Exchange, Alienation, and Crisis, published in 1973 and republished in 1983.

Roberts has held numerous academic appointments and has published many articles in journals of scholarship, including the Journal of Political Economy, Oxford Economic Papers, Journal of Law and Economics, Studies in Banking and Finance, Journal of Monetary Economics, Public Finance Quarterly, Public Choice, Classica et Mediaevalia, Ethics, Slavic Review, Soviet Studies, Rivista Di Politica Economica, and Zeitschrift Fur Wirtschafspolitik. He has contributed to Commentary, The Public Interest, Harper's, The New York Times, The Washington Post, Los Angeles Times, Fortune, Investor's Business Daily, London Times, Financial Times, The Spectator, The Times Literary Supplement, IL Sole 24 Ore, Le Figaro, Liberation and The Nihon Keizai Shimbun. He has testified before committees of Congress on over 30 occasions.

     Things he says, unfortunately, have some chance of mattering. That's why I think it's important to rebut them, when they need rebutting. And because he's generally affiliated in people's minds with the Right (including, perhaps surprisingly, some parts of the Libertarian Right), I think it's especially important for conservatives and right-leaning libertarians to be among the ones doing the rebutting.

 
[Jacob Levy, 1/28/2004 04:26:01 PM]
Brad DeLong makes a mistake: In preparing for office hours, Brad dialectically downs 40 ounces of Coke.

Thrasymakhos: Ah. Proof that demand for some commodities is effectively unbounded!

Glaukon: What are you talking about?

Thrasymakhos: Diet coke. You're buying two bottles of diet coke. And not just two normal bottles. Two 20 oz. bottles. That's 40 oz. of diet coke you're buying, at once.

Glaukon: It's not diet coke.

Thrasymakhos: It isn't?

Glaukon: It's real coke.

Thrasymakhos: Why?

Glaukon: I have three straight hours of office hours ahead of me. I need the caffeine. I need the blood sugar.

It's my experience that he'd have been better off with the Diet. Today I sat through a four-hour meeting followed by a one-hour meeting followed by three and a half hours of office hours (the students have a paper due next week). Espressos, breve lattes, and Diet Cokes were the order of the day. The blood sugar spike from the regular Coke, even from rather a lot of regular Coke (and 40 oz. doesn't yet begin to qualify as 'a lot' on a day like that) disappears much faster than the caffeine effect, and the subsequent sugar crash is harder to shake than the comedown from caffeine. I can go through eleven or twelve hours never really crashing from caffeine; I just have some more. Sugar doesn't, as far as I can tell, work like that; you're going to pay for the spike with crashes pretty regularly through the day even if you keep chugging. If you need blood sugar, eat something-- and something that's not all sugar.

Disclaimer for my students: Professor Levy's level of caffeine intake is not medically recommended and should not be emulated. His tolerance is at an appallingly high level, and therefore his intake does not interfere with his getting eight-plus hours of sleep per night. You all have an alarming tendency not to get eight hours of sleep per night, and this is not good. Coffee is a wonderful, wonderful thing but is not a substitute for sleep...

UPDATE: Keith Whittington, the distinguished public law scholar at Princeton, writes in:

I noticed your blog on the relative merits of Diet Coke as a stimulant. I recently discovered the interesting fact that most diet sodas also have more caffeine than the regular varieties. Coke Classic is 34 mg, for example, but Diet Coke is 45.6. Pepsi One is up there with Mountain Dew. Diet Dr. Pepper is the outlier in having the same (relatively high) caffeine content as the regular. Of course, all sodas pale in comparison to coffee. See http://wilstar.com/caffeine.htm.

A few people wrote in to ask for details about my own intake. Taking yesterday as an example-- it was a bit unrepresentative because of the dayful of meetings, but not by any means a radical outlier-- and using the numbers on the caffeine chart linked to above:
8 am. Triple espresso. 300 mg.
8:30 am. Breve latte with an extra shot (i.e. a triple espresso with steamed half-and-half). 300 mg.
10:45 am. Diet Coke. 45 mg.
12 noon. 1 cup brewed coffee. c. 100 mg.
2:30 pm. Diet Coke. 45 mg.
3:30 pm. Dan suggests we take a quick break from office hours and get a snack. He gets a Toll House brownie bar. I get another triple espresso. 300 mg.
With dinner: Diet Dr. Pepper. 41 mg.
Total: 1131 mg.

As I look at this I realize this isn't by any means the most caffeine I might have in a day. Because I was tied down to office hours and meetings I didn't step out for Diet Cokes as often as I sometimes do. Because the meetings start so early I didn't brew myself a pot of coffee at home, from which I might easily have 4-5 cups some days. Already today I've had four shots of espresso and the equivalent of three cups of coffee. (Had breakfast at the faculty club, where coffee gets served in silly little teacups, which makes it hard to get an accurate count.)

As I said: not recommended. It's fun, though. I'd worry more about my addiction if it weren't such a pleasant one-- or if I ever got jittery or shaky, or if I ever lay awake at night.

 
[Eugene Volokh, 1/28/2004 04:15:59 PM]
Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.

     Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt. But the Supreme Court has often held that even when the government is distributing a strictly optional benefit, the Constitution often (though not always) prohibits the government from discriminating based on the exercise of a constitutional right.

     For instance, I suspect the law generally may not bar adoptions by people who have expressed certain political beliefs, who practice certain religions, or who own guns (either if the Second Amendment is interpreted as protecting an individual right, or if the state involved is one of the many states whose constitutions clearly secure an individual right). The government generally may not use a person's exercise of his First or Second Amendment rights as a justification for denying them the benefit of an adoption. The government may have some power to consider a person's constitutionally protected conduct in making this decision -- in government employment decisions, for instance, the Court has held that the government has consider power to consider an employee's speech when the speech risks interfering with the efficiency of the government employer. But courts demand more than just a bare "rational basis" for such government decisions; they generally require some pretty substantial evidence that the person's exercise of his constitutional rights is substantially relevant to the government's decision.

     If Lawrence does recognize a constitutional right to sexual autonomy that's akin to the freedom of speech, the free exercise of religion, and the like -- which is what "fundamental constitutional right" generally means -- then the government would have to show that allowing adoptions by practicing homosexuals really would pose some pretty serious problems. But if it doesn't recognize such a right, but only holds that criminal prohibitions are illegitimate (perhaps because they fail even rational basis scrutiny), then it could defend its no-gays adoption policy under a simple rational basis test.

     Note, incidentally, that the Florida Constitution specifically secures a right to privacy, and Florida courts have interpreted it as protecting sexual autonomy. Given this, I think the Florida courts' earlier decision upholding the no gay adoptions statute is unsound (Dep't of Health & Rehabilitative Servs. v. Cox, 627 So.2d 1210 (Fla. App. 1993), aff'd as to the right to privacy, 656 So.2d 902 (Fla. 1995)). The courts erroneously assumed that, just because an adoption is a government-provided benefit, the government is free to deny this benefit based on a person's exercise of his right to privacy. That, I think, is wrong, just as it's wrong to say "government employment is a benefit, so the government is free to deny it to pacifists / Catholics / gun owners."

     (Thanks to How Appealing for the pointer.)

 
[Eugene Volokh, 1/28/2004 03:42:41 PM]
Claim to fame: The person credited for writing the Ctrl-Alt-Delete code is retiring. (It's not clear from the story whether he also hit on the idea of using Ctrl-Alt-Delete as the restart sequence.) Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 1/28/2004 01:20:36 PM]
The remarkable Paul Craig Roberts: Columnists Paul Craig Roberts begins a recent column with a criticism of the income tax -- something that certainly could be criticized -- but then says (emphasis added):

Compare an American taxpayer's situation today with that of a 19th century American slave. Not all slaves worked on cotton plantations. Some with marketable skills were leased to businesses or released to labor markets, where they worked for money wages. Just like the wages of today's taxpayer, a portion of the slave's money wages was withheld. In those days the private owner, not the government, received the withheld portion of the slave's wages.

Slaves in that situation were as free as today's American taxpayer to choose their housing from the available stock, purchase their food and clothing, and entertain themselves.

In fact, they were freer than today's American taxpayer. By hard work and thrift, they could save enough to purchase their freedom.

No American today can purchase his freedom from the IRS.

Slaves could also run away. Today, Americans who run away are pursued to the far ends of the earth. Indeed, the IRS can assert its ownership rights for years after an American gives up his citizenship and becomes a citizen of a different country. The IRS need only claim that the former American gave up his citizenship for tax reasons.

     Conspicuously omitted from the comparison: Pre-Civil-War slaves could be sold by their masters. The masters could sell one's spouse, or one's children, and you might never see them again. The masters could sell one's daughters into prostitution. In some states, it was illegal for slaves to be educated. Slaves naturally didn't have constitutional rights, such as freedom of speech. Masters could, to the best of my knowledge, engage in a broad range of corporal punishment (all of course without any requirement of due process). The masters surely could try to stop slaves from running away, and to my knowledge many slaves were murdered while trying away. Need I go on?

     Seriously, would any of you trade your modern status, even with high income taxes, for being a slave in the 1850 South, even a favored one such as the sort Roberts describes? Hey, I'm a big believer in economic liberty, which too many people wrongly devalue. But it's ridiculous moral blindness to overvalue it, and to undervalue the panoply of other liberties that we as free men have and that Southern slaves did not. "In fact, [certain pre-1860 American slaves] were freer than today's American taxpayer" is just an appalling statement to make.

     Oh, and here's the crowning touch, from later in the column:

The "Civil Rights revolution" destroyed equality before the law. Today rights are race-and gender-based. We have resurrected the status-based rights of feudalism. The new privileges belong to "preferred minorities" rather than noble families.

Readers of the blog know that I'm happy to complain about ways in which civil rights laws (and other laws) restrict liberty, or erode equality. But saying that "The 'Civil Rights revolution' destroyed equality" and that "Today rights are race- and gender-based" suggests that somehow before the 1960s we had more equality and didn't have race- and gender-based rights.

     Jim Crow; segregated schools; legal prohibitions on women working in various jobs; government tolerance of race-based lynchings; routine discrimination against nonwhites and women in a vast range of government jobs; systematic police abuse of blacks -- all that somehow didn't involve inequality before the law or "race- and gender-based" rights. But set up race- and sex-based affirmative action (which, I stress again, I oppose) and other aspects of modern civil rights laws; now, all of a sudden (even though women and racial minorities have more nearly equal opportunities with men and whites than they've ever had in American history) that's "destroy[ing]" some preexisting equality. What sort of moral and practical blindness is this?

     This, of course, is the man who wrote in the Washington Times and in his TownHall.com columns that (all emphasis added):

1. "Recently, a federal judge wrote to me. . . . He was astounded that among almost 100 new citizens [for whom he had conducted a naturalization ceremony], there were only four or five Europeans. Immigration policy has produced an extraordinary change in the ethnic composition of the U.S. population. Experts tell me that it has been three decades since Europeans comprised a significant percentage of new citizens. In 1965, the Democrats, who lost the South, changed the immigration rules in order to build African, Asian, and Hispanic constituencies that would vote Democratic. In effect, native-born U.S. citizens are being "ethnically cleansed," not by violence, but by their own immigration policy. . . . When I first came to Washington, D.C., 25 years ago, the only international-looking people one saw were in the diplomatic community. Now, it is every third person."
   
        As I've argued, "international-looking" is presumably the antonym of "American-looking people," but what exactly does that mean? I assume that it refers to the non-European, "African, Asian and Hispanic"-looking people (what else can it be referring to?). But aren't there people in our very nation, native-born U.S. citizens with roots in America dating back centuries or at least many decades, who look African, Hispanic, and Asian? It seems to me that there are two options: Either black, Hispanic, and Asian Americans are as much part of our nation as Europeans, in which case it's hard to imagine who's left to be "international-looking" (I take it that the author wasn't commenting only about, say, South Asians, many of whom have a "look" that wasn't visible in large numbers in the U.S. until recently). Or "international-looking" means, well, "non-white" -- in which case what does that say about the author's vision of who is a genuine member of our own nation?



2. "[People] see the demise of the native-born in a recent occurrence in Richmond, Va. There a city councilman, Sa'ad El-Amin, has forced the removal of a mural of Robert E. Lee, the most beloved of all Virginians. When I was a kid even Northerners respect Robert E. Lee. Not a word was heard against him." The most beloved of all Virginians? More so than Jefferson and Washington? A man who stands for defense of the Confederacy is more beloved than one who stands for liberty and one who is the father of our country? What does that say about the worldview of all Virginians, or at least of all Virginians of the sort that Roberts seems to like? And might it be that some Virginians -- perhaps, say, black Virginians -- might not have much love for someone who, honorable as he might have been in his own way, is most noted for defending a country that was committed to keeping many Virginians in slavery?



3. "The original U.S. Constitution that [legal scholar Raoul] Berger well understood is now dead. Its essential feature -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation. . . ." Really? The essential feature of the original U.S. constitution, which protected race-based slavery, was "equality in law"? "Differential group rights based on skin color, gender, disability and sexual orientation" are somehow something new, and not a part of the 1787 order? Which history books has he been reading?



4. "In the old feudal system, there were no First Amendment rights. The legally privileged were free to engage in hate speech and to verbally harass others, but any commoner who replied in kind could be sued or have his tongue cut out. Senate Majority Leader Trent Lott still has his tongue, but just barely. He used his tongue in a way that gave offense to the new aristocrats. Black Americans have been granted the right to be offended by any words they don't like and to extract retribution. The offending speaker finds himself forced into contrition and humiliating apologies. Often the penalty is a destroyed career. . . . The spectacle proves -- if proof is any longer required -- that the First Amendment has been trumped by the race-based privileges of the new feudalism." Wow -- "black Americans" are "the new aristocrats"; and when a public outcry leads to political damage to a politician (the general way in which free speech often works in a free country), that's somehow the equivalent of "feudalism."



5. "It was left to the libertarian, Llewellyn Rockwell, to point out that, fundamentally, states' rights is about the Tenth Amendment, not segregation. Thurmond's political movement sought a return to the enumerated powers guaranteed by the Constitution to the states. . . . Lott's tribute to Thurmond is easily defended on principled constitutional grounds. " Interesting. Did Thurmond's political movement also seek a return to other provisions guaranteed by the Constitution, such as, say, the Fourteenth and Fifteenth Amendments? If not -- if Thurmond's political movement actually sought continuing violations of those Amendments -- then shouldn't good constitutionalists be a bit uncomfortable with tributes to Thurmond?

     Quite a remarkable man, Paul Craig Roberts, with quite remarkable opinions and ways of expressing them.

UPDATE: Two readers e-mailed me to point out that Roberts cowrote an anti-free-trade op-ed with . . . Sen. Charles Schumer. I doubt that Sen. Schumer, though, agrees with Mr. Roberts' views quoted above; he might not even be acquainted with them.

 
[Jacob Levy, 1/28/2004 01:11:18 PM]
Missouri update: The flood of e-mail on the Missouree-Missourah question has run about 3-1 in favor of people saying "I'm from there/ grew up there/ have family there, and I've never heard anyone say Missourah who wasn't on TV-- they only say that in rural areas in the southwest of the state." Some of the others claim that "Missourah" is the older, more correct, pronunciation, and the problem is that the rest of the state has been flooded by newcomers. On the other hand, a couple of people remembered a poll that allegedly showed a 50-50 split in preferred pronunciation among residents.

In any event, it's no surprise that when newscasters decide to go for the cutesy affectation of pronouncing a placename as they think the locals pronounce it, they're prone to make mistakes. In this case, 'Missourah' is-- at best-- the choice of some locals. Makes the affectation sound even sillier.

 
[Eugene Volokh, 1/28/2004 12:30:32 PM]
Urban Outfitters was apparently selling a line of "Everybody Loves [Ethnic Group] Girls" T-shirts -- "Irish" with shamrocks, "German" with beer steins, "Jewish" with purses and dollar signs:



I'm pretty cautious about charging people with anti-Semitism; and I should also acknowledge that the target market for the shirts is obviously Jewish girls, so it would be Jewish girls who are associating Jewish with dollar signs as much as the manufacturer and distributor. Moreover, some such girls might happily wear such shirts simply as a celebration of shopping (which Jewish girls as well as other girls have been known to enjoy) rather than anything else.

     Still, depicting shopping as emblematic of Jewishness in the way shamrocks are emblematic of Irishness, or even beer (which the usual stereotype depicts Germans as drinking for fun, rather than to get drunk) as emblematic of Germanness, strikes me as pretty bad. Urban Outfitters must have the legal right to do this, but I think it's in pretty bad taste for them to exercise this legal right. Fortunately, the Anti-Defamation League reports that Urban Outfitters discontinued this shirt in early January, in response to the ADL's complaints. The story I cite above was published today, but I'm not sure whether the T-shirt sighting that it describes happened after early January or before.

     A Seattle Urban Outfitters store referred me to company headquarters, and I left a message with their public relations department. If I hear more from them that's relevant, I'll post an update. (Thanks to reader Regina Cullen for the pointer.)

UPDATE: Reader Prof. Patrick Brown writes:

Urban Outfitters has agreed to redesign the "Everyone Loves a Jewish Girl" t-shirt, removing the dollar signs. However, they are insisting on selling the ones that are already on the shelves or in the warehouse. These shirts are also being sold at the company's stores in Canada. Here's a [quote from] a National Post article on this story from last Friday . . . . reporting comments by the President of Urban Outfitters:

"Richard Hayne, the president of Urban Outfitters Inc., said last night the company agreed to modify the design.

"We agreed to take the dollar signs off and just keep it as it is otherwise. And it will say 'Everyone loves a Jewish girl,'" Hayne said in a telephone interview from Philadelphia.

"Our agreement with them was that we would sell out what we have and that when we printed the new ones they would be different. That seemed to be acceptable to the people here and that's what we're doing."

 
[Jacob Levy, 1/28/2004 12:16:25 PM]
Recurring imagery watch: [NB: I dislike calling such things 'memes.]

The Manchester Union-Leader's Bernadette Malone:

When the extent of Howard Dean's irascibility became clear, they said, "Thanks, but no thanks, nut-ball." Kerry slowly was ticking upwards in New Hampshire polls even before the Iowa caucuses. But the size of his victory Tuesday night ? or even his victory at all ? was not guaranteed until the scream that was heard round the world. Then Granite Staters gave up on him, and went to the dance with the boring guy from down the road who had asked them first anyway.

Chris Sullentrop:

Will the voters who dated Dean, then married Kerry get bored enough that they start to fantasize again about sleeping with Dean?

Me, two days ago:

The voters have tried the passionate enthusiasm thing with Dean, and worn themselves out; they're now kind of collapsing back to Kerry out of exhaustion, as a default. The "Dated Dean, Married Kerry" buttons don't fully communicate the dynamic, not without some tweaking. After dating a fiery, passionate guy who now seems a little nuts, these voters are lovelessly marrying the nearest single guy who seems basically grown-up and stable-- someone who is boringly familiar but at least a known quantity.

 
[Tyler Cowen, 1/28/2004 06:43:06 AM]
Common sense on WMD: Usually I avoid this topic when blogging, but here is some rare common sense, combined with a sense of balance. My favorite passage:

"Intelligence failure was inevitable given the nature of the Iraqi regime. The new conventional wisdom is that Hussein wanted us to think he had a more advanced WMD program than he thought he had, and that Hussein himself thought he had a more advanced WMD program than he really had. If Hussein could be deceived in a country where he had absolute power, where he regularly punished betrayers by slipping them through human shredders or having their wives raped in front of them, then any external intelligence service was going to be deceived as well. The intelligence community accurately reported that Hussein was hiding things, that he was pursuing WMD programs, that senior members of the Iraqi military-industrial complex were convinced Iraq was pursuing WMD. Given Iraq's record, it would have been heroic to connect those dots into the picture we now think we see, namely, that it was mostly Iraqi actors deceiving each other and everyone else."

Read the whole analysis. I don't mean that this argument should excuse the numerous intelligence failures, and failures of political courage, that occurred on this issue. It does mean, however, that our pre-war options were fairly limited and that simply pursuing more inspections would not have yielded much, one way or the other.

Tuesday, January 27, 2004

 
[Eugene Volokh, 1/27/2004 09:45:35 PM]
Welcome to Wonkette: I'm pleased to report that Wonkette has just been added to our blogroll. I normally don't announce such things, but given this post, I think I have to make an exception.

     I know, I know, the old "don't blogroll her, or else we'll never link to you" ploy is the oldest trick in the book; how could I have been so dumb as to fall for a conspiracy like that? What can I say -- I'm a sucker.

 
[Jacob Levy, 1/27/2004 06:45:35 PM]
Further primary thoughts: I'm watching television news tonight, which I almost never do. Maybe this is long-established. But: when did this affectation begin of talking about 'Missourah'? I know it's how some natives say the word. But it would sound silly for commentators with whitebread middle-America accents to name my hometown as "Pahtsmath, New Hampshah," just like it sounds silly for such commentators to arbitrarily pick a few Spanish placenames and roll the Ns and Rs, while they still say 'Paris' rather than 'Paree' and 'Warsaw' rather than 'Varsava'. Whence 'Missourah'?

 
[Jacob Levy, 1/27/2004 06:10:11 PM]
Primary: The New Hampshire primary always shifts me out of scholarly political-scientist mode and into political-news-junkie mode. And when I say 'always' I mean 'always.' I remember uninformed arguments on Portsmouth playgrounds during the 1980 campaign, when I was eight. By the time of the '84 Hart-Mondale race I was fully a part of the culture: Meet lots of candidates, argue with them about your own pet issues, carefully consider your own preference (mine was for Hart) even if for some arbitrary reason (e.g. being twelve years old) one isn't eligible to vote. Indeed, lots of the New Hampshirites I knew had clearly articulable preferences in both parties' primaries, though they could only vote in one. I argued about drugs with Pete DuPont and national service with Dick Gephardt. I don't study American politics or elections, but growing up around the New Hampshire primary surely pushed me toward political science in the first place.

New Hampshirites like to think that our primary is decisive or nearly so. Only one Democrat (Clinton '92) and one Republican (Bush '00) have won the White House without winning the N.H. primary since the primary system began. No one has won his party's nomination without coming in first or second in the Granite State.

But the odd truth about the New Hampshire primary is that it doesn't pick Presidents anymore. It doesn't even pick nominees. What it does is put a good scare into the eventual nominee.

Consider: In 1984 Gary Hart beat Walter Mondale. In '88 George H.W. Bush--a sitting vice-president--only managed a nine-point win over Bob Dole. In 1992, as a sitting president, he only beat Pat Buchanan by 16 in a two-man race; and Bill Clinton lost to Paul Tsongas (though narrowly enough that he was able to anoint himself "The Comeback Kid"). In 1996 Buchanan actually beat Dole, and in 2000 John McCain beat George W. Bush, prompting the panicked demagoguery of the South Carolina campaign. Eventual nominees: Mondale, Bush, Bush, Clinton, Dole, and Bush, respectively.

The ‘good scare’ doesn’t always translate into ‘losing.’ HW did win each of his two primaries. And last night (as in 1992) there wasn’t a clear establishment man, something I’ll return to below. So it’s difficult to be quite sure whether the pattern still holds, or who the scarer and scaree were last night if it does. Was last night as close as the upstart governor will ever get to beating the patrician Senator? Or was it the last chance to stop the guy who (let’s not forget) still has vastly more money and union power than anyone else in the race, advantages that will matter more and more as the campaign moves past Iowa and New Hampshire?

The ‘good scare’ pattern might mean one or more of the following.

1) Nominations are won with the usual institutions of support: lots of money, lots of endorsements, powerful interest group support, and so on. The New Hampshire primary is the moment in the campaign when a candidate whose strength lies elsewhere--say, in a personal connection with voters, or in charisma, or in wonkishness--to shine. Relatedly, New Hampshire voters just get cantankerous about anyone whose nomination seems determined by forces outside voters' control, or anyone who seems to be taking the nomination for granted. So they punish such candidates, but then those larger forces reassert themselves and the establishment candidates win. It seems to me that this is the theory that plays to Dean’s advantage; he still has commanding institutional resources. His loss in New Hampshire was the last moment that his resources could be outweighed by other things.

2) New Hampshire is an unrepresentative, idiosyncratic state, and voters elsewhere just aren't interested in the qualities that New Hampshire voters are. The previous theory is about the difference between voters and the establishment or powerful interest groups, and identifies New Hampshire as the voters' chance to take a stand. This theory is that New Hampshire's voters are different from voters elsewhere. The two obviously have different normative consequences; in one case, the goal should be to make the rest of the process more like the New Hampshire primary, while in the other the goal should probably be to dethrone New Hampshire from its privileged role.

I also think they have different consequences for our understanding of the race. Dean acquired his longstanding front-runner status in large part on the basis of his standing in the New Hampshire polls, and even after his collapse he played better in New Hampshire than in Iowa. I think this theory would tell us that New Hampshire voters were idiosyncratic in their taste for their cranky next-door neighbor, and that he will now fade quickly. But I also find this theory less persuasive than the first. Hart and McCain, to pick the two clearest examples, got buried by their opponents’ resources, not by their intrinsic popularity. Anti-tax New Hampshire was probably ripe country for Buchanan in 1992, because of HW’s violation of his tax pledge; but in ’92 and ‘96 he had a more natural base in the protectionist states of the midwest and the immigration-fearing ones of the south and west. His failure to go further in either year (much as it pains me to admit this) wasn’t because of any nationwide unpopularity of his ideas among Republican primary voters.

3) The establishment candidates change after the scare they get in New Hampshire; they stop taking the voters for granted, rise to the challenge posed by the upstart, and emerge as stronger candidates for it. I think this might well be true of, for example, W. in 2000 (where ‘stronger’ only means ‘more effective on the campaign trail, with a willingness to win ugly’). But I have a hard time seeing it as true this year. If Kerry turns out to be the nominee, then-as Noam Scheiber has argued-Dean won’t really have done the work of making Kerry a better candidate. If Dean is to pull out a victory now, he will certainly have to become a more effective candidate; but I just don’t see that happening.

4) New Hampshire voters just really hate Bushes and Doles. After all, they could barely bring themselves to vote for W. in the general election, despite the state's substantial Republican advantage in registration. In all five contested Republican primaries dating back to 1980, the establishment candidate who got embarrassed was a Bush or a Dole. If that’s all there is to the ‘good scare’ pattern, then nothing follows for this year’s Democrats.

Drawing implications for this year's race is oddly difficult. Of course, this year's race is odd. The standard list of character types is missing some exemplars this year, and there aren't any absurdly implausible candidates among the leaders. There's no one in the Pete DuPont/ Paul Tsongas/ Bruce Babbitt role of the charismaless earnest policy wonk filled with running entirely on the strength of serious thoughts about making government better, not at all on resume or character claims (except insofar as the wonkishness is itself the character message). The 1996 (though not the 2000) incarnation of Steve Forbes had this sort of campaign, too. These guys never went anywhere in the long term. But they simultaneously helped to elevate the intellectual tone of the early stages of the primary season and to provide inadvertent entertainment through the haplessness of their candidacies.

The utter-nutcase role previously played by Pat Robertson, Alan Keyes, Gary Bauer, Bob Dornan, and Jerry Brown is only inadequately filled by Dennis Kucinich and Al Sharpton. Sharpton's too smooth. He's a tremendously effective speaker. He's not the candidate most likely to say something utterly bizarre in a debate; he's among the least, as he knows what he's doing with words. (That only makes some of the things he's done with words worse.) And Kucinich is too invisible, making much less of a public impression than nutcases past. Similarly, Howard Dean, angry though he may be, is no Pat Buchanan.

But the role of the Establishment Candidate--occupied by Mondale, Bush pere and fils, Gore, and Dole--is also not quite filled. Lieberman should be the heir apparent, according to traditional rules. A year ago John Kerry was assumed to have a lock on the role. But Howard Dean now has the money, the union support, and the endorsements, while the Clintonite establishment is split between Clark and Edwards.

New Hampshire traditionally provides the campaign's darkest hour for the establishment candidate who goes on to win the nomination. This makes it a little surprising that the state has managed to hold onto its primary; it can't be much beloved in either party's headquarters. If Dean somehow pulls out a victory in the coming weeks based on his resource bank, the pattern will hold. If not, maybe that will show that New Hampshire's voters became a little less idiosyncratic this year, and thereby undid the Dean phenomenon they had done so much to create.

 
[David Bernstein, 1/27/2004 05:07:18 PM]
Libertarianism and the Law Students The Federalist Society has always been a coalition between conservative and libertarian lawyers and law students. However, judging from the folks I met at national student conferences when I was in law school (88-91), the libertarians in those days were concentrated at the "elite" law schools. Harvard, Yale, Chicago, all had substantial minorities (or in Chicago's case, sometimes majorities) of libertarians in their organizations, but once one got past the so-called top 15 schools, active Federalist Society members were almost all standard issue conservatives, with nary a libertarian to be found. Judging by my experiences lecturing at many Fed Society student chapters over the last few months, times have dramatically changed. Quite a few chapter leaders have either mentioned to me that they are libertarians, or made comments that made it clear that they have libertarian views. In part, there is undoubtedly a selection effect involved: Fed Societies with libertarian leaders are more likely to invite a libertarian speaker like myself. But for the most part, my speaking schedule has been dictated by a prearranged travel schedule. My impression is that chapter leaders are now as likely to be libertarians as conservatives (with the caveat that I have mostly spoken in large cities, where religiousand therefore conservative influence is less substantial). If I'm right that current poliltically active "right-wing" law students' intellectual heroes are as likely to be Richard Epstein or Randy Barnett as Robert Bork or Nino Scalia, this has some interesting implications for the future of Amercan jurisprudence.

 
[Eugene Volokh, 1/27/2004 04:16:05 PM]
Crime-facilitating speech: I've finally finished up a draft of my Crime-Facilitating Speech article that I'm ready to show the world. There are still a few substantive points that I need help on (marked in the piece), and I'll have to do a lot of editing. What's more, the piece is nearly 120 pages, which is too long (though fortunately p. 3 tells you how you can find the roughly 60 most interesting ones). Fortunately, I won't be sending around the article to the law reviews until early March, so I still have some time to improve it.

 
[Eugene Volokh, 1/27/2004 12:14:46 PM]
Another false arrest by the language police: A reader writes to complain about "quote" being used as a noun to mean quotation; the reader says that it's a "made up" word.

     Well, if it's made up, that's only in the sense that all words were made up. My Oxford English Dictionary lists quote as a synonym for quotation, dating back to the late 1800s. My Random House (2nd ed. 1987) does the same. So does Merriam-Webster Online (see entry 2). One may, if one chooses, conclude that it's inelegant, though I can't see why, since it's clear and short. But it's a perfectly correct word.

     A broader point: Lots of words that people claim "just aren't words" most definitely are words, under any reasonable test of "wordness." They are in all the leading dictionaries, and are not listed as nonstandard. Again, this doesn't mean that one should use them; there may be good reasons to avoid them. But don't say that they aren't words, or that they are "made up."

 
[Eugene Volokh, 1/27/2004 10:57:05 AM]
Profession: How can you determine from this map the profession of the person who decided how the map would be divided into the various colors?



Answer is here. No fair drawing inferences from the character of the organization that put up the map; just consider the map itself, plus of course whatever other knowledge you might have about the ways in which the country can be divided.

 
[Eugene Volokh, 1/27/2004 10:24:56 AM]
"Just Say No to Drugs" posters would be forbidden in UCLA dorms: I just came across (via speechcodes.org) this policy in the 2003-2004 On Campus Housing Student Handbook:

"D.8 Posting and Distribution of Materials . . . . c. Materials may not contain direct or indirect references to alcoholic beverages or illegal drugs; lewd or sexually explicit conduct; or criminal activity."

     This clearly prohibits "Just Say No to Drugs" posters (direct reference to illegal drugs), flyers for anti-domestic-violence rallies or workshops (direct reference to criminal activity), ads promoting marijuana legalization or promoting debates on marijuana legalization (direct reference to illegal drugs and criminal activity), and probably safe sex workshops (direct or indirect reference to sexually explicit conduct). Maybe the university may constitutionally impose such a broad restriction, though I doubt it, given the designated public forum doctrine. But is it really a sensible restriction to impose -- and is it really meant to be enforced that way?

     I assume the answer is "no" and "no"; presumably the policy is intended to cover a much narrower zone of speech than its text specifies. But exactly what zone?

     Only speech that advocates use of alcohol, use of drugs, or criminal activity, or that includes jokes that refer in a favorable way to alcohol, drugs, criminal activity, or sexually explicit conduct? Well, first, even if that's what the policy means, that's not what it says, and there's no way for students or administrators to know that it's what it means. And, second, that would be unconstitutional. Even if the dorms and their walls are treated as nonpublic fora (as opposed to designated public fora), the government still may not impose viewpoint-based speech restrictions there -- and the narrower interpretation of the policy would be unconstitutionally viewpoint-based.

     I understand the school's sentiments; and I understand why a university may want to take a paternalistic attitude to its young students. But the First Amendment doesn't allow it to implement its paternalism through this sort of speech restriction. The University certainly has ample legal power to punish students for actually illegally drinking alcohol, using drugs, engaging in crime, or engaging in public lewd or sexually explicit activity. It has no business, I think, telling students what they may or may not say about such conduct, even in material posted or distributed in on-campus housing.

 
[Eugene Volokh, 1/27/2004 10:16:35 AM]
UCLA endorsing the theological views of the Metropolitan Community Church: A quick google search suggests that the opening paragraphs of the UCLA administration Web page endorsing a particular religious viewpoint on homosexuality is actually drawn from "Homosexuality; Not A Sin, Not A Sickness; What The Bible Does and Does Not Say," by Rev. Elder Don Eastman, which seems to be a document generally distibuted by the Metropolitan Community Church. I stress again that I have no objections to the viewpoints itself, or to homosexuality generally -- but it does seem to be that UCLA ought not be endorsing a particular church's religious perspective.

     Incidentally, the Web page does not credit Rev. Eastman, or anyone else, for those words. I realize that the page isn't itself an academic enterprise; and it might be that Rev. Eastman or his representatives specifically allowed them to quote him without attribution. Still, it seems to me that, especially within a university, it might be fairer to provide credit to those whose words are used.

 
[Tyler Cowen, 1/27/2004 07:21:46 AM]
New blog on sports and technology: It is one of the Corante group, www.corante.com/transition, the blogger is Nick Schulz of TechCentralStation.com fame. Read about the politics of steroids, how athletes calculate [disclaimer: this post praises my writings], and sex change operations in the former East Germany.

Why a serious sports blog? Sports is both big business and a significant part of American and global culture. I think of sports as a form of drama, except the events in question really matter to the participants, rather than stemming from a staged script. I question the common elitist view that sports are somehow inferior per se to high culture. It is no accident that Jacob Levy and Matt Yglesias, two of the best bloggers, both comment on sports in their blogging. Sports also raise interesting questions about how we evaluate quality. As for my sports tastes, they run heavily toward professional basketball. My question for Nick's blog is the following: why does overall NBA attendance and interest seem to go up when we see one or two dominant teams (e.g., the former Celtics, Lakers, and Bulls) rather than a so-called "competitive balance"? Do fans really look to a sports season to see a long coronation march, perhaps punctuated by one final dramatic showdown?

 
[Sasha Volokh, 1/27/2004 07:16:07 AM]
Movie recommendation: I just saw The Castle, an Australian movie about a guy who fights the government when it tries to take his home.

First, it has a positive social message -- Institute for Justice had a screening of this movie in New London, Conn., during its anti-eminent domain battle there.

Second, it's really funny -- (1) in the depiction of the very lowbrow and tasteless (but heart-of-gold) family that actually enjoys living next to an airport runway and under power lines (which symbolize man's ability to produce electricity), (2) in the youngest son's deadpan voiceover, and (3) in the character of the not-quite-competent small-time attorney who tries to make arguments that the taking is unconstitutional because of the "vibe" of the Constitution. (This last is, of course, also typical of non-lawyer libertarians, conservatives, liberals, and everyone else, but it's forgivable when you're not actually trying to argue in court.)

Third, it's got Anthony Simcoe in a supporting role, not quite recognizable as the same guy from the campy Australian sci-fi series Farscape, which Hanah has been having me watch quite a bit of.

Watch the whole thing (you can get it on Netflix).

UPDATE: I third this. Also, reader Kevin Law likes Farscape and disputes that it's campy.

UPDATE 2: Reader Kevin Baker also disputes campy: "It was one of the most cleverly-written and original series I've ever seen, and I enjoyed it immensely. Granted, it takes probably five or six sequential episodes for a viewer to immerse himself in the Farscape universe, but it was great fun to watch."

 
[Sasha Volokh, 1/27/2004 07:14:54 AM]
I agree with Mark Kleiman on the Dean Scream.

 
[Eugene Volokh, 1/27/2004 06:33:03 AM]
Jews, homosexuals, Canadians, left-handers, and libertarians: Randy's post reminds me of a riddle I came up with several years ago -- what do Jews, homosexuals, Canadians, left-handers, and libertarians have in common?

     Answer: They spend a lot of time talking about who is Jewish, homosexual, Canadian, left-handed, or libertarian, but is not widely known to be so. Gwyneth Paltrow is half-Jewish. Yes, but did you know that William Shatner is actually Canadian? (And a Jew!) Oh, but Drew Carey is a libertarian. . . . (I do not know whether the other groups have an equivalent of the Hannukah Song, though.)

     (There's even a good theoretical explanation for this: Each group is (1) a minority that's (2) not very visible, (3) feels oppressed (in the Canadians' case, by being ignored), and (4) thinks of itself as superior.)

 
[Randy Barnett, 1/27/2004 06:00:48 AM]
Clint Eastwood Outed in USA Today: From this interview:

So, socially, you're live-and-let-live. How about politically?

I suppose. I don't see myself as conservative, but I'm not ultra-leftist. You build a philosophy of your own. I like the libertarian view, which is to leave everyone alone. Even as a kid, I was annoyed by people who wanted to tell everyone how to live.

This made my day. (Well not really.)

 
[Eugene Volokh, 1/27/2004 02:43:49 AM]
Likely Establishment Clause violation: The UCLA Lesbian Gay Bisexual Transgender Campus Resource Center -- which is apparently part of the UCLA administration, and not just a student group -- provides the material quoted below on its Web site. Readers of this blog are likely aware that I have no moral objections to homosexuality; and I sympathize with the desire to make students who might be troubled by their sexual orientation feel more comfortable with it. But the Supreme Court's Establishment Clause caselaw (whether it's right or wrong) makes clear that government agencies may not endorse any particular religious viewpoint (with a narrow exception for firmly established traditions, see Marsh v. Chambers (1983)), even in the service in the best of public policy goals; see the majority opinion in County of Allegheny v. ACLU (1989):

[T]he prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S., at 70 (O'CONNOR, J., concurring in judgment) (emphasis added). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S., at 27, 28 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas"); Edwards v. Aguillard, 482 U.S., at 593 ("preference" for particular religious beliefs constitutes an endorsement of religion); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"). Moreover, the term "endorsement" is closely linked to the term "promotion," . . . and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite," Epperson v. Arkansas, 393 U.S. 97, 104 (1968). . . .

Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S., at 687 (O'CONNOR, J., concurring).

So this statement by a public institution seems like a pretty clear violation to me:

Homosexuality and Religion

All of God's promises are intended for every human being, including lesbian, gay, bisexual, and transgender people. How tragic it is that many religious institutions have excluded and persecuted people who are not heterosexual.

We are all created with powerful needs for personal relationships. Our quality of life depends upon the love we share with others, whether family or friends, partners or peers. Yet lesbian, gay, bisexual, and transgender people facing hostile attitudes in society often are denied access to healthy relationships. We are called upon to find ultimate meaning in life through our spiritual selves as well as our physical and emotional selves, which can bring healing and strength to all of our relationships.

"The issues about homosexuality are very complex and not understood by most members of" religious organizations, according to Bernard Ramm of the American Baptist Seminary of the West. This evangelical authority on biblical interpretation says that, "To them, it is a vile form of sexual perversion condemned in both the Old and New Testaments." But as Calvin Theological Seminary Old Testament scholar Marten H. Woudstra says, "There is nothing in the Old Testament that corresponds to homosexuality as we understand it today" and as Southern Methodist University New Testament Scholar Victor Paul Furnish says, "There is no text on homosexual orientation in the Bible." Says Robin Scroggs of Union Seminary, "Biblical judgments against homosexuality are not relevant to today's debate. They should no longer be used...not because the Bible is not authoritative, but simply because it does not address the issues involved...No single New testament author considers homosexuality important enough to write his/her own sentence about it." Evangelical theologian Helmut Thielicke states, "Homosexuality...can be discussed at all only in the framework of that freedom which is given to us by the insight that even the New testament does not provide us with an evident, normative dictum with regard to this question. Even the kind of question which we have arrived at ... must for purely historical reasons be alien to the New testament."

Ideas and understandings of sexuality have changed greatly over the centuries. People in biblical times did not share our knowledge or customs of sexuality; we do not share their experience. In those days there was no romantic dating as we know it today; marriages were arranged by fathers. The ancients, as MIT's David Halperin notes "conceived of 'sexuality' in non-sexual terms: what was fundamental to their experience of sex was not anything we would regard as essentially sexual. Rather, it was something essentially social - namely, the modality of power relations that informed and structured the sexual act." In the ancient world, sex was "not intrinsically relational or collaborative in character, it is, further, a deeply polarizing experience: It serves to divide, to classify, and to distribute its participants into distinct and radically dissimilar categories. Sex possesses this valence, apparently, because it is conceived to center essentially on, and to define itself around, an asymmetrical gesture, that of the penetration of the body of one person by the body, and specifically, by the phallus, of another ... The proper targets of sexual desire include, specifically, women, boys, foreigners, and slaves - all of them persons who do not enjoy the same legal and political rights and privileges that (the perpetrator) does."

And yet in spite of all this, some preachers continue to use certain Biblical verses to foster and maintain discrimination against lesbian, gay, bisexual and transgender people. There are two verses that refer to male homosexuality - Leviticus 18:22 and 20:13. "Abomination (TO'EBAH) is a technical cultic term for what is ritually unclean, such as mixed cloth, pork, and intercourse with menstruating women. It's not about a moral or ethical issue. This Holiness Code (Chapters 17-22) proscribes men "lying the lyings of women." Such mixing of sex roles was thought to be polluting. But both Jesus and Paul rejected all such ritual distinctions (Mark 7:17-23; Romans 14:14,20). The Fundamentalist Journal admits that this Code condemns "idolatrous practices" and "ceremonial uncleanness" and concludes: "We are not bound by these commands today."

These commands, of course, included eating sheep, goats, rabbit, pork, lobster, scallops, and shrimp; short hair on men, wearing two kinds of materials; and demanded circumcision on all male babies who were eight days old.

Other Biblical Issues no longer relevant include:

A stubborn or rebellious son shall be brought to the authorities and stoned to death (Deut. 20:11)

The citizens of cities which surrendered during wartime are to be made slaves (Deut. 20:11

If a man marries a woman and discovers she is not a virgin, she is to be stoned to death (Deut. 22:13)

An unmarried man who sleeps with an unbetrothed virgin must marry her (Deut. 22:28)

Wives must obey their husbands (Eph 5:22)

People who divorce, then remarry, commit adultery (Matt 5:3, 19:9, and Mark 10:11)

Slaves will always be slaves (Lev 25:44)

Slaves must obey their masters (1 Peter 2:18)

Slaves should remain slaves, and not be bothered by their condition (1 Corinthians 7:21)

The Bible has nothing specific to say about homosexuality. Surely, if homosexuality were so important, Jesus would have said something about it. But he did not. However, the Bible has plenty to say about God's grace to all people and God's call to justice and mercy. People of God are called upon by God to love one's neighbor as oneself. Perhaps it is that sense of self-love that needs to be sought before one condemns another.

Monday, January 26, 2004

 
[Eugene Volokh, 1/26/2004 08:16:49 PM]
Freedom from aggravation: The Macalester College speech code provides "The College recognizes the complexity of defining language and actions that are not acceptable in a community which values freedom of expression. Freedom of expression does not include the right to intentionally and maliciously aggravate, intimidate, ridicule or humiliate another person." There's more, but nothing quite as good as the "aggravat[ion]." (Thanks to InstaPundit for the pointer.)

 
[Sasha Volokh, 1/26/2004 09:28:55 AM]
Real-estate ad, again: I had excellent reasons for posting this ad on Saturday, but of course blogs have fewer readers on Saturday, so here goes again, if you're looking to buy my charming condo in Cambridge, Mass.:

Are you moving to Cambridge? I'm looking to sell my apartment and move out by June. Two bedrooms (one of them large, and a study that can work as a third bedroom), two bathrooms, two working fireplaces, building with historic charm, many new fixtures. On Mass. Ave.; two minutes' walk from Harvard Yard, five minutes from the Harvard Sq. T stop, ten minutes from Harvard Law School. Roughly 800 sq. ft. I've had a wonderful time living here for the past five and a half years.

Write me e-mail if you're seriously interested.

 
[Jacob Levy, 1/26/2004 08:35:37 AM]
Kerry: Michael Crowley's (subscription-only) TNR article about Massachusetts Democrats having no real enthusiasm for Kerry is, as far as I can tell, spot-on. The same goes for a lot of New Hampshire Democrats I know. Having grown up in the part of New Hampshire that's part of the Boston media market, I can report: Kerry does not wear well with time. Mickey Kaus' entertaining obsession with this fact has led him, and his correspondents, to try to articulate just what it is about Kerry that becomes so grating over time, and he's done as good a job as anyone. I certainly can't articulate it myself. But I do know that he wears on the nerves, a lot.

The trouble is that that knowledge left me blindsided by Iowa. The last thing I expected was that Iowa voters would get less sick of Kerry over time. I think that in part they got so overwhelmed by Dean and Gephardt that they were still more sick of the latter two. But in a fair fight with the voters having equal exposure to all of the candidates, I have confidence that Kerry would have worn out his welcome. (Gephardt, whose politics I have made no secret of viewing as actively evil, is a far more pleasant person to listen to and, in my limited experience, interact with.)

Now Kerry seems sure to win New Hampshire tomorrow. But it seems joyless, dutiful. New Hampshire Democrats are lining up behind him in something the way that Crowley describes Massachusetts Democrats as doing-- and in much the same way that so many Republicans lined up behind Bob Dole in 1996. The voters have tried the passionate enthusiasm thing with Dean, and worn themselves out; they're now kind of collapsing back to Kerry out of exhaustion, as a default. The "Dated Dean, Married Kerry" buttons don't fully communicate the dynamic, not without some tweaking. After dating a fiery, passionate guy who now seems a little nuts, these voters are lovelessly marrying the nearest single guy who seems basically grown-up and stable-- someone who is boringly familiar but at least a known quantity. Maybe that will be enough to carry Kerry to the nomination. But ultimately I think it's the path to Bob Dole's electoral fate.

UPDATE: I think what I said above overlaps a lot with Noam Scheiber's analysis.

Last summer, Dean seizes the front-runner mantle from Kerry and runs up an early lead in Iowa and New Hampshire, locking up large numbers of committed supporters. The effect is to make it difficult not only for Kerry to get traction in the race, but for any other candidate to get traction, as well. Then Dean proceeds to melt down--which sends people scurrying back to Kerry, who, as the former front-runner, is best positioned to re-absorb their support. (Again, no one other than Kerry has had a chance to emerge as an alternative to Dean during all the months Dean is padding his lead. Because of that, Kerry remains the de facto alternative.) And then, to cap things off, the instant conventional wisdom about how Dean (and Gephardt) lost Iowa is that they were too negative--which makes every candidate reluctant to criticize the new front-runner from this point forward. In a nutshell, Dean took a lot of voters out of play early and sat on them, then handed them over to Kerry just before the voting started, then made it virtually impossible for anyone to win them back. Kerry, as the beneficiary of such an incredible set of circumstances, does not strike me as a battle-hardened candidate. He strikes me as an extremely lucky SOB.

 
[Randy Barnett, 1/26/2004 07:08:05 AM]
Book Tour Continues in Virginia: The book tour for Restoring the Lost Constitution: The Presumption of Liberty continues this week in Virginia:

Tuesday January 27th
University of Virginia School of Law (Charlottesville), 4:20pm

Wednesday, January 28th
Washington & Lee School of Law(Lexington), noon

Thursday, January 29th
William & Mary School of Law(Williamsburg), noon

All talks are open to the public and lunch talks usually feature food. Room locations should be posted on signs when you get there. Let me know that you are a Volokh Conspiracy reader as others did in DC last week.

NEXT WEEK:
New York: Cornell, NYU & Columbia
DC: Cato Institute Book Forum (free registration)
Chicago: John Marshall

 
[Tyler Cowen, 1/26/2004 05:41:06 AM]
One reason why your cell phone sometimes fails you: I just attended a three-day arts policy conference in the Berkshires. Not only was Internet access scarce but my cell phone often didn't work either. Fortunately I am sufficiently balanced not to have felt frighteningly alone.

The telecommunications reforms of 1996 were supposed to prevent local governments from banning cell phone towers. Yet in just one U.S. District Court (Boston), cell phone carriers must go to court once every eighteen days, on average, to overturn tower rejections by local officials. Here is the full story.

The good news: The rate of required lawsuits was twice as high in 2000. Carriers are now more willing to disguise towers in flagpoles, rooftop elevator shifts, or as fake pine trees. A tree is no longer always a tree, check out this picture and story.

And the public choice angle? One source notes the following:

"The exact people who want cell phones are the ones who complain the most about the towers," says Doug Gunwaldson, director of common network access management at AT&T Wireless.

In other words, as is so often the case in politics, we are the source of our own problems.

Sunday, January 25, 2004

 
[Jacob Levy, 1/25/2004 08:48:39 PM]
Hopeful signs: Inklings of good news on both the election front and the Oscar front.

Lieberman passes Clark and Edwards in NH poll.

Return of the King picks up every Golden Globe it was nominated for, including best picture (drama) and best director (drama).

UPDATE: Yes, I do realize that the stupid "Joe" puns, one of which is in the headline of the article linked to above, are evidence of Lieberman's astonishingly tin ear, hopeless dorkiness, or both. He's not actually a talented politician, which means that in importamt ways he couldn't be an effective president. I'll continue to root for him on policy grounds; but even I don't like listening to him talk, and much as I like the New Hampshire primary, it's not in the set of things worth a "fight to the death," as he put it in the debate.

 
[Randy Barnett, 1/25/2004 08:27:37 PM]
Reynolds on Bush's Vulnerability: Glenn Reynolds on Instapundit has this to say about President Bush's prospects for reelection:

I'VE BEEN SAYING FOR A LONG TIME that Bush is vulnerable in 2004, regardless of how confident the GOP seems to feel. (Here's an old post on that, but just enter the words bush and vulnerable in the search window to see a lot more). Now Tacitus is weighing in. Even this, rather optimistic charting shows Bush trending downward. I think that's because the big-spending, "compassionate conservative" stuff is alienating more conservatives and libertarians than it is winning over undecideds.

Projecting the 2004 elections based on today's polls is a fool's game -- you'd think that Iowa would have taught people how volatile polls are -- but that doesn't mean that Bush's people should be overly confident. And as for those Bush/Churchill analogies, remember what happened to Churchill the minute people felt safe.

Glenn must have been talking to my dad.

 
[Juan Non-Volokh, 1/25/2004 05:41:46 PM]
Liberals, Anti-Communism & Learning to Read: In an exchange about my post quoting a 1952 Irving Kristol essay, Brad DeLong redefines priase to encompass calling someone a "vulgar demagogue" but "unequivocally anticommunist." Funny. I always thought to praise someone you had to say nice things about them.

I suspect DeLong's commentary is due, at least in part, to his contemporary opinion of Kristol -- and his dislike of Kristol's worldview may well be justified. (I have plenty of disagreements with Kristol myself, especially in the context of free speech and civil liberties.) But it's worth reiterating that when Kristol wrote the words I quoted -- 1952 -- he was still considered a man of the Left, albeit the anti-communist Left. Whether Kristol has since genuinely praised McCarthy or not, I have no idea, but I remain flabbergasted that DeLong thinks the language I quoted constitutes praise.

UPDATE: A reader is "puzzled" by DeLong's post, as "What does the fact that McCarthy was crude, opportunistic, and ineffective have to do with the stance of many liberals/progressives in 1952?" He goes on to note that "Kristol was writing soon after the Wallace campaign of 1948. Many liberals went for the Progressives because they were appalled by the foreign policy of Acheson, Marshall, and Truman. Seems somewhat disingenuous to cite the record of A/M/T in order to prove the anti-communist bona fides of Arthur Miller or The Nation." The reader concludes, just because McCarthy was wrong to accuse Acheson, Marshall, and Truman of treachery, "that doesn't make Alger Hiss innocent or Lillian Hellman a persecuted liberal."

 
[Sasha Volokh, 1/25/2004 04:36:24 PM]
A neat little application that gives you a map of the U.S. where you can paint the states you've visited in red. (Of course, you can use red to highlight states that fulfill any criterion you like, not just whether you've visited them.)


create your own visited states map
or write about it on the open travel guide

UPDATE: Reader Matt Johnson points out that the World66 folks think that D.C. is between New Jersey and Delaware.

UPDATE 2: An anonymous reader points out that this map is also good for graphically keeping track of where your concealed carry permits are valid.

UPDATE 3: This isn't that big a problem with the map of the U.S., but these guys also have a map of the world where you can mark countries you've visited, and of course if you even go to a tiny bit of Canada or Russia, you get to color in a huge swath of the world. I get to color in Canada because I've been to Montreal twice and New Brunswick once. But I've never been to Russia, whereas others who have visited it once get this huge leg up! Now does that seem right? Maybe there should be something that gives you a dot around each exact place you've been, so if you go to St. Petersburg, it colors in just as much as if you visit the Vatican.

UPDATE 4: Clearly, just being in an airport shouldn't count, right? (If it did, I don't think it would affect the states I could count. But it would allow me to add some countries to the countries map, like Portugal, Peru, and the Netherlands.) But of course, this opens up all sorts of arbitrarinesses. First, what about train stations? On the one hand, they're like an airport. On the other hand, you do pass through the countryside and actually see stuff. But really, should that be enough to count a state? And if not, then what about just driving through? The driving-through test is why I get to count Idaho and Wisconsin, for instance, but why is driving through any better than taking a train through? And if just driving through doesn't count, what if I stopped at a gas station/mini-mart? Or what if I was only in the state long enough to stay in a hotel overnight (Ohio)? Or what if in addition to staying in a hotel overnight, I used a laundry service (Minnesota)? All these are questions for you to resolve between yourself and your God.

 
[David Bernstein, 1/25/2004 11:37:59 AM]
Kudos to Delta: I was scheduled to leave tonight on an 8:05 pm flight to Atlanta (I'm speaking at Emory Law tomorrow at noon, and at Georgia State at 5:00), but the weather forecast predicts heavy snow by that time. I called Delta, and they rescheduled me without demanding a change fee of any sort. Such flexibility with regard to prospective weather concerns has not, in my experience, been the norm with airlines. Self-defeatingly, they refuse to reschedule passengers, and then have to deal with thousands of stranded individuals. For example, eight years ago, the annual law professors' conference was held in San Antonio, and scheduled to end on a Sunday. By Saturday, CNN was predicting a blizzard in the Northeast Sunday morning. While some attendees managed to get out early, I heard other stories of airlines that insisted that to leave on Saturday, a new full-fare ticket would have to be issued, costing over $1,000. Needless to say, neither the airlines nor the passengers were happy when 2 feet of snow fell on the Northeast and folks couldn't get home for several days. So, kudos to Delta for customer service and common sense.

 
[Jacob Levy, 1/25/2004 11:36:06 AM]
NH primary continued: Throwing out all norms of either scholarly reliance on data or journalistic ethics, I'm going to confirm Ryan Lizza's impression of Edwards' NH strength by relying on my mother, a NH Democrat and Edwards volunteer. She was a pretty diehard Clintonophile (always talking about how charismatic and electrifying he is in person; NH voters have views about things like that), and always encouraged me in my early activism, but she's never signed up to do stuff herself before. And, being a Democrat in New Hampshire, she's had a long time to learn habits of discouragement, of thinking that the candidate she likes usually loses. She's giddy with excitement about Edwards, getting up early in the morning to to events and work on the campaign, and thinks that people are getting progressively more excited about him very quickly.

Relying on one's mom, who is herself not a disinterested source, is of course the height of anecdotalism. But rather a lot of primary-coverage journalism relies on one or two enthusiastic 'ordinary voter' types, so, what the hey.

(NB: This does not indicate excitement about Edwards on my part. I stand by my insistence that it takes more than a drawl to turn an Old Democrat into a New Democrat.)

 
[Jacob Levy, 1/25/2004 11:19:47 AM]
Academic conventions: My favorite sentence from this utterly delightful John Holbo essay on literary studies, good and bad writing, theory, and the MLA:

Doubts about the correctness of the paper's conclusions do not fall within the scope of the paper, as it were.

Damn. I wish I'd written that.

UPDATE: I got to the end, noticed the trackbacks, and saw that Matt Yglesias had highlighted the same paragraph.

 
[Juan Non-Volokh, 1/25/2004 08:29:39 AM]
Sunday Song Lyric: For a slight change of pace, I thought I'd start offering up a song lyric or two each Sunday. For today, I settled on something by one of America's greatest songwriters of all time, Hank Williams Sr. Although he never saw his 30th birthday, Williams left an astounding musical legacy. He was much more than a "country music singer." His work has influenced countless artists across a wide range of musical genres.

Hank Williams' songs were often melancholy, reflecting the sadness and despair he experienced throughout his short life. So it's only appropriate to pick a lyric that embodies such emotions: I'm So Lonesome, I Could Cry.

Hear that lonesome whippoorwill
He sounds too blue to fly
The midnight train is whining low
I'm so lonesome I could cry

I've never seen a night so long
When time goes crawling by
The moon just went behind the clouds
To hide its face and cry

Did you ever see a robin weep?
When leaves begin to die
Like me he's lost the will to live
I'm so lonesome I could cry

The silence of a falling star
Lights up a purple sky
And as I wonder where you are
I'm so lonesome I could cry

Next week, I promise to pick something more contemporary, and a bit more uplifting.