[Eugene Volokh, 11:01 AM]
AN ODD DEFENSE OF PROJECT TIPS: Dahlia Lithwick makes quite a few good points in Slate (I always find her to be interesting and readable, even when I disagree with her), but I'm puzzled by her analogy with mandatory child-abuse reporting. No-one is suggesting a legal mandate to report all allegedly suspicious activity; such a mandate would raise a tremendous range of problems -- an article of mine discusses a rarely mentioned problem, but there are plenty of obvious other ones as well.

     Dahlia is right that the example of voluntary child-abuse reporting is an instructive one: Sure, it increases government power; sure, some of the reports will be malicious or just plain wrong; sure, some people will end up being wrongly accused. But surely it doesn't follow that citizens shouldn't call the police about incidents that they think involve child abuse, or even that the police shouldn't encourage citizens to do this. Likewise, I think, with citizens calling law enforcement about behavior that they think is connected with terrorism.

     But mandatory reporting raises many other difficult questions (to give just one example, Dahlia's point about the need to specify precisely just when the mandate kicks in). Perhaps it's justified in some situations; but I don't think it's a helpful analogy for TIPS or similar programs.

 
[Eugene Volokh, 3:57 PM]
GUANTANAMO DETAINEES' CLAIMS REJECTED: Just read Tuesday's decision in Rasul v. Bush, where a federal district court judge rejected various claims by Guantanamo detainees. The judge concluded that the federal courts lack jurisdiction over claims brought by aliens who are detained outside U.S. sovereign territory (and military bases in foreign countries, such as Guantanmo, don't count as U.S. sovereign territory).

     I think that's right, given the Supreme Court's decision in Johsnon v. Eisentrager (1950) -- and also as a matter of first principles. Detention of aliens overseas, especially aliens captured as part of a military conflict, should be kept as a military and political matter, and not one for the civilian courts; and any errors in such detention should be handled through military and political channels, rather than judicial ones.

 
[Eugene Volokh, 3:15 PM]
MORE RATIONALIZATIONS: Another reader writes:

[The supermarkets] DON'T promise not to reveal the info [to the government], hence the urge by the common man to give false information in this instance, both to preserve his privacy and his bargaining power.

     Also, he gets a one time profit from the store, but the store profits many times from his information and can continue to as long as they have, or continue to gather, valid information. So, it is perceived as an unequal transaction. The store is not paying enough for what they are receiving.

     Hey, I fully understand the urge to lie to get a benefit, especially when we think that the other side "is not paying enough" in exchange for what they're asking. I understand lots of urges. For instance, if you're hiring an auto mechanic on an hourly basis, I can understand why the mechanic might have the "urge . . . to give false information" that would jack up the price (for instance, report that he worked more hours than he actually worked), especially if he thinks that you are "not paying enough for what [you are] receiving." (After all, he gets a one time payment from you, but you profit many times from his excellent work, because your car is now running well.) Hey, I even understand why people have the urge to lie in order to get sex, especially when they think the other person is demanding too much.

     But it seems to me that the honest thing is to resist the urges. If you think that you're being offered a deal that you see as unprofitable -- if the supermarket doesn't want to "pay[ you] enough" for the information, or if the customer doesn't want to pay you enough to fix his car, or if your potential sex partner wants a declaration of undying love before she goes to bed with you -- you can just refuse the deal. I understand why you'd have the urge to get the other side to come across, and lie about delivering what they ask in exchange. I just don't quite see how this makes it right.

 
[Eugene Volokh, 3:05 PM]
A BIT MORE ON TIPS: Some interesting posts on the subject from Lynxx Pherrett here and below -- I'm not including a separate link for each because there are quite a few. I'm not sure I completely agree with all the analysis, but most of it seems to me generally quite thoughtful and sensible.

 
[Eugene Volokh, 2:59 PM]
FEDERAL COURT ORDERS GOVERNMENT TO RELEASE SOME INFORMATION ABOUT POST-9/11 DETENTIONS: Check out the opinion in Center for National Security Studies v. United States Department of Justice, just released today -- it can be reached by going to the the National Institute for Military Justice site and clicking on the "Center for Nat'l Security Studies v. United States Dep't of Justice" title in the middle of the screen, under "News." I'm not a Freedom O Information Act (FOIA) expert, so I probably won't have many comments on the case, but I thought I'd at least pass along the link.

 
[Eugene Volokh, 2:53 PM]
RATIONALIZATIONS: A reader writes, responding to my supermarket card post:

If the supermarkets were honest with us, we might have some obligation to be honest with them. However, the "discount" cards generally involve raising prices and then offering to sell them at the regular prices only to a select group of people. . . .

     Case in point: . . . [In one local chain, a]fter the discount card program was implemented, all the prices magically rose (or so it seemed to me). The same percentage of wines were on sale; but now the sale prices were only available with the "discount" card. In other words: the price you paid for a wine with the card was the same as if you had bought it on sale before the card appeared. The non-card prices seemed higher than the previous non-sale prices.

Thus, the claim that the card offers some kind of advantage to consumers is dangerously close to lying. A more honest account would be: get our card, and we'll refrain from charging you extra. I feel no qualms about lying to people who lie to me.

     I don't buy this argument at all; in fact, it's a good example of why the "it's OK to lie to people who lie to us" rationalization is so dangerous. The claim is that the supermarket is "lying" to you. On closer examination, it turns out that it's just "dangerously close to lying." On further examination, the only facts the reader presents are that "[t]he non-card prices seemed higher than the previous non-sale prices" (italics added). A pretty flimsy justification for explaining why one is justified in being dishonest.

     But more importantly, even if the supermarket raised its prices because of the program, that's entirely their right. People selling goods or services, whether the supermarket, the reader, or anyone else, are generally entitled to set prices at whatever levels they want. If they want to raise prices and then offer a discount to some people, there's nothing "dishonest" about that. If they claim that the new price is a good deal, that's a matter of opinion; some people might think it's a lousy deal, but that doesn't make the claim of the good deal is a lie.

     Of course, if the store said not just "You'll save money if you use the card" (a fair summary of "You'll save money if you use the card, compared to what you'd save if you didn't"), but "You'll save money if you use the card, compared to what the prices were before the card was introduced," then the store would indeed be lying. In such a situation, they should be sued for fraud, though I think it's far from clear that it's proper to defraud them in return. But in any event, the reader conspicuously omitted any such evidence of actual falsehood.

     All of us are often tempted to get what we want, even if it requires saying falsehoods. Telling ourselves "it's OK to lie to people who lie to us" only increases this temptation. You can always find something that the other person is doing which "seems" like it's bad; then magnify it in your head to "they're dangerously close to lying"; and then turn that into "they're lying." Even if the "it's OK to lie to people who lie to us" rule is theoretically morally sound (and I'm not sure that it is), we thus need to be very careful that when we apply it, to make sure that temptation isn't getting the best of us.

     And beyond this, let me ask this: Imagine someone with whom you were doing business took the same approach. For instance, say that you're selling your professional services, and start offering customers a 5% discount off your current rates if they pay within 30 days. One day, you discover that one of your customers was falsifying the payment dates, or otherwise lying on something on which you trusted him. (The analogy isn't perfect because in such discounts the supplier can often easily check the data, but assume that it was hard for some reason.)

     When you reproach the customer for this, he says: "Well, I discovered that you had raised your rates a short while ago, so I think your 5% discount is 'dangerously close to lying.' Therefore, I'm going to interpret it as lying, and 'I feel no qualms about lying to people who lie to me.'"

     Would you think your customer is an honest fellow? Or would you think that you'd been cheated?

 
[Eugene Volokh, 12:25 PM]
GIVING FALSE INFORMATION ON SUPERMARKET DISCOUNT CARD APPLICATIONS: I often hear people suggest that those who want to protect their privacy should simply give false names, addresses, and phone numbers on their supermarket discount card applications. ("Protect privacy" in this context simply means preventing the supermarket from keeping track of their purchases, and communicating this information to others.)

     I wonder, though, whether this is quite ethical. No-one is forcing you to get a discount card -- you're getting it in order to save money. You're asking a business entity for a financial benefit that's valuable to you; in exchange, the entity asks you to give them information that's valuable to them. You can say yes to the deal or you can say no. If you say yes, wouldn't you have some obligation to hold up your end of the deal, by telling the truth to the business entity?

     Now some people (generally those on the Left) might not accept the underlying logic of this, because they believe that (1) the business's offer is somehow unfairly coercive, because you "lack bargaining power" compared to the business, or (2) businesses generally don't have rights, either because they're corporations rather than people, or because they're generally such bad actors that all is fair when dealing with them.

     But presumptive libertarians like me can't, I think, take this approach. I generally don't buy "bargaining power" comparisons. I think that people should abide by their obligations. I think businesses, being indirectly the property of real people, have rights (both constitutional and moral). I don't think supermarkets are particularly evil, and I think that even if they misbehave in some ways, I don't see how this deprives them of their right not to be defrauded -- and telling someone lies in order to get them to agree to a transaction that benefits you seems to me to be a form of fraud. Wouldn't people who think like me on these issues (and I think most libertarians generally do) have something of an obligation to be honest with the supermarket?

     Now of course in practice the supermarket will never sue us for these falsehoods; and even if my analysis is right (and it might be mistaken), I certainly don't think that lying in these applications is one the great sins of our time. Still, it seems to me that the "protect your privacy by giving a false name" suggestion -- which really means "lie to a business in order to get a discount but at the same time keep it from getting the information that is the announced price of the discount" -- isn't something that libertarians, conservatives, or even honest liberals should be advocating.

 
[Eugene Volokh, 11:26 AM]
CO-BLOGGING, LINKING, AND RATIONAL IGNORANCE: I sometimes get e-mail that responds to my cobloggers' posts; I respond that the e-mail should be addressed to them, not to me -- I certainly don't screen their posts, and often know little about the underlying subject areas. (For instance, Juan and Sasha know a lot about environmental questions; I know zip.)

     Reader Howard Litwak replied to one such message with the following very thoughtful (and flattering!) reaction:

I view high quality bloggers like yourself as filters to the overwhelming amount of information available -- and punditry offered -- on the web. So when I see you make additional postings, complete with commentary, I assume that you are in agreement with the opinion offered unless you specifically distance yourself from it.

     As a result, I feel . . . entitled to take up the viewpoints of your "cobloggers" with you, because without your choosing to post them, and comment on them, they would have no existence for me at all.

     Now what Glenn said, and what I assume that you are saying, is that he just points to interesting stuff, but that doesn't mean that he personally endorses it.

     And my response to him -- and by extension to you -- was that as blogging evolves, I think there needs to be a greater clarity by the pre-eminent thinkers of the Blogosphere as to what their links and comments really stand for.

     Eugene Volokh, like Instapundit, Kausfiles, Talking Points, Tapped, and many others, is by now, for those of us who only have a few minutes a day, a brand that stands for high quality commentary and high quality links.

     Perhaps you need to post in a prominent place a "policy statement" about why you choose to post some cobloggers and not others, or a "policy statement" about what it means when you link to something in terms of your opinion about it. Perhaps there's another solution.

     But for the multi-party dialogue that is the Blogosphere to evolve in a healthy way, I think we will all benefit when the intellectual leaders (and obviously, I count you in that number) set clearer standards about "third party" content.

I obviously much appreciate Howard's kind words, and I'm delighted that he enjoys blogs generally, and our blog in particular. And I sympathize with his concerns.

     Nonetheless, consider the source of those concerns: It's rational ignorance -- the perfectly understandable and necessary desire of those "who have only a few minutes a day" to trust the judgment of others, rather than to rely solely on their own knowledge and research. This is what "brands" are all about; whether they're Rolls-Royce, InstaPundit, or McDonald's, they are an assurance to those who have necessary limited time and a necessary limited body of expertise that the product is of a high quality, often along dimensions (such as reliability or food safety, as opposed to looks or taste) that cannot easily be measured by outsiders.

     There's nothing remotely wrong about rational ignorance; as I mentioned, it's inevitable and wise, given that life is short and we can't know everything about everything. But one has to remember that we bloggers are rationally ignorant, too. I can't know whether any particular post by my cobloggers is sound, especially when it's on a topic on which I know little. I can't know for sure whether an article to which I link is accurate. Nor can I spend the time checking all these items, though I do use rough proxies such as the reputation of the source, or my personal knowledge of Michelle, Juan, and Sasha, which leads me to think that they are extraordinarily smart people who are generally quite careful, thoughtful, and accurate in their statements (even if they inevitably get some things wrong).

     This is partly caused by the fact that the blog is a hobby, not a full-time job. But professional journalists face the same problems that we bloggers do, and they react in similar ways -- for instance, often relying on the judgment of others whom they have reason to trust. In some situations, for instance when I'm writing a law review article, I can afford to spend months thoroughly learning a large body of material and checking and rechecking many sources, though even there I must remain rationally ignorant about some matters, and rely on the word of others. But both for blogs and for daily columns, we authors do end up quoting, commenting on, and linking to material that we ourselves could not have fully checked.

     Readers, I think, understand this, especially as to blogs. They recognize that co-blogging involves division of labor, that co-bloggers generally trust each other's competence, and that their reactions to their co-bloggers' posts are often based on an assumption that the co-blogger is right, rather than on independent research. They recognize that links tend to be to things that the blogger thinks are interesting and probably accurate (unless the blogger specifically says the contrary), but that haven't been fully checked by the blogger.

     It seems to me that these general principles are pretty to clear to most people, and don't require policy statements (which in any case risk draining the fun out of what is in fact a hobby, not a full-time paying job). And it follows that if you want to respond to what one of us says, you're much more likely to get a thoughtful response from the author, and not from his friends, who are often rationally ignorant about the subject on which he's posting.

 
[Eugene Volokh, 9:33 AM]
O'REILLY FACTOR: Cathy Young has a balanced and thoughtful piece about The O'Reilly Factor in this month's Reason.

 
[Eugene Volokh, 8:43 AM]
SKINHEADS, RACIAL PROFILING, RESERVOIR DOGS, AND ANI DIFRANCO: A very thoughtful and interesting Denver Westword article by David Holthouse, who went undercover as a skinhead.

 
[Eugene Volokh, 8:41 AM]
ALI AND HIS GANG VS. MR. TOOTH DECAY: Check out Frank's Vinyl Museum: The Internet Home of Weird Records (thanks to my friend and fellow lawprof Claire Hill). Ali et al.; "Beatle Barkers," which contains "12 the Beatles' most popular early songs, done up by a traditional rock-'n-roll band with the vocals supplied by dogs"; and more.

 
[Eugene Volokh, 7:56 AM]
TIPS AND "SNITCHES": There are interesting arguments to be made about the Justice Department's new Operation TIPS project, a "national system for reporting suspicious, and potentially terrorist-related activity" that aims to get the help of "the millions of American workers who, in the daily course of their work, are in a unique position to see potentially unusual or suspicious activity in public places" (but who might see it in private places, too, such as other people's homes). I've chimed in on this, generally taking the view that this program is constitutionally permissible and probably on balance sound as a policy matter, too; but I acknowledge that there are dangers to it.

     I've gotten quite annoyed, though, by people talking about "snitches" when discussing this program, to the point that I have a hard time taking seriously any article that uses the term. In discussions of programs like Operation TIPS, the word "snitch" is a tip that the discussion is shifting from reasoned policy analysis to argument by epithet.

     I say this because "snitch" is a classic question-begging word. It's clearly a pejorative, so it doesn't just mean "someone who reports something to the police," because that's surely not always bad behavior. It can't even just mean "someone who reports a crime by a friend or relative"; that, too, is often good behavior (consider the Unabomer's brother helping the police catch him).

     In practice, snitch means "someone who reports something to the police wrongfully." Criminals use it broadly, because they naturally don't want anyone to catch them; even someone who turns in a rapist might be called a snitch by the rapist, but who cares what the rapist thinks? Law-abiding citizens generally use it more narrowly, to describe someone who for some reason shouldn't have called the police -- perhaps because the conduct that he's reporting shouldn't be seen as a crime in the first place -- or at least who acted out of impure motives. The difference between "snitch" and "vigilant citizen who's helping to protect us against criminals" lies entirely in the judgment whether the particular reporting that the person engaged in is somehow wrongful.

     So to call someone a snitch, one first has to explain why what the "snitch" is doing is wrong. If someone simply argues that "Operation TIPS is bad because it will turn us into a nation of snitches," he's begging the question: He's aiming to prove that TIPS is wrong, but he's trying to show this using a claim (it will make people into snitches) that itself assumes that TIPS is wrong. If you get rid of the unproven pejorative, you're just left with "Operation TIPS is bad because it will turn us into a nation of people who report suspicious and potentially terrorist-related activity to the police" -- and this of course leaves us with the question why this is indeed a bad thing.

     I stress again: There are certainly dangers to Operation TIPS, as there are to all law enforcement institutions. There might be good reasons to oppose it. But talking about "snitches" doesn't prove anything.

 
[Eugene Volokh, 7:17 PM]
SEPT. 11TH DONATIONS TO REP. CYNTHIA MCKINNEY: The IndePundit has noticed that Rep. Cynthia McKinney received over 20 donations, totaling many thousands of dollars, on 9/11; almost all are from people with Arab-sounding names. You can check this for yourself by going to http://www.opensecrets.org/indivs/ and entering a query with "RECIPIENT" sent to McKinney and "order the results by" set to "Date of donation." I got contribution totals that were slightly different from IndePundit's, but his overall summary seems quite right. Thanks to Instapundit for pointing to this.

     Now it turns out that McKinney has gotten large batches of contributions on other days; if you look at the OpenSecrets results, you'll find that contributions arrive in spurts. I'm not sure whether this reflects the dates of fundraisers (though could McKinney have possibly had a fund-raiser on Sept. 11?), accounting practices, or something else, but it would bear some looking into -- in context, the Sept. 11 spurt may seem less odd when compared to spurts on other, less momentous dates. And beyond that, there are limits to what arguments one can make based on contributions; Arab-Americans, like everyone else, are entitled to support candidates with whose views they sympathize. But this does seem like an interesting fact, and one worth looking into further, especially given her current election campaign.

THE INTERNET: It's also worth noting that this story, if it becomes a story, was broken by a blog. The research power of the Internet (opensecrets.org is just one example of the kind of data that's gone online in the last several years) lets ordinary people do research that journalists don't want to do, don't have the time to do, or just don't think of doing. Blogging lets these people communicate their findings -- with supporting evidence -- to the world. And the social filtering network of the blog world, in which posts on small blogs get picked up by InstaPundit / OpinionJournal Best of the Web / Slate Other Web Sites / The Corner / TAPped and others, and sometimes then by the traditional media, alerts the world to these findings.

     This fact-uncovering function isn't much discussed in commentaries about blogging, which mostly focus on blogs as vehicles for commentary and criticism rather than original reporting; and really juicy fact-uncovering is indeed quite rare in blogs (though, let's face it, it's not that common in the offline media, either). But I hope it will become more common, because this function can be tremendously important: Factual investigation deserves to be democratized, if only partly, just as commentary has been.

 
[Eugene Volokh, 5:33 PM]
PRONUNCIATION: Reader Bill Phelps sends some very nice remarks about the blog, but says "I am puzzled on how to pronounce . . . 'Volokh.'"

     In Russian, our vowels are pronounced more or less likely versions of the American "aw," and the closing consonant halfway between the "h" in "hot" and the "ch" in "loch." (My brother, who knows more about linguistics than I do, might be able to explain it better.)

     But we're not in a Russian-speaking country any more, and we don't expect people to pronounce it this way. Generally the name is pronounced to rhyme with "pollock," with the "kh" being pronounced as "ck." But if people try to pronounce the "kh" as closer to a "h" than a "k," that's good, too. We're flexible.

     One common pronunciation that does annoy me a bit is "Volokah," as if the "h" were a vowel. I suppose we should expect this, given that "kh" is an unusual combo in English, but it's not that unusual -- nobody says "Genghis Khan" as if he were "Genghis Kahan" (one of the Jewish Mongols, perhaps?). In any event, I doubt that this is terribly interesting to most readers, but, hey, someone asked . . . .

 
[Eugene Volokh, 5:02 PM]
BISSEXTILE: Just got back from the last of my several trips, and saw that some friends passed along to me a word-of-the-day from the AWAD (A Word A Day) list [email protected] list: "Bissextile," which stands for a concept to which I have a deep (even in-born) personal attachment.

     "Bissextile," it turns out, means "Of or pertaining to the leap year or the extra day in the leap year"; and my birth date is February 29, 1968. I'm told that it comes "from Late Latin bisextilis annus (leap year), from Latin bissextus (February 29: leap day), from bi- (two) sextus (sixth), from the fact that the sixth day before the Calends of March (February 24) appeared twice every leap year or perhaps because 366 has two sixes."

     "Bissextile," of course, is also one of what George Carlin (if I recall correctly) called the "pussyfoot" words -- words that sound dirty but aren't. But I'm bissextile, and I'm proud.