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Saturday, July 27, 2002


THE HOBGOBLIN OF LITTLE MINDS: Sam Heldman comments on a proposal to cap non-economic damages in medical malpractice cases. He says:

Imagine it's 2000. The Congress (believe it or not) has passed, and President Clinton has signed, a law -- under the authority of the Commerce Clause, with vigorous findings to the effect that insufficiently-careful physicians cause many injuries which put a drain on America's productivity -- declaring that, in every state-law malpractice case in which the jury finds for the plaintiff, the judgment must include AT LEAST $250,000 in non-economic damages.

How long would it take the Federalist Society grownups to convince the U.S. Supreme Court that this was was (a) beyond the authority conferred by the Commerce Clause; (b) a violation of the 10th Amendment; (c) whatever else necessary, including that it violated the 7th Amendment as to cases tried in federal court? I think it's fair to say that the answer is "about five seconds."

So how can the result be different as to the President's mirror-image proposal? Even though I don't personally love medical malpractice litigation, this bothers me.

A good point, but it proves too little. All we've proved -- assuming the hypo is right -- is that conservatives can be inconsistent. Big whoop-de-do. But which one of these conservative positions is wrong?

In reality, there are several possible lines of thought. Let's be a little rigorous and separate the substantive views from the procedural views.

On the substance, let A represent "med-mal damages are too high" and B represent "med-mal damages are just fine." (Let's assume away group C which thinks damages are too low, but only for simplicity.) I'm probably in B, though I don't have enough information on this. My sense is that the threshold question of liability is out of control -- I think there should be more contract in tort, and assumption of risk ought to be a much stronger defense -- but I don't know that there's anything wrong with how damages are calculated or with the inclusion of non-economic damages. For all I know, damages are neither too high nor too low. I'm willing to take arguments though.

Now, on the procedure, let 1 represent "whatever gives us the substantively best policy is the best" and 2 represent "whether the statute is constitutional is the most important." Within 2, we'll define 2a as ". . . and federal statutes regulating state tort damages are constitutional" and 2b as ". . . and federal statutes regulating state tort damages are unconstitutional."

I don't like these statutes on constitutional grounds, but they look like winners under current Commerce Clause doctrine, and the Commerce Clause defense of these statutes is quite non-ridiculous, especially if you take a broader view of the Commerce Clause than I like to.

So here we are with a bunch of possible groups -- A1, A2a, A2b, B1, B2a, and B2b, and I stopped there just to keep things simple. I call myself a B2b, so I would oppose both statutes. Folks from A1 or A2a would favor the damage-cap policy (and would oppose the damage-floor statute, but not on constitutional grounds). Meanwhile, folks from A2b or B2b would oppose the hypothetical damage-floor statute on constitutional grounds (and also oppose the damage-cap statute). That is, different people, not inconsistent people. (B1 and B2a would oppose both statutes on policy grounds.)

Anyway, which one of all these positions is right? (Here, feel free to put yourself into group C, which thinks damages are too low.) Maybe there are inconsistent conservatives, or maybe these are just different conservative groups warring with each other; anyway, I've now given the positions names, so these intellectual positions exist independently of any actual people who hold them. Let's not let our positions be driven by someone else's supposed or real inconsistencies, O.K.?

UPDATE: Sam has responded to this post. First, he agrees that we shouldn't expect or be bothered by disagreement among conservatives, but he suspects that even individual conservatives are inconsistent, including possibly the President. I think the President is more an A1 than an A2 -- I think he, like most politicians, cares more about getting the policy right than about following what seems like formalities. This is unfortunate from us lawyers' point of view -- we're by and large #2 types, and we think politicians should be too -- but that's the fact. Second, Sam suggests that while Congress could preempt all state med-mal law with a single statute, it shouldn't be able to preempt just a single aspect of state law, like non-economic damages. The greater power doesn't include the lesser. He says this idea "may be paradoxical, wrong, or even silly" -- and I agree.

Meanwhile, reader David Skurnick puts his finger on the root of the problem -- the problem isn't that awards are high but that the wrong people have to pay (for example, obstetricians who weren't really at fault) or that the wrong factors are considered (larger awards from deeper pockets). Capping noneconomic damages is a very blunt instrument, a very poor second-best. (Now, I favor second bests in many situations, but first you have to show that the best isn't feasible.)

Reader Seth Farber notes that even if such statutes were held unconstitutional, as a "b" would want, Congress could still "impose" the same policy on the states through the spending power, i.e. "limit noneconomic damages in med-mal cases, or no highway funds for you!" It's true that there are basically no constraints on strings attached to the spending power. But as I noted above, I think even the statutes as they are would be constitutional under current Commerce Clause doctrine. Still, the spending asymmetry does exist in other cases -- Congress could have "imposed" a gun-free school zones policy or an anti-violence against women policy by threatening to withhold funds -- which is why I think we need constraints on the spending power to track constraints on the regulatory power.


THE KENNEDY DYSLEXICON: Maryland Lieutenant Governor Kathleen Kennedy Townsend is a rising star in the Democratic Party. She's running for Governor, and is often talked about as a potential VP candidate. Despite her political pedigree and Ivy League education, she often comes across as a complete dolt. Consider a few of the many examples contained in Matt Labash's KKT profile from The Weekly Standard:
"[A]t an address to Hispanic activists, she spoke of the need to hire people who "speak Hispanish" because "Hispanic is an important language to learn." While addressing gay-rights supporters, she referred to a nearby statue of Thurgood Marshall as a "statute." Twice. One reporter wrote of having to explain to her what the word "fatalist" meant. Another wrote of her lip visibly quivering when he pressed her for her position on slot machines (her staff told him she hadn't been feeling well that morning)."
Given the widespread coverage of our President's verbal gaffes, one would expect such flubs to be an issue during the gubernatorial campaign, but I wouldn't bet on it. After all, she is a Kennedy.


32 SHORT PROBLEMS WITH STEPHEN JAY GOULD: Here's an interesting debunking of the late Stephen Jay Gould -- not so much a debunking as a negative review of his recent book, The Structure of Evolutionary Theory, for its length, ponderousness, and repetitiveness; for its self-congratulatory and self-aggrandizing tone; and for its selective and tendentioius interpretation of evolutionary theory. I don't know whether the author, psychology professor David P. Barash, is correct on all this, but he sounds like he knows what he's talking about.


THE FRENCH: My friend Todd Seavey writes, in Health Facts and Fears, about French attitudes toward smoking and chemical risk. The National Health Institute for Prevention and Education ran a TV ad "that warned of a highly-toxic, carcinogenic product commonly consumed by millions of French people. 'Cyanuric acid, mercury, acetone, and ammonia have been found in a product regularly consumed,' said the ad. Viewers were invited to call a toll-free hotline to find out the identity of the product, which was, of course: cigarettes."

"The sweetly ironic part of the ad," says Todd, is that this is "rhetoric associated with the ongoing crusade against minor environmental risks," which are often trivial. People shouldn't be concerned about smoking because of trace amounts of chemicals; they should be concerned about smoking because it's known to kill you regardless of these extra chemicals. Or, the way I would spin this: knowing what chemicals are in an item is a very blunt and often inaccurate way of judging how dangerous something is -- the healthiest natural foods contain (natural) chemicals that are also carcinogens. Why even bother with or care about the chemical contents of a product when you have ample evidence of the actual consequences of using it?

Todd argues that people are very bad risk calculators, given their complacency about smoking and their disproportionate fear of "minute chemical residues and genetically-modified crops." He continues:

Indeed, it might be argued that those who understand risk assessment are under a special moral obligation to sound the alarm about smoking, not calmly accept the decision to smoke as final, a mere matter of subjective taste. An engineer would not sit calmly by while thousands of his fellow citizens, due to their poor grasp of math and physics, walked onto a bridge doomed to collapse and kill them all. He would loudly tell them they're making a mistake, even if many, in the end, refused to be deterred.

Here's where I don't understand. I'm willing to believe that people don't perceive risk rationally -- though even there, I'm not sure it's irrational to be more accepting of (1) risks that come with pleasurable products or (2) known risks that come with familiar products. The first is just cost-benefit analysis; the second is just risk aversion (who knows what unknown risks lie behind genetically modified foods?), together with some antipathy to social change (who needs these new-fangled genetically modified foods anyway?).

But, even if they do have irrational risk attitudes . . . why does that mean we should sound the alarm about smoking? Why not instead consider it one's moral duty to sound the alarm about the tiny risks which are misperceived to be large? Maybe people are saying, by their revealed preference in smoking, that they don't mind large risks; maybe they'd be happier not if they quit smoking but if they used more chemicals in other products. What do you want to do, live forever?

I'm not sure either discouraging smoking or encouraging other chemicals is a "moral imperative" for the person who understands risk assessment, but at least I don't see why mere risk misperception should make us focus on reducing smoking. The article doesn't claim that smokers underestimate the risks of smoking; there's some evidence that they overestimate these risks, which is admittedly controversial, but I'd like to see a discussion of that; in any case, it's pretty clear that people do overestimate the risks of industrial chemicals.

Also, there are other reasons why you might want to convince people not to smoke. Maybe people smoke too much because they misperceive their self-control abilities, and you think it's O.K. to reduce their smoking by skewing their risk perceptions in the opposite direction. Or maybe you share the public-health community's obsession with lengthening life, even though we're utility maximizers, not life maximizers. Anyway, the risk perception argument doesn't seem terribly strong to me.

P.S. Also see the interesting article in Health Facts and Fears, "Girls Worried About Weight More Likely to Smoke." First, it casts light on the possible rationality of smoking (though of course it doesn't say that). Second, it has an interesting discussion of how early cigarette advertising used to stress the weight-control advantages of cigarettes -- the 1910 Lucky Strikes campaign said, "First a shadow, then a sorrow; Reach for a Lucky Instead of a Sweet."

UPDATE: This isn't good enough to blog separately, but on similar issues, see this recent (March 2000) issue of Risk in Perspective from the Harvard Center for Risk Analysis, on whether contingent valuation is useful as a way of valuing lives saved in regulatory cost-benefit analysis.

Meanwhile, reader Stanton Brown says he read somewhere "that beer has 13 times more radiation than nuclear power plant waste water. But the best example of people failing to use benefit/cost rationality to assess risk has to be car mpg requirements. Or the idea that we have to reduce speed limits to 55 to save lives. Why not 45, or 35, or 20 and save even more lives? Oh -- there's a trade off involved! Imagine that."

UPDATE 2: Another reason to smoke: it's an antidepressant. (Thanks to reader John Coombes for the news.)

Friday, July 26, 2002


JONAH GOLDBERG ON PATRIOTISM: An excellent, thoughtful piece. I usually don't link to things that InstaPundit has already mentioned, since I suspect that most readers of this blog also read Glenn's (and if you don't, you should!) -- but this was so good that I thought it was worth an extra plug.


MORE SELF-SELECTION: On non-random polls, see this site describing the Landon vs. Roosevelt 1936 election.


SELF-SELECTED: A reader writes, in response to my criticisms of the USA Today-reported pledge of allegiance poll,
You wrote:

"(3) failed to make clear that this poll was self-selected and thus a completely invalid measure of the views of any group"

If self selected means that I choose my answer, then I would think that that would be the most valid method of gathering data. Filtered through the mind of a poll taker, wherein he/she selects from a group of answers after interpreting what I said seems to me to be less accurate and even invalid, depending on the views of the person taking the poll.

Maybe I don't understand it...or maybe they don't.
     I much appreciate the opportunity to clarify this: That a poll is based on a "self-selected sample" means that it only records those people who choose to answer it. This small group of voluntary responders is likely a highly unrepresentative fraction of the larger group whose views you're trying to infer -- for starters, they tend to be considerably more interested in the subject than those who didn't respond. The opposite of a self-selected sample would be a "random sample," in which a polltaker randomly chooses some fraction of the target group, but then of course records their own answers.

     Random samples can yield valid inferences about the whole group, if the poll is done right. Self-selected surveys cannot.


EVEN KAZAKHSTAN WOULD BLUSH: Read Jonathan Rauch on eminent domain (link through Stuart Buck).

UPDATE: Reader Andrew Lazarus reminds us of one of the "early" big eminent domain cases, Poletown in Detroit.


NEW KIDS ON THE BLOCK: Sam Heldman has a new blog, inspired, he says, "in substantial part by bickering with [me] about striking projectionists a couple of weeks or so ago." Sam is also a former Harvard Law Review editor (join the club -- our members are here, here, here of course . . . anyone else?), and his blog will focus on "decisions issued by the National Labor Relations Board, the U.S. Court of Appeals for the Eleventh Circuit, and Alabama's appellate courts," possibly with some Supreme Court stuff thrown in.

Thursday, July 25, 2002


I DON'T RECOMMEND the 1994 movie adaptation of Balzac's 1832 novella Le Colonel Chabert, with Gerard Depardieu. I do recommend the actual book by Balzac -- you can read it in a couple of hours; it's only about 120 pages long. I first read it in ninth grade and didn't really understand it; then I devoured it last summer on an airplane.

The plot -- Colonel Chabert, who supposedly died in a Napoleonic battle in central Europe in 1809, survived the battle and, after having meandered through Europe for eight years, is back. No more Napoleon -- the pre-Revolutionary monarchy's been restored -- and his wife has remarried and has two kids. Chabert finds Derville, his wife's lawyer, and tries to recover his name and part of his estate. But what it really is is a nineteenth-century lawyer story -- think Herman Melville's Bartleby the Scrivener -- about Derville's office, his clerks and staff, his lawyerly habits, court documents and procedures. Incidentally, both in the book and in the movie, Derville is representing both Chabert and his wife and trying to come to a settlement between the two. I'm pretty sure this is a breach of legal ethics; in any case, it doesn't look good. Whose interests is he representing? Pretty clearly Chabert's, not his other client's.

Anyway, the movie's not Balzac, moves slowly, cuts out Balzacian dialogue and adds new, and not better, dialogue of its own; it changes important plot points to make the story more confusing and less satisfying. But all lawyers should read the book. Balzac writes:

There exist in our society three men, the Priest, the Doctor, and the Man of Law, who cannot respect the world. They wear black robes, maybe because they are in mourning for all the virtues, for all illusions. The most unhappy of the three is the Lawyer.


WHOLE FOODS HOISTED: The Junkman reports that Whole Foods Markets will be sued by the American Council on Science and Health for violating California's Proposition 65. Apparently the foods at Whole Foods are not so pure after all -- at least not by California standards. Under Prop. 65, companies must label products that contain any "toxic" ingredients. One such "toxic" compound is created by baking bread, but bread is not so labeled by Whole Foods. ACSH does not believe that bread puts people at risk, just as it does not believe Whole Foods' ads suggesting organic foods are better for yourt health. But ACSH does believe in holding Whole Foods to the crazy chemophic standards that Whole Foods' has helped to promote -- in the process demonstrating the insanity of Prop. 65.


AT PLAY WITH ZACARIAS MOUSSAOUI: Jessie Rosenberg is somewhat harsh on the Washington Post Style section for their article on Zacarias Moussaoui. Philip Kennicott, The Post author, writes:

[The motions] show an angry man focused on what he feels is American hypocrisy and determined to hold this country to its stated principles of freedom and justice. Even as observers speculate about Moussaoui's mental stability, his writings suggest that he was developing a legal strategy, if not to save himself then to call to account those who he feels are abusing him.

Jessie disapproves of the formulation above, because what hypocrisy and abuse is there? "Since Moussaoui believes we are being hypocritical and abusive, though," says Jessie, "the Post can state his beliefs as truth, without presenting any evidence." The article is presenting his beliefs as his beliefs, not as truth. The evidence they present is entirely adequate to prove what they're trying to prove. They tell me he's an angry man who thinks the system is hypocritical, is abusing him, and is out to get him. I agree, he's an angry man who thinks the system is hypocritical, is abusing him, and is out to get him. Nor is he entirely wrong -- the prosecution wants to fry him, and the defense wants to represent him even though he has rejected their help on principled grounds, as I argued in a previous post. I don't have to sympathize or agree with his agenda to want to understand.

Next, Jessie disapproves of the Post's characterization of Moussaoui's motions as "playful at times, especially when tweaking or goading Judge Leonie Brinkema or his court-appointed standby lawyers." Says Jessie: "So, according to the Post, tweaking and playful is saying Brinkema has a 'legal pathological killer instinct with ego [boosting] dementia to become supreme,' and calling his court-appointed lawyers 'death lawyers.'"

At times, Jessie, at times. How about this one:

"Keep going Brinkema but don't forget it's the landing that is difficult. (Trust me, I am a pilot.)"

Now, that's kind of funny. At least playful and tweaking. Seriously though -- the Post convinces me that Moussaoui's mind is a fascinating place, not just because the mind of a terrorist is chillingly interesting but also because of his creative use of language:

His use of the initials UBL, for Usama bin Laden, is only one example of an almost mystical relation to language. He finds patterns in language, initials that can stand for multiple words, or phonetic connections that seem, to him, to suggest philosophical similarities. UBL isn't only "unique best location" and Usama bin Laden, but also "United Behind the Lion." The FBI is also the Fascist Bureau of Information. The initials SAM, which stand for Special Administrative Measures (restrictions that prevent him from outside communication that might compromise security), also reveal "Secret Assassination of Moussaoui" and are, of course, a reference to the government, Uncle Sam.

He also enjoys politically charged neologisms. Rather like Rush Limbaugh's use of terms such as "feminazi," Moussaoui invents the word "demoncratic" to dismiss the idea of democratic justice. On July 3, he says, "I am learning the hard way that every word count in this life." It's a statement that has at least two meanings: He acknowledges that, in a legal context, he must parse his requests with care. But he also declares a view of language that was once common in literature from Homer to Freud. Epithets, allusions and etymological similarities have profound, perhaps even magical, meaning for him. . . .

He says, "She is a master of deception deceiving everybody with her Grandnany Look." He calls her the "She Clinton," and says she is "Without a doubt Pro Choice . . . The Choice for the killing of Zacarias Moussaoui." His use of "pro-choice" is one of several attempts to play with and invert political labels. He also mocks Brinkema's "compassionate conservatism, namely pretending to want to protect me."

(See also this excerpt from the trial transcript on How Appealing, and this from Stuart Buck.)

Sure, the article, with its discussion of roads not taken (he also allegedly planned to get married), makes him out to be somewhat human and deserving of pathos. And why not? As the article says: "Strictly speaking, he wasn't one of the 19 hijackers. He was arrested in Minnesota on immigration charges almost a month before the Sept. 11 attacks. Between intending to do something -- whether it's murder or marriage -- and actually doing it, lies an existential gulf." And because of his bad defense, he may end up getting a punishment he doesn't deserve. (Though as I argued earlier, giving him the punishment he deserves is not worth violating his autonomy as a litigant by giving him a defense he doesn't want.)

Not only is he less evil than those who actually killed people, he's also an interesting fellow. I wouldn't want to meet him, but he's interesting anyway. Tout comprendre needn't be tout pardonner. Now, some people may have their hearts softened by this and wrongly decide to go easy on him -- but I'm not even sure of that (do we want to go easy on Hannibal Lecter just because we get a fascinating glimpse into his head and recognize him as a polite and cultured gentleman?), and anyway, that's no excuse to demand demonization at all costs. This isn't "news," but that's why we call this the "Style" section.

UPDATE: Lynxx Pherett disputes that Moussaoui was "less evil"; I think he's pretty evil, but it makes a difference that he didn't violate anyone's rights.

Reader George Wolf, who's studying Arabic, points out that "almost all Arabic words are variations of three root consonants, and thematically-related words use the same three consonants, with different vowels and sometimes other consonants in combination. For example, the Arabic words for book, library, reading etc. are all variations of the consonant sounds K, T and B, in that order. 'Book' is 'kitaab' or something close to that. . . . This might be pure coincidence in Moussaoui's case, but the use of the thematic three-letter structure is striking. Further, it's interesting to wonder whether this structure might lead native Arabic speakers to draw unconsious conclusions about similar-sounding words (or concepts, or acronyms) in English and other languages."

UPDATE 2: Jessie has also posted on withholding information from scientific papers so terrorists won't be able to reproduce the results. This is something I know nothing about, but what Jessie says may be sensible. Read it and see if you agree.


MARRIAGE AS CONTRACT: Based on Hanah's link, I linked below to the story of how a Connecticut court won't dissolve a Vermont civil union because Connecticut doesn't recognize civil unions, while Vermont won't dissolve it because it requires at least one party to be a Vermont resident.

Hanah asks, "Why is this different from any other contract that could be dissolved?" This raises the generally-interesting-for-libertarians question of contract rights and marriage-as-contract. I know next to nothing about family law, but I'm going to jump in anyway.

Without asking whether marriage should be just a matter of contract, let's suppose it were. Then what are the remedies for breach of contract? Well, as good libertarians, I suppose we'd respect the rights of the parties to write what breach provisions they want into the contract -- defining a breach (mutual consent, adultery, domestic violence, unilateral decision of either spouse, etc.) and defining damages (husband pays wife $100,000 on breach, parties go their own way keeping their separate property and diving their community property, etc.). (And termination of the marriage doesn't even have to be defined as a "breach"; it could just be a regular dissolution of the contract.)

From that perspective, how would we feel about a couple who wrote a contract saying, "We're always going to stay married, no divorce, always live together, no separation under any circumstances"? If, say, the wife wanted a divorce for some reason or wants to move out and the husband sued, would we feel comfortable forcing the wife to move back in?

This wouldn't be enforceable today, even under contract law. There's a widespread rule against specific performance for personal services -- if you say "I'm going to do personal work for you" and then breach the contract, the court won't force you to honor the contract, but would only make you pay money damages. Similarly, there's a widespread rule against penalty damages -- if you say "You can get out of the contract but only if you pay me $1,000,000," where the money is unrelated to the actual harm you'd suffer, the court won't honor that, on the theory that this is just a backhanded way of deterring breach and forcing the personal services.

Now, none of that sits comfortably with libertarianism, which I generally take as saying you should be able to sell yourself into slavery if you want. It seems any mandatory contract terms like those get us away from "contract" (good) and toward "status" (bad), whether it's in the commercial setting or in the marriage setting. Any thoughts on this?

UPDATE: Reader R. Horn reminds me that there may be kids involved. Because children aren't usually around at the time of marriage, there's potentially a role for government policy even for committed libertarians. So let's ignore kids and just assume it's a childless couple. R. answers that the business partnership may be a good form for the childless marriage. My response is that this doesn't resolve our problem here. The business partnership is just another set of default about profit-sharing and dissolution -- what if the parties want to write a business partnership where they and their money are bound together for life? R. answers that "enforceable eternal relationships are not consistent with strict libertarianism" because you don't know the future and it's not reasonable to bind yourself for eternity under all circumstances, but he grants that maybe he's just saying (and I agree that he's saying this) that he thinks the strict libertarian perspective is wrong.

UPDATE 2: Reader Michael agrees that one should be able to sell oneself into slavery but notes that a recent effort to do so on eBay did not make much money.

Seth Farber suggests that this only seems like an interesting or unusual case because the parties are gay -- he once represented Irish nationals when Ireland didn't allow divorce; these people had to live in New York until they met the residency requirements before they could get a New York divorce.

My friend Louis Tompros raises some excellent points -- why assume that divorce is a breach? If marriage is a contract of mutual support or asset division (a kind of risk spreading), divorce might not be the breach -- it might just be the continuation of the contract under other circumstances. Or, if you think of the contract as financial support + emotional support, then divorce looks more like a breach. I'm not doing justice to the full complexity of Louis's comments -- just, I'm not dealing with them here; I'm assuming a particular no-divorce contract because I want to isolate the particular point which should be problematic for libertarians -- how should libertarians feel about specific performance of personal-services contracts, in marriage or elsewhere?

Joel Grus raises several interesting points. One point: Does natural-rights libertarianism (which he isn't fond of) imply absolute freedom of contract? My interprertation of his point: Even if libertarianism implies waivability and transferability of all rights, do you even currently have future rights to yourself? Maybe those future rights only spring into being at the moment when you can choose whether to exercise them. But if this is right, then what's the libertarian basis for promise-keeping at all? Can you never give someone the right to have you show up at work tomorrow?

Maybe this is right, and all you can give the employer is the right to have your money in the event that you don't show up (because you do currently own the rights to your money and can transfer them contingently). This would provide a libertarian rationale for not enforcing personal services contracts. Alternatively, maybe we should specify that you do own your future self, or we should add "commitability" to the list of libertarian principles, so all personal rights must be not only waivable and transferable but also "commitable," meaning you should be able to commit yourself to waive or transfer them in the future.

The second point: Even if you think that personal-services contracts should be specifically enforceable, it doesn't follow that the government should enforce them, because such contracts tend to be really expensive to enforce, in marriage just like in employment contexts (send a policeman to force the wife to stay at home?), and why should the taxpayer spend all his money enforcing every aspect of your contract? But I think this doesn't completely get you out of the conundrum, because even if the government won't enforce the contract specifically, it could still consider the contract enforceable, in which case it should allow "reasonable self-help."

For instance, the husband might personally not let the wife leave the house, or take her car keys and not give them back if she's announced that she's leaving, or something like that. So even if the government won't specifically enforce the underlying contract, it should take a position on the legality of such reasonable self-help (O.K. if the contract's enforceable, not O.K. otherwise), so we still need to decide whether the contract's enforceable.


USA TODAY POLL: An alert reader pointed me to the following blog post on
Doctored stats or entertainment?
UCLA law prof Eugene Volokh blasts USA Today for running a poll about the pledge of allegiance controversy in its Snapshots section a few days ago. Since the survey in question originated from my hands at the keyboard, I'd like to add my two cents. He says that I summarized the court's ruling incorrectly (okay, but given that the general reader knew by then that "under god" was the problematic phrase...and those words are currently part of the pledge...), skewers the paper for not explaining in larger type that the survey was a self-selection-biased online poll (yeah, but no one ever said online polls were scientific, especially because people can take them a zillion times, and we NEVER represented it as such), and questions the calculation of the poll's margin of error (well, given that the poll isn't get the picture). All well and good...let the publicity fly, and I'm 100 percent for journalistic integrity, and yes, the press is often guilty of gross misrepresentations of fact...but we are talking about USA Today, and I wonder if we're holding the paper to a higher standard here than that to which it holds itself...
This is of course responding to my criticism of USA Today's front-page report a few weeks back that
Most say 'Pledge' is constitutional
Do you agree with the federal appeals court's ruling that the Pledge of Allegiance is unconstitutional?
[Pie chart:] Yes 27%, No 73%.
My criticism pointed out that this (1) mischaracterized the decision (which ruled only that "under God" was unconstitutional, not the whole pledge), (2) mischaracterized the sample (which was reported in tiny print as being a poll only of "law students and legal associates," not what people would normally assume by "Most"), (3) failed to make clear that this poll was self-selected and thus a completely invalid measure of the views of any group, whether the public at large or law students at large, and (4) in the small print misreported the margin of error as +/-3%, when even a scientifically valid poll that size would have a margin of error of at least +/-5.5%.

     So was I just being uptight, ignoring the fact that this was clearly mere harmless entertainment? Well, look, I don't want to be a priss, and if the poll had just stayed as an online survey at, where it originated, I wouldn't have complained much. JDJungle isn't a hot news site, and while I'm sure it provides valuable services for its readers, sound reporting of the news probably isn't supposed to be one of them.

     But USA Today has the second-largest circulation (as of mid-2000) of any daily newspaper in the country. It purports to be a credible news source. Its front page supposedly factual reporting does not purport to be merely "entertainment," but rather the facts.

     Is it too much to ask that the paper accurately summarize the case (and not rely on the assumption that lay readers will have heard and remembered its specific holding? That the paper make clear to readers that a survey is of a small professional subgroup, rather than leaving it for the readers to find in 6-point print? That the paper acknowledge that the survey is statistically invalid, rather than assuming that lay readers will see the words "online survey" and deduce that the survey must be bunk? (Note that the paper's mentioning the margin of error might have actually reinforced the assumption that the survey is indeed statistically valid.)

     For a top national daily newspaper, this is very sloppy stuff. Yes, I see the appeal of a casual cynicism -- "What do you expect from newspapers? The truth? You're so naive." -- and this cynicism is actually helpful when it persuades us to be more skeptical readers. But we shouldn't let such cynicism become an excuse for newspapers not trying harder.

     I don't demand great depth from USA Today, or for that matter from other dailies. I understand that reporters will often not know important details. I realize that there will always be inadvertent biases. But shouldn't papers aspire to at least avoiding these sorts of very simple mistakes, mistakes that any first-year reporter should be able to identify -- and on the front page of the paper, for heaven's sake?


THIS IS ALMOST FUNNY: A Connecticut court won't dissolve a Vermont "civil union" between two gay partners because it doesn't recognize civil unions; Vermont won't dissolve it unless one of the parties is a legal resident of Vermont. (Link through Hanah.)


"EX-DICTATOR BROKE, LIVING WITH MOM": In the Washington Post, the story (link through Glenn) of Valentine Strasser, former Sierra Leonean military dictator, who took power at 25, was ousted four years later, lived in exile in Britain, went to law school on a UN scholarship, dropped out, lived in London under an assumed name until his student visa ran out and he was deported. He's now back home, unemployed, living with his mother.

The government says Strasser is not entitled to benefits because he took power by force. Strasser concedes the point but says he should be treated better.

Last year, the government called on citizens not to throw stones at the former head of state, who without a car, was wandering around Freetown on foot.


SHE CLINTON: Stuart Buck reports that Zacarias Moussaoui is prolife.


FERROUS WHEEL: Garrett's brother Brelan explicates Alanis Morissette.

Wednesday, July 24, 2002


KAFKA FOR THE DAY: "Give It Up" --

It was very early in the morning, the streets clean and deserted, I was on my way to the railroad station. As I compared the tower clock with my watch I realized it was already much later than I had thought, I had to hurry, the shock of this discovery made me feel uncertain of the way, I was not very well acquainted with the town yet, fortunately there was a policeman nearby, I ran to him and breathlessly asked him the way. He smiled and said: "From me you want to learn the way?" "Yes," I said, "since I cannot find it myself." "Give it up, give it up," said he, and turned away with a great sweep, like someone who wants to be alone with his laughter.


POP-UP WINDOWS: I've been using PanicWare's free Pop-Up Stopper software to block those annoying pop-up windows, and so far (it's been a few days) it seems to be working very well.


DELL: Glenn Reynolds reports trouble with Dell. Funny this -- I've been trying to buy a machine from Dell since Friday, and all I've gotten is the runaround. UCLA has worked out a good deal with Dell for UCLA employees, which is why I'm sticking with it at least for now, and our tech people say that they're generally pretty good machines. But from what I've seen so far, Dell's service (even in sales, where they ought to be eager to take my money) is pretty lousy.

UPDATE: Finally, they seem to have shipped it, after far more time on our tech guy's part and on my part than it should have required. Let's hope it actually works . . . .


"RAVING LUNACY": A great column about the proposed law banning "rave" music events, from Glenn Reynolds.


MEDIEVAL MOVIES: Also, I don't recommend seeing The 13th Warrior (1999) with Antonio Banderas on video. It takes place in the year 922 and is essentially a loose adaptation of Beowulf (see also here and here), with the addition of a handsome ambassador to the Norsemen from the caliph's court at Baghdad. But -- very low on plot. Instead, I recommend you see The Navigator: A Mediaeval Odyssey (1988), where people in a 14th-century Cumbrian copper-mining village tunnel through the earth to avoid the Black Plague, on the advice of a visionary child, and end up in 20th-century New Zealand.

Anyone else have favorite movies that take place in the Middle Ages? Ground rules: I define Middle Ages as roughly 500 to 1500, depending on the country; the movie needn't be historically precise. (King Arthur's O.K. though the historical Arthur may have been pre-500; Hamlet's O.K. though the "real" Hamlet is just a medieval legend with ancient antecedents; Shakespearean medieval history plays are inherently medieval, even if a particular film version is set in modern times; The Princess Bride, Shrek, or a random fantasy movie with a dragon, a castle, and a lady with a pointy hat are not O.K. because they take place in no identifiable place and at no identifiable time.)

Aside from The Navigator, obvious possibilities are (in no particular order):

  • Arthurian: Monty Python and the Holy Grail (1975), possibly the most accurate movie ever done about the Middle Ages, and Camelot (1967), for the Lerner & Loewe songs;

  • Shakespearean: Henry V (1989) with Kenneth Branagh, Richard III (1995) with Ian McKellen -- and why not Hamlet (1996) with Kenneth Branagh and Tom Stoppard's Rosencrantz and Guildenstern Are Dead (1990) with Gary Oldman, Tim Roth, and Richard Dreyfuss (I haven't seen Macbeth or the other histories in movie form);

  • The Lion in Winter (1968), about political intrigue in the English court in 1183, with Peter O'Toole as Henry II, Katharine Hepburn as Eleanor of Aquitaine (won an Oscar for this), Anthony Hopkins as Richard Lionheart (major big-screen debut), and Timothy Dalton as Philip Augustus (big-screen debut);

  • The Adventures of Robin Hood (1938), with Errol Flynn (the first movie Eugene saw in the United States);

  • Braveheart (1995), with Mel Gibson, based on a 13th-century Scottish rebellion against English rule;

  • Sorceress (1987) (Le moine et la sorcičre) with Tcheky Karyo, where a Dominican friar visits a 13th-century French village in search of heretics and decides to prosecute a local herbal healer;

  • The Name of the Rose (1986) with Sean Connery, F. Murray Abraham, and Christian Slater (his second movie!) -- the book it certainly ain't, but it's a good work of its own;

  • The Hunchback of Notre Dame (1996), the Disney version (see my article here), which as I recall was truer to the spirit of the novel than the more classic Charles Laughton version which bizarrely makes Louis XI out to be a wise proto-enlightened monarch;

  • Alexander Nevsky (1938), based on a 13th-century battle between Russians and Teutonic knights (even if you only see it for the Prokofiev score); and

  • The Court Jester (1956), with Danny Kaye and Angela Lansbury, which at least one web site lists as taking place in the 12th century.

A few that I've seen so long ago that, like the god Crom in Conan the Barbarian, I don't even remember whether they were good or not: Ivan the Terrible (1945); El Cid (1961) with Charlton Heston and Sophia Loren; Becket (1964) with Richard Burton and Peter O'Toole (who plays Henry II like Ian Holm plays Napoleon); and Beatrice (1987), one of Julie Delpy's first movies. I also seem to recall I liked The Fall of Otrar (1992), a Kazakh movie (in Kazakh) about the Mongol invasions, and maybe, speaking of Mongols, Genghis Khan (1965) with Omar Sharif. Also Marco Polo, the swimming pool game.

A few that I don't recommend: First Knight (1995), with Sean Connery and Richard Gere; The Canterbury Tales (1971) and The Decameron (1970), essentially Italian medieval porn by Pier Paolo Pasolini; Andrei Rublev (1969) (I could never get into the swing of these interminably slow Russian movies); and Robin Hood: Prince of Thieves (1991) and Robin Hood: Men in Tights (1993). Note that The War of the Roses (1989), with Danny De Vito, Michael Douglas, and Kathleen Turner, is not about the Middle Ages.

UPDATE: Of course, do a Google search and you find that everything's on the web. Check out lists of medieval movies here, here (includes The Princess Bride????), here, here (a nice course web site), here, here (for SCA types), here (if you want the best costume movies), here, here (contains Shrek????). . . .

UPDATE 2: Reader Neil Chazin suggests the "great" Errol Flynn Robin Hood (which I've added above in the recommended list) and the "not that bad" ("less recommended but also about Robin Hood") Kevin Costner Robin Hood (which I've added above in the not-recommended list). Neil also recommends Excalibur (1981).

My friends Gil Milbauer (his son, really) and Steve Reizes suggest A Knight's Tale (2001) with Heath Ledger (Steve says it's fun partly because of the intentional anachronisms). Steve also suggests Ladyhawke (1985), with Rutger Hauer, Michelle Pfeiffer, and Matthew Broderick (one of his first movies) (I saw this when it came out but don't remember whether it was good -- I think I liked it, but then again, I was 11 at the time). Finally, Steve also reminds us that The 13th Warrior is based on Michael Crichton's Eaters of the Dead; Crichton's book is based not only on Beowulf but also on the real travel narrative of an Arab who visited the Rus (that's the original Russians, who are actually Scandinavians).

Long-time reader Nat Justice suggests Robin and Marian (1976) with Sean Connery and Audrey Hepburn; Ingmar Bergman's The Seventh Seal (1957), about a Crusader during the Black Plague playing chess with the Grim Reaper; a "little-seen but brilliant" Czech film called Marketa Lazarová (1967) (apparently "voted by Czech reviewers and critics as the 'best Czech film of all time'"); and The Vikings (1958) with Kirk Douglas, Tony Curtis, and Janet Leigh. Nat says The Vikings is cheesy; I saw it in France in 1987 but can't remember much about it now, except that someone gets his hand chopped off and then they stick his wrist into the fire so he doesn't bleed to death.

Alex Kozinski suggests A Man for All Seasons (1966), about Thomas More, though since it takes place in the time of Henry VIII, I wouldn't call it medieval any more. (I semi-arbitrarily pick 1485 [end of the Wars of the Roses, beginning of the Tudors with Henry VII] as the end of the Middle Ages in England, or alternatively 1509 [beginning of Henry VIII's reign] . . . but then again, who's to say you can't choose the 1530s, with the repudiation of the Catholic Church, and get this movie right in under the line?) Also, he suggests Army of Darkness (1993) (the sequel to Evil Dead II (1987)), where "Ash finds himself stranded in the 13th Century with his car, his shotgun, and his chainsaw," if you're "in a more camp mood."

Reader Dan Hobby suggests The War Lord (1965) with Charlton Heston, even if it's only to see Richard Boone as the war lord's henchman. And, oops, I had included The Return of Martin Guerre (1982) with Gerard Depardieu, but it turns out that takes place in 16th-century France, and I'm dating the end of the French Middle Ages at 1483, the death of Louis XI and the accession of Charles VIII, who began the Italian wars which would continue into the early 16th century. So I removed Martin Guerre and replaced it with The Court Jester.

UPDATE 3: Reader Chris Bertram suggests Robert Bresson's Lancelot du Lac (1974). Reader Joachim Klehe suggests The Hour of the Pig (1993), where Colin Firth (also with Ian Holm) defends a pig on a murder charge.

Reader Thomas Asch suggests The Magic Sword (1962) with Basil Rathbone, though it's not clear from the description whether this is really about medieval times or whether it's a fantasy movie taking place in a generic pseudo-medieval setting. Thomas notes that "the acting is indifferent" and "the special effects primitive," but likes the story because it's "so archetypical and the imagination of the details so compelling"; his wife found it "unwatchable." Reader George Byrd suggests, for campiness, Howard Hughes's The Conqueror (1956), with John Wayne as Genghis Khan.

Reader Peter Schmid suggests Les Visiteurs (1993), a farce with Jean Reno where a knight and his squire are transported to the 20th century (though depending how much of it is in the 20th century, I wonder how well this fits into the "medieval" category); and The Passion of Joan of Arc (1928), said to be one of the best silent movies ever made (musical soundtrack recently added by Anonymous 4). My friend Tim Sandefur suggests Rosencrantz and Guildenstern Are Dead (added in the main body of the post) and Becket. Reader Doug Burns suggests Disney's The Sword in the Stone (1963).

UPDATE 4: Reader Bill Greve seconds my nomination of The Navigator and others' nomination of A Knight's Tale, and also recommends The Long Ships (1963) with Richard Widmark and Sidney Poitier, a Vikings and Moors story. Reader Toren Smith suggests Terry Gilliam's Jabberwocky (1977), "even more 'lovely filth' than Holy Grail," and the "brilliant" Pathfinder (Ofelas) (1987), about 11th-century Lapps.


I'M AN ANARCHIST -- AND I VOTE: Ron Bailey promises a discussion of the ethics of voting when you fear becoming complicit in "morally suspect norms." He presents a lengthy overview of a bioethical conference he participated in, where participants considered the ethical and policy implications of research -- and decided whether to recommend regulation -- on "four hot button issues: reproductive genetic testing, cloning/stem cells, germline gene transfer, and genetic enhancement." Unfortunately, the article does not deliver on its promise -- it ends, in a single paragraph, with the nice result that Ron's group agreed not to suggest regulation of genetic enhancement and the conclusion that "it probably is better to vote."

The anarchist anti-voting position doesn't deny that a vote can change the result (especially in a small group); rather, the anarchist says, what if you lose? Have you given legitimacy to the process by participating? If the potential negative outcome of the process is bad enough, is it better to abstain from the whole process and instead try to discredit it? Is it possible to both discredit the process and participate for the sake of damage control? All important questions, whether or not you think they're relevant to the modern-day United States. But you won't find anything about it here. If only that hadn't been the article's lead, maybe I wouldn't have been disappointed. . . .

By the way, I still recommend reading anything else by Ron Bailey that you can find on the Reason site.


APPELLATE SANDMAN: A House subcommittee is holding hearings now on whether to split the Ninth Circuit (link via How Appealing). This reminds me of a dream I had this last spring, in which I was trying to cite a case that came down while the Fifth Circuit was splitting in 1981 to form the Fifth and Eleventh Circuits. (The Bluebook, the guide to legal citation, has a whole special section, § 10.8.2, on how to cite cases from the Fifth Circuit split.)

How did it turn out, this dream? I guess I succeeded in correctly citing the case.


ARRRRRR: Judge Alex Kozinski writes, in Mattel, Inc. v. MCA Records, Inc. (filed today) (link via How Appealing) -- a trademark and defamation lawsuit over the song "Barbie Girl" by the Danish band Aqua:

MCA [sued Mattel] for defamation [because a Mattel representative had, in characterizing MCA's alleged trademark infringement, used] the words "bank robber," "heist," "crime" and "theft." But all of these are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable "rhetorical hyperbole." The parties are advised to chill.


AIRPORT SEARCHES: A reader writes:
[It's] interesting that you immediately see clear Constitutional problems with Florida's "Voluntary Roadside Interview" police procedure, but you're "very" wishy-washy on the legality of the similar, but far more egregious airport detentions & searches of all American airline passengers.

To paraphrase your words slightly so as to apply to standard airport passenger screening:

".... but I'm pretty certain that this isn't just illegal but unconstitutional: When a government agent uses his authority to detain travelers, even very briefly, that's a seizure -- and given the weakness of the government's reasons for interfering with people's liberty this way, it seems to me to be an unconstitutional seizure, and thus a Fourth Amendment violation."

Please get off the fence on the 4th Amendment legality of "seizures" (detentions & searches) of innocent airline passengers (no trace of "probable cause") --- Please clearly state your informal "opinion", one way or the other.
     Sure: (1) The government's detaining passengers as they board a plane and searching them is indeed a seizure and a search. If airlines did it entirely on their own, then it wouldn't pose a Fourth Amendment problem, since the Fourth Amendment applies only to the government; but it's pretty clear that the government played a big role in the screening system in the first place, and plays an even bigger role in it now.

     (2) But the Fourth Amendment doesn't ban all searches and seizures -- it only bars unreasonable ones. Nor does it define "reasonableness" as requiring probable cause. Generally, blanket searches of a vast range of people, in order to find the tiny percentage that are acting illegally, are not constitutional. But "reasonableness" is an inherently pretty flexible concept, as it must be, precisely of situations such as this one: Yes, when a person boarding a plane can jeopardize the lives and liberties of hundreds of people on the plane, and thousands more on the ground, you bet the searches and seizures are reasonable. Lower courts have so held, the Supreme Court has endorsed this, and they're right.

     (3) But, you might ask, doesn't this sort of vague reasonableness test make Fourth Amendment protection uncertain and often weak? Indeed it does. Nonetheless, "reasonable[ness]" is the test that the Framers gave us -- and even though it has been in some situations instantiated through a set of brighter-line rules, I don't think that the vagueness and potential breadth of allowed searches can practically be avoided, precisely because some searches are indeed necessary to save people's lives.

     The Constitution is not just a charter for preserving our liberties against oppressive government, though it does try to do that. It is also a device for creating a government that can preserve our lives, liberties, and property against foreign and domestic enemies who would take them away. For the government to be able to do this, it must have various powers, including in many instances the power to search and seize us. We may want to see that power limited in various ways -- but the power to stop and screen passengers strikes me as eminently reasonable and necessary.


THE MOTIVE-HUNTING OF MOTIVELESS MALIGNITY: As I posted two months ago (see here and here), my article on private prisons, "A Tale of Two Systems: Cost, Quality, and Accountability in Private Prisons," came out in the Harvard Law Review as part of its "Developments in the Law: The Law of Prisons" issue in May 2002. The piece was unsigned, like all student-written work, but of course I can tell you I wrote it. I tend to be sympathetic to privatization -- I used to work for the Reason Public Policy Institute, which has been advocating prison privatization for years -- though when it comes to prisons (an area I think the government should definitely be involved with, and where certain quality and inmate-rights issues are important), I don't have any strong ideological view on whether public or private prisons are better.

Because my article ended up being pro-privatization (though with suggestions on how private prisons could be made even more accountable), the Association of Private Correctional & Treatment Organizations, the private prisons trade association, put out a press release with quotes from the article and comments by the head of the association; the release notes that the Harvard Law Review is a respected source, and of course doesn't mention that I was the author or that the Harvard Law Review itself took any position on the issue.

Yesterday and today, I got e-mails from three different people, who will remain anonymous (someone probably found out I was the author because I mentioned it on this blog or because I have a copy of the paper on my personal website, and this news travels quickly through the grapevine). Here's a sampling of the constructive criticism:

Will you be truthful with me and tell me who funded your paper?

Its not surprising you work for . . . Reason. How much money did they get from the industry last year? $50,000 - $100,000 [SV note: Reason wishes!]. . . . Your paper is a piece paid for by an industry that sells public safety to the lowest bidder. I have little doubt who you'll be working for when you graduate. . . . Is this what we can look forward to from Harvard graduates? More [sleight] of hand by corporations preying on society. Enron and Worldcom are looking for MBA's too.

If you have a conscience, it appears that it probably lost hands down in a battle with your ideology when the HLR article was composed.

Some e-mails came with substantive comments, which I do appreciate and hope to get to when I eventually return to the project. What I don't appreciate -- and what won't make me any more likely to change my views or look at their substantive comments -- is attacks on my character or on my supposed funding (which I didn't get any of, by the way, not like it matters). Another common theme -- the e-mails attacked not only my own funding and ethics and those of my former workplace, but also the funding and ethics of the author of one of the reports I cited.

Some of the e-mails also questioned why I didn't reveal my Reason affiliation (while I haven't worked for Reason since 1998, I still have an "adjunct policy analyst" affiliation with them, which I occasionally publish under). I can forgive my correspondents for that because most people don't know that all student-written pieces are anonymous. The introductory footnote to the full article does include thanks to two people at Reason (with their Reason affiliation) who helped me out.

At least the third guy decided that my analysis was determined by my assumed ideology and not by my supposed funding, so he's giving me some credit for going through some intellectual process, but it's not that much better. My willingness to believe I'm right is directly proportional to the number of insulting e-mails I get, on the theory that if that's what they're reduced to . . . . As for the first two guys, to their credit, they apologized for their tone once I called them on their tactic.

Take heed, everyone -- conservatives and libertarians fall into this trap too. I'm sure I've done so, on occasion. Listen instead to the excellent Walter Olson, who, in his March 1997 Reason review of Godfrey Hodgson's unsympathetic history of the conservative movement, says:

If you wish to take your opponents' ideas seriously, as he pledges to do, there's a fairly simple, mostly negative algorithm to follow: You just have to presume they reached those ideas by intellection and not to rationalize their creature comforts or sex drives, keep their incomes flowing, vent their racism or liberal racial guilt, feel bighearted or superior or cool, etc. There's no obligation to extend this courtesy to any one opponent, and none of us do it all the time to all our opponents, but if one takes credit for doing so one should follow through. Yet by book's end Hodgson has become a motive-spotter like the rest, detecting careerism and veiled racism and labeling free marketry as merely "the self-interest of the business class" in that same old Wills-Lind-Phillips style. Which prompts me to say that I don't have the slightest idea what motivated Mr. Hodgson to write this book; I only wish he'd written a better one.

Oh, and brownie points to whoever can (without doing a google search) identify the source of the title of this post.

Tuesday, July 23, 2002


GOOD-GOVERNMENT LIBERTARIANS: Hanah dislikes libertarians who, though not admitted anarcho-capitalists, don't seem to give any thought to what government should do:

[M]ost libertarians are not anarcho-capitalists. They believe that there is a legitimate role for government in society. Yet, when a problem actually does need a government solution, most libertarians have nothing constructive to say.

On a similar note, see Virginia Postrel's December 1997 Reason editorial on technocratic thinker Herbert Croly and his insidious influence on modern political thought, with ideas on what an alternative libertarian governing philosophy should look like:

As slogans go, "leave us alone" is not bad: It suggests that there is something precious and vital in private pursuits, something that is threatened by a government bent on subordination. Not so good is "government doesn't work," which, along with variations on the same theme, is popular in libertarian circles. At the very moment when Crolyism is vulnerable, such anti-government sloganeering accepts and reinforces a Crolyist definition of "government" as synonymous with the unlimited administrative state. It thereby jettisons the entire classical liberal tradition -- which is very much supportive of "government" properly constrained -- in favor of a vague anarchism.

See also her March 1998 responses to reader mail, including to a letter from Harry Browne (who has a whole book called Why Government Doesn't Work):

[The "government doesn't work" line] dismisses the rule of law, overthrows the enforcement of contracts and property rights, eliminates the common defense, and permits mob rule (libertarians for lynching?). It quite rightly scares the hell out of the general public. If technocrats of the right and the left want to cling to power by claiming that we must choose between the huge, intrusive, Crolyist state and anarchy, that is their prerogative. But libertarians should not go out of their way to help make that ridiculous case. Critiquing failed programs is essential. Equating those programs with "government" is anachronistic, unimaginative, foolish, and just plain wrong.

As the societies of postcommunist Europe and the developing world struggle to establish a rule of law in which freedom can flourish, 21st-century classical liberalism must think hard about how institutions -- including government institutions -- can evolve to support free minds and free markets. That requires creativity and serious intellectual and practical engagement.

As far as actual free-market organizations go, I think the Reason Public Policy Institute, where I used to work, is one of the best at actually proposing solutions.


THREE CHEERS FOR SELF-HELP: Giving pesky parkers the boot.


WHAT A BAD IDEA: George Best passed along the following Tampa Tribune link:
They call it a "Voluntary Roadside Interview."' But for hundreds of motorists flagged down by state troopers Monday on Interstate 4, there was nothing voluntary about it.

Off-duty troopers, hired at $30 an hour, picked motorists at random and directed them to pull off the interstate into a rest stop, where Palm Pilot-toting interviewers waited.

No, this roadside checkpoint wasn't looking for drunken drivers. The survey, which will cost about $150,000, was commissioned by the Florida High Speed Rail Authority to gauge public interest in riding a proposed 120 mph bullet train. . . .

[S]urvey officials say. They said they checked with a lawyer for the Florida Department of Transportation.

"The bottom line is, we can do it. It's well within the law,'' said Adrian Share of HNTB Corp., general consultants for the rail authority. "With the cooperation of state troopers, the state is allowed to pull people over just to seek information.'' . . .

Bruce Williams, who helped design the survey, said interrogations are the only way to accurately target the people most likely to use a bullet train: I-4 commuters and tourists. . . .
     I've never heard of a program quite like this, so perhaps there's some legal angle I'm missing, but I'm pretty certain that this isn't just illegal but unconstitutional: When the police officer uses his authority to detain people, even very briefly (as, for instance, at a drunk driving checkpoint, where the detentions are likewise often very brief), that's a seizure -- and given the weakness of the government's reasons for interfering with people's liberty this way, it seems to me to be an unconstitutional seizure, and thus a Fourth Amendment violation.

     A police officer may ask a pedestrian questions without it being a seizure, but the theory there (whether plausible or not) is that the pedestrian knows he may just move on. When an officer signals for a driver to pull over, the driver quite naturally assumes that he has no choice, especially given that Fla. Stat. sec. 316.072(3) makes it "unlawful and a misdemeanor of the second degree . . . for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer" (and the drivers would likely assume that the police officer is indeed trying to give them a lawful order).

UPDATE: Prof. Ronald Allen, a criminal procedure expert, pointed out that if the police officers are acting without their department's involvement, then their actions might not violate the Fourth Amendment because they would be attributed only to them and to their private employer, and not to the government. But if that's so, then they would still be liable under state tort law, for essentially forcing people to stop using their apparent legal authority.


THOUGHTS ON BLOGS: Stuart Buck has a very interesting and thoughtful post about blogs and blogging -- much worth a read.


CAREFUL WHAT YOU LOOK AT ON THAT COMPUTER, PROFESSOR: From Kevin Hoffman, "Triple-X at Tri-C," The Cleveland Scene, July 10, 2002:
A recent computer sweep at the [Cuyahoga Community College] turned up 62 employees who used their work computers to access sexually explicit websites. Two employees, one a professor, lost their jobs as a result of the crackdown. The rest were let off with warnings. . . .

[T]wo faculty members say a longtime art professor quietly resigned soon after the warning letters were sent. [A college spokeswoman] declined to discuss the material that resulted in the lost jobs, except to say it wasn't child porn. "If you think pornography, you're there," she says. . . .

Employees can't say they weren't warned. Tri-C's computer policy explicitly bars the use of "sexually oriented" material. The school sent out gentle reminders about the policy twice -- once in June 2000 and again in January 2001. . . .

[Some faculty] worry the sweeps will compromise academic freedom. "It's so nebulous, the distinction between what's pornography and what's research, especially in the field of visual communications," says an art professor. . . .

And of course, there remains the age-old debate of what constitutes pornography. In the PC world of academia, that definition can become awfully narrow. "I remember cases where a faculty member was accused of creating a hostile work environment because he had classical nude photos on his wall," says Jonathan Knight, a spokesman for the American Association of University Professors. "He was an art professor."

Adds a Tri-C professor: "When push comes to shove, I don't even know how to define pornography. Your garbage might be my treasures. And I know there are some art forms that are pretty aggressive, and they've been called pornographic."

But beyond puritanical squeamishness -- and the native instinct of all bureaucracies to create policies upon policies -- employers have good reason to outlaw porn. Frederick Lane, author of a forthcoming book on workplace privacy, says courts have shown an increasing willingness to buy hostile-work-environment complaints as part of sexual harassment claims.
"What's really driving these one-strike-and-you're-out rules by workplaces is because it's a tremendous liability," Lane says. . . .
     I've said it before and I'll say it again: "Hostile environment harassment" law is one of the broadest and vaguest form of speech restriction around today -- and it's growing. It started in shipyards and other places where free speech supposedly didn't matter; now it's spread to colleges and universities. It started covering only employees, and now it's being applied to students and patrons of public accommodation. It started with personal slurs and the hardest core pornography, and now it's being applied to offensive political and social commentary, religious proselytizing, sexually themed humor, and indeed to "legitimate art" as well as "pornography" (since of course the law is notoriously bad at distinguishing the two). You can't allow the government to pressure employers to suppress offensive speech by their employees -- on pain of massive legal liability -- and hope that somehow college professors will be immune.

     So free speech enthusiasts can cheer courts striking down the Communications Decency Act, and hope that they'll do the same to follow-on legislation -- but in the meantime, in cyberspace or outside it, "hostile environment harassment" law is imposing speech restrictions that are as broad as, or even broader than, the higher-profile ones that the traditional civil libertarians have been complaining about.

     (By the way, I realize that public college computer systems are public property, and the government has some claim to making sure that they are used for proper purposes. The claim is far from open-and-shut, since when a government provides a broad range of computer access, it's then limited in excluding certain disfavored subjects. But in any event hostile environment harassment law threatens all colleges, public or private, with massive liability if they allow employees -- including professors -- to engage in sufficiently offensive speech. So this isn't just a matter of a local college choosing, entirely on its own, to control its own property; it's a matter of the federal government indirectly imposing, via the risk of harassment liability, nation-wide speech codes for all colleges, universities, and other workplaces, whether public or private.)


FREE AMJAD RADWAN: As I posted ten days ago, I am quite sickened by the U.S. government's treatment of Ms. Radwan. A brief recap: The U.S. government will not allow Ms. Radwan, an American citizen residing in Saudi Arabia, to return to the U.S. without the permission of her father because that is what Saudi law requires. I think this is outrageous. Ms. Radwan is an adult American citizen. She should be entitled to come to this country, and if she enters U.S. soil (such as the U.S. embassy) in contravention of Saudi law, so be it. Some government officials label Ms. Radwan's case a "child custody" dispute because she went to Saudi Arabia as a child. However valid such a characterization may have been when she was 12, Ms. Radwan is now nineteen. Yet our government continues to acquiesce to the Saudi government's demeaning treatment of Ms. Radwan as if she were still a child. Ironically, for the past year it has been easier for a potential Saudi terrorist to enter the U.S. through the "Visa Express" program than it has been for Ms. Radwan to return to the country of her birth.

Some members of Congress are outraged too. Congressman Frank Wolf (R-VA) is circulating a letter amongst his colleagues demanding that the Saudis let Ms. Radwan leave their country. Signers thus far range from the near-rabid right-winger Dan Burton (R-IN) to socialist Bernie Sanders (I-VT). One option, promoted by the Wall Street Journal editorial page, is for the State Department to deny visas to all members of the Radwan family until Amjad Radwan's father grants her permission to leave the country.

UPDATE: I had a momentary brain leak when I first posted this item. In addition to making a few embarrassing typos, I wrote that Congressman Burton was from California. Oops! As one reader wrote in: "Aside from the Indy 500, some happy memories of great basketball teams, and the fact that we had judicially-mandated 'shall-issue' concealed carry before it was cool, Hoosiers don't have much to brag about. . . . He may be a near-rabid right-winger, but he's OUR near-rabid right-winger!" So true. The post above has been revised to correct the error, and I apologize to any offended Hoosiers or Californians.


MORE ON TRANSCRIPTION ERRORS: Bill Somerfeld passed along another example of why even professional transcripts are often untrustworthy; this is an actual correction from the New York Times (I checked this myself on NEXIS), April 7, 1995, p. A2:
Because of a transcription error, an article yesterday about Senator Alfonse M. DAmatos remarks about Judge Lance A. Ito misquoted the Senator at one point in some editions. In his conversation with the radio host Don Imus, he said: I mean, this is a disgrace. Judge Ito will be well known. He did not say, Judge Ito with the wet nose.


THE LAW OF ATLAS SHRUGGED: The audience for the following is limited, I realize . . . .

     Where Is John Galt? Our tour through the Law of Atlas Shrugged begins with this question, which was the heart of the noteworthy case Temple v. John Galt Co.[1] The Temples (note the antirational religious connection) sued the John Galt Co., but failed in their attempts to serve process by mail. Had they been better read, they would have realized the intrepid hero was harder to find than that. Suffice it to say that, in the ringing words of the Court of Appeals, “the trial court filed a judgment entry, granting John Galt’s motion and vacating the default judgment.”

     But this just returns us to the more familiar Who Is John Galt? Is it indeed the John Galt Co.? Or is it John Galt Associates, of Pakwood Industries v. John Galt Associates?[2] Here, John Galt, a commercial landlord who refused to let tenant Pakwood assign a commercial lease, won again. Galt’s refusal to assign, the court said, was “reasonable.” (But of course.) Pakwood should consider it lucky that Galt agreed to go to court, rather than just dynamiting the whole property. Whoops, wrong book.

     Who else might John Galt be? Surely not John Galt, Ltd. of Assistant United States Trustee v. John Galt, Ltd.[3] or John Galt Energy, Inc. of In re John Galt Energy, Inc.[4] If there’s one thing we know, it’s that John Galt would never flee his contractual obligations by declaring bankruptcy.

     Could he be the plaintiff in Galt v. City of Sparks?[5] The decision is a one-line order which provides only the tantalizing clue that a co-defendant was Policeman Henderson (Badge # 9516 of the City of Sparks). That John, always getting into trouble. Or perhaps the answer lies in Rolfe v. Galt,[6] where John and his wife Lorraine Galt -- how come we never heard about her? -- triumphed over a baseless personal injury lawsuit.

     Curiously, I could find no appearance by the rest of John’s merry band in the published cases, except for one shadowy figure: none other than Ragnar Danneskjold. Danneskjold v. Brown[7] acknowledges that Ragnar was a veteran (naturally), though apparently one suffering from post-traumatic stress disorder, which seems much less like the Ragnar we know and love.

     Ragnar next shows up in Danneskjold v. Hausrath,[8] the case that first revealed this fascinating subject to your humble author, who stumbled on it when doing research for an article he was writing. Here Danneskjold is found to be an inmate at Attica State Prison, suing to challenge, of all things, the Prison’s failure to pay him minimum wage for certain work that he was doing. Such a suit may at first sound distinctly unobjectivist, but bear in mind that Danneskjold is demanding a minimum wage from the government, not a private business. (Danneskjold’s crime of conviction is not indicated, but since he’s being kept in state prison, it probably doesn’t involve the high seas -- or could there be an inter-governmental conspiracy afoot?)

     Finally, we return to the questions we started with: Where Is John Galt? Who Is John Galt? And a new one, What Ever Became of John Galt?

     Here is where John’s story draws to a close; for though he emerged a resounding winner from the book, everyone, even (perhaps especially) man qua man, loses in the end. But what a fitting end, as chronicled in State ex rel. Smith v. Greene.[9] “On September 14, 1970,” the court explains, “Tri-State Motor Transit was struck by members of Teamsters Local 823.” On September 30, “a truck, carrying explosives, owned by Tri-State Motor Transit Company and driven by Galt was struck by rifle fire and exploded. Galt was killed and his clothing, pocket book, money and personal effects, valued at $100.00 were destroyed.” “[T]wo teamsters [were] subsequently convicted for the second degree murder of Galt.”

     Even in death Galt struck a blow for what he held most dear; for State ex rel. Smith is a case about private property. “[T]he substance of the claim here is not wrongful death,” the Court said: “It is property damage.” And that the “value of the property destroyed . . . was small” could make no difference: The “wrong is just as great as the wrong done to the owner of property of great value.”

     Property is property. Not only actual damages, but even punitive ones were available, see id. at 60, to punish those who tamper with this sacred principle. Ayn Rand couldn’t have written it better herself.


     [1] 1997 WL 177627 (Ohio. App.), appeal not allowed, 79 Ohio St. 3d 1491 (1997).

     [2] 219 Ga. App. 527 (1995).

     [3] 130 B.R. 464 (S.D. W. Va. 1989).

     [4] 75 B.R. 658 (Bankr. E.D.N.Y. 1987).

     [5] 848 F.2d 1242, 1988 WL 58008 (9th Cir.).

     [6] 477 N.Y.S.2d 790 (App. Div. 1984).

     [7] 1996 WL 695524 (Vet. App.).

     [8] 82 F.3d 37 (2nd Cir. 1996).

     [9] 494 S.W.2d 55 (Mo. 1973).


IS BRAD PITT FAT? It seems that the federal government thinks so. The Centers for Disease Control and Prevention classifies people as overweight or obese based upon the "body mass index" (BMI), a calculation based upon a person's height and weight. (BMI = weight(lbs)/height(inches)/height(inches) x 703.) A BMI of 25 to 29.9 is overweight, and 30 or more is obese. According to today's Wall Street Journalon dead tree, Sammy Sosa and Arnold Schwarzenegger are obese, while Brad Pitt, Michael Jordan, and Harrison Ford are overweight. The problem? The BMI does not distinguish between fat and muscle, so buff men are likely to be considered overweight. This should bring some perspective to official estiamtes that 27 percent of Americans are obese and an additional 34 percent are overweight.

UPDATE: Iain Murray of STATS comments on the "globesity" epidemic.


IF TAPPED CONVERTS TO LIBERTARIANISM... You'll know it was because of this crap. Washington, D.C. wants to crack down on "independent operators" -- i.e., people who work out of home full-time or part-time. That includes freelance journalists and journalists with regular employment who freelance from home. (In other words, it includes a lot of our friends.) Just reading the list of requirements gives Tapped a big headache. Some people quoted in the article, like Floyd Abrams, says it amounts to an anti-First Amendment government licensing of journalists. We'd like to believe that, but we're not lawyers. Maybe Eugene Volokh can help us out?
We generally don't blog on demand, but in the case of our friends at Tapped, we'll make an exception.

     The dominant view these days seems to be that modest, content-neutral taxes that don't just single out speakers or the press, can also be applied to First Amendment-protected activity alongside other activity. See, e.g., Leathers v. Medlock (1991), which upheld the application of sales tax to cable television services as well as other goods and services. Likewise, the government could impose other generally applicable laws, such as zoning rules or licensing fees, again so long as they are genuinely content-neutral and applicable to more than just First Amendment-protected activity.

     There's some caselaw from the 1940s (Murdock v. Pennsylvania (1943) and Follett v. McCormick (1944)) that held that the government may not impose a license tax on speakers or distributors of literature. But I doubt that these cases would be applied today to the fairly low license fees ($30/year for people who make over $2000 in revenue) involved in the Washington ordinance.

     But this should by no means deter Tapped from becoming libertarians! In fact, it should encourage them -- if they are outraged by this license fee, it shouldn't be on parochial First Amendment-liberal grounds that apply just to The Sacred Profession Of Journalism, but rather on the broader libertarian grounds that the government should stop trying to tax everything in sight, whether it's journalism or babysitting (another example given in the Washington Post article that got Tapped so hot and bothered).

Monday, July 22, 2002


OVER 5000 HITS AGAIN TODAY (though only for the third time in our blog's history), thanks to Ramesh Ponnuru's link on The Corner to our USA Today observations, and to Glenn Reynolds' and Eric Alterman's links to our Ring theory.

UPDATE: An alert reader reminded me that "hits" are in many ways a flawed measure of site traffic -- and surely they are. In the past, I've at times stressed this in past posts, but I had assumed that people are aware that a hit (which is more or less a page view) is not a "unique visitor," and for that matter even a "unique visitor" isn't necessarily a unique visitor.

     For whatever it's worth, Extreme Tracking tells us that about 10-15% of our hits are what they call "reloads," and the others are what they call "unique visitors." I'm not sure how sound that is, especially given that BraveNet generally gives us different total hit numbers than Extreme Tracking does. But it's a fair bet that if we have a titch over 6000 hits, as we did Monday, this probably means a bit over 5000 "unique visitors," whatever that means.


ERIC ALTERMAN LINK: I'm delighted to report what I think is our first link from Eric Alterman -- just like InstaPundit's link, it's to the secret thread uniting United Airlines, Sauron, John Fogerty, and Saul Zaentz. Hey, we at the Conspiracy are working overtime to provide you with this sort of important, cutting-edge research!


OPERATION TIPS: Looks like I'll be on KPFK-FM (90.7 FM) tomorrow (Tuesday) morning at 7 am, talking about Operation TIPS. KPFK is very far left (it's a Pacifica station), so it speaks well of them that they're inviting me on their show (and they've had me on in the past, too).

     My basic take will be that:
  1. People have a right (setting aside a few very unusual contexts, such as the lawyer-client privilege) and often a moral duty to report to law enforcement behavior that they think might be evidence of serious crimes -- whether the crimes are child abuse, rape, murder, or terrorism.

  2. The government is entitled to urge people to do their duty in this respect, and to provide central tip lines that make it easier for this to happen -- and so far, at least, that's all that Operation TIPS seems to be doing. And this is true as to people who see misconduct in other people's homes as well as who see it on the street.

  3. Without question, this sort of organized tipping system can be abused by the government, for instance if the government starts using it to catch people whose behavior shouldn't be criminal, or is at most a minor crime. But this riskof abuse by itself can't be enough to condemn the program -- most law enforcement systems (including the very existence of the police and the courts) can be abused, but it doesn't follow that we should abandon them because of that. I've thought about the analogies to the Stasi, the KGB, and the like. But the KGB used and abused lots of other law enforcement technique -- the very existence of the police, the ability to question suspects, the ability to imprison people convicted of crimes, and so on. That a tool was used badly by the KGB doesn't make it impossible, immoral, or unlikely for it to be used well by law enforcement in a democratic, liberal regime.

  4. It's true that many people will end up reporting behavior that ultimately proves not to be criminal -- they see a child who looks like he was beaten, but it turns out that it was just an accident; they see people building what seems like it might be a bomb, but it turns out to be something quite innocent. But it doesn't follow that the risk of error should lead people to stop reporting possibly criminal activity, or that it somehow makes it improper for the government to urge people to report such activity. (Of course, the police should indeed be careful to recognize that many of these tips will be erroneous, and I think experience will quickly teach them that; the tougher problem might be persuading police to actually take the real tips seriously.)

  5. It's an open question how useful citizen tips will ultimately be; it's certainly possible that, at least in some contexts, they'll provide so much noise and so little useful data that they end up being counterproductive. But I've seen no evidence that this will indeed be so here -- and I don't think that this concern is a strong argument against experimenting with such approaches.
Here, as elsewhere, we face the perennial dilemma of a free government: How do we use government to protect us against our enemies, foreign and domestic, while still protecting ourselves against misbehavior by the government itself? There are plenty of possible answers -- but I don't think that abandoning citizen tipping, or even barring the government from encouraging such tipping, is the right one.

     For a contrary view, from Robert Levy at Cato, whom I much respect, see this National Review Online column.


SEX CRIME WAVE INVOLVING AMERICAN INDIANS AND EAST ASIANS? Check out the U.S. Sentencing Commission 2000 data which shows that for the primary offense of "sexual abuse," 56.3% of all "Offenders sentenced in U.S. District Courts under the U.S. Sentencing Commission guidelines" were "Native Americans, Alaska Natives, Asians, and Pacific Islanders." That's 56.3%, folks, from racial groups that make up 5.0% of the U.S. population.

     The explanation, of course, is not some sex crime wave among certain racial groups. Test your statistics savvy and figure out the real reason. The answer is here.


HEY, SAURON-BAIT! YEAH, YOU WITH THE RING!, or PEOPLE UNCLEAR ON THE CONCEPT, or MAYBE JOHN FOGERTY WAS RIGHT ALL ALONG: I was flying last week, and opened up the SkyMall in-flight shopping catalog -- and what should I see but "The One Ring [TM] Sterling Silver Edition." Yes, for $129 you too can own a replica of the Lord of the Rings ring.

     Now stop me if I'm wrong, but I thought the whole point of the book was that the ring, tempting as it might be, was actually a work of great evil; it drew dark forces to you, and it drew you into the dark forces; and the whole point of the Fellowship was to destroy the damned thing. And now good Tolkien fans are supposed to proudly display their precious, er, their possession, to demonstrate to fellow fans just how well they know and love the book? At least the ring is offered with a chain, so people don't have to wear it on their fingers -- thanks heavens for small favors.

     But I think it goes deeper than that, because the tiny print at the bottom of the ad says that all this is "TM The Saul Zaentz Company." Should we be wondering something about the ultimate backing for the Zaentz Co.? Could John Fogerty have been right all along (see also here)?

     Or to take it one level deeper (that's mines-of-Moria-deep, baby), is that how Sauron distributed his wares to the Elven-kings under the sky, the Dwarf-lords in their halls of stone, and the Mortal Men doomed to die? "Gee, Elrond, look what I just bought from the in-flight catalog -- doesn't it look cool? No, I don't know anything about this Zaentz guy, but it's cast in sterling silver and richly plated in pure gold, complete with a rich wooden collector's box and 20 inch chain!"


NO DISCRIMINATION AGAINST RELIGION: Sasha's blogged something last week about Davey v. Locke, the Ninth Circuit case that struck down the exclusion of theology students from a general student aid program. I think the Ninth Circuit got it quite right, for reasons that I discussed here three years ago.


DRUGS, GUNS, CRIMES, AND STATISTICS: Iain Murray has an interesting TechCentralStation column criticizing a real study that purports to show a correlation between highly restrictive drug laws and high crime. I haven't read the original study, and I actually tend to be sympathetic with its underlying claim; but I've found Murray's work to be generally quite credible and thorough, and thus much worth reading and recommending.


SLOW RESPONSE: I'm back from my long trips, but I'm swamped for most of this week (though I do plan on blogging), and then I'm off again for a week after that. Unfortunately, this means that it'll take me even longer than I'd feared to respond to all the e-mail that had piled up -- my apologies about that . . . .

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