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Saturday, August 03, 2002


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.

Friday, August 02, 2002


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.


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.


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.


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.


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?


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.


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.


O'REILLY FACTOR: Cathy Young has a balanced and thoughtful piece about The O'Reilly Factor in this month's Reason.


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.


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.


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.

Thursday, August 01, 2002


LAWYERBLOGS: Despite my reservations about whether lawyerblogging has anything to do with the structure of legal discourse, Ernie the Attorney's collection of all known lawyerblogs in the universe (click on "expand all"), pointed out by Garrett, is cool!


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 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 ( 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.


LINGUISTICS LESSON: I tell people that my name rhymes with "gosh, a frolic!"


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 . . . .


HE AIN'T HEAVY: Look, Michael Dorf and Mark Lemley are being cited a lot!


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 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.


HERE COME THE JUDGES? The Senate confirmed two judges to the federal courts of appeals this week: Julia Gibbons to the Sixth Circuit and the "controversial" D. Brooks Smith to the Third Circuit. It's not quite a trend -- there are still 50 or so pending nominations -- but it's something. For those interested in keeping score, the Department of Justice's Office of Legal Policy provides the complete run down. The Senate Judiciary Comittee has its own nominations site too.


THE TRUTH ABOUT TRAFICANT: The former Congressman's greatest secret revealed.

Wednesday, July 31, 2002


WHY LISTEN TO FUKUYAMA? Thanks to Hanah, I've just discovered Tom Palmer's blog, which is quite good. (Tom is now with Cato -- I met him in July 1993, when he was lecturing at my first IHS seminar. More recently, about a year ago, we had drinks at John Harvard's Brew House in Cambridge when he came up to talk about "Why Welfare Isn't a Right." Looks like he's more on the ball than I am.) Almost two months ago now, Tom wrote, about Fukuyama:

I'm listening to Francis Fukuyama on C-Span2 and he's demonstrated again why I am leery about the claims he makes. He just asserted that Herbert Spencer was an advocate of genetics and somehow involved in the foundation of "scientific racism." It's pretty obvious that he has never read Spencer and doesn't know the first thing about what Spencer thought, and doesn't care, either. Spencer preceded the science that we call "genetics," did not believe in what we call "genes," and believed that acquired characteristics could be passed on, as had been proposed by Jean-Baptiste Lamarck, an earlier evolutionary theorist. (For a quick summary of Spencer's views, see the essay in the Internet Encyclopedia of Philosophy.) And to associate him with racism, "scientific" or otherwise, is both ignorant and absurd.

This recalls to mind Fukuyama's claims in his much acclaimed but remarkably flawed work The End of History, in which he suggested that the English civil war pitted Catholics against Protestants (!!) and stated that Thomas Hobbes's "great political work, Leviathan" was influenced by Isaac Newton, for "nature, in turn, can be fully explained by the laws of matter-in-motion, laws that had been recently explicated by Sir Isaac Newton." Oops! Newton was born in 1643, and Hobbes published De Cive in Paris in 1642 and Leviathan in London in 1651. (He should have mentioned Galileo, whose views were quite different from those of Newton.) But why worry about facts when you can be provocative?

Now I realize Fukuyama has already been trashed by the Blogosphere, but I was under the impression it was mostly because of his illiberal views, not because he's (giving him the benefit of the doubt) sloppy with these basic facts and characterizations. Didn't Fukuyama once write a whole book about Trust?


-IS THE DRUG WAR "CONSERVATIVE"? Last night, while watching ABC's John Stossel special on the drug war, I wondered whether the program was yet more evidence of liberal media bias. Not really, but I did feel that the program had something of a "liberal" slant. Stossel is an avowed libertarian, but the show generally steered away from libertarian or conservative critiques of the drug war. Stossel included several examples of government failure and mentioned the economic arguments against prohibition, but these arguments were hardly fleshed out. The show featured hostile (though professional) interviews of conservatives William Bennett, drug czar John Walters, and Asa Hutchinson, unflattering portrayals of President Bush, and sympathetic treatment of an expert at the leftist Institute for Policy Studies. I kept waiting for an interview with a pro-legalization conservative, perhaps Richard Brookhiser from National Review. Interviewing a police chief and a judge was effective, but I thought someone to directly counter Bennett and Walters would have been helpful. (And these days interviewing a Catholic priest doesn't count.) Don't get me wrong. I thought the show was quite good. I only think it could have done a better job reaching those who are not already sold on the message.

UPDATE: At least one reader agrees with my assessment, suggesting the show was deliberately "aimed at liberals who smoked dope 30 years ago and fought 'the man' and now are scared that their kids might smoke dope and fight the man." Maybe so. I would have preferred a broader representation of anti-prohibition views, but then again, Stossel's the big-time TV guy, and I'm not.

UPDATE(2): Another reader-offered theory: Stossel featured an analyst from IPS to appease liberal media watchdogs who regularly criticize him. (This could also explain his decision to highlight U.S.-supported pesticide spraying in Colombia to destroy coca plants.)

Tuesday, July 30, 2002


DOES YOUR WEBLOG OWN YOU? Take this test if you're a blogger. I think I'm about 25% owned by this blog. (Link through 12 frogs.)


LAW GEEKS: Ah, very well, four law geeks. It's just that, you see, Juan, we (unlike the Lord) have no idea who you are!


THREE LAW GEEKS? Unless Sasha was being kind to Michelle, I would think it's fair to say that this site is compiled by four "law geeks." Lord knows I qualify.


MAYBE SHE WAS JUST VIVACIOUS? Reader Gil Milbauer offers an alternative interpretation of the White House site's description of James Madison's wife, Dolley:
According to this dictionary there is an archaic definition of buxom meaning "full of gaiety" which is consistent with the rest of the sentence:

"Madison's buxom wife Dolley compensated for them with her warmth and gaiety."

It's probably what was meant, or at least offers plausible deniability.
     I choose to believe this was the intended use, although the site does not tell when the description was written. Thanks, Gil!


LAWYERBLOGGING: Garrett has some interesting thoughts on why lawyers are attracted to blogging. "It seems like there's something that compels law types to take up blogging." He has various theories on how to explain this puzzle, and particularly likes the idea that law, like blogging, thrives on references and links.

Well, there's something to this, but is there really a puzzle to explain? Let's look at the top 10 blogs from N.Z. Bear's invaluable ("Infamous is when you're more than famous! This guy El Guapo is not just famous, he's IN-famous!”) blogging ecosystem. (Updated regularly, not strictly speaking scientific, and based on the number of incoming links to any given blog from all other blogs on the large list.)

InstaPundit is a law prof. Andrew Sullivan is a journalist. Steven Den Beste is a software engineer. Charles Johnson of Little Green Footballs is a web designer. N.Z. Bear himself is a software developer. James Lileks is a journalist and political humorist. Jane Galt is a recent MBA. Matt Welch is a journalist. Stephen Green, the VodkaPundit, is apparently not a lawyer. [Update: Joanne Jacobs guesses he's a techie.] And at least three-fourths of the Volokh Conspiracy is law geeks.

So, of those top ten, only two are lawyers; three are journalists; three [maybe four] are computer types. O.K., maybe if you keep going down the list, you'll find more lawyers, and of course lawyers like us are interested in the law so we have friends who are law types and we link to law types more often (for instance, here, here, here, here, here, here, here, here . . .). But it looks to me like this can all be explained by lawyers' interest in (and ability to comment intelligently on) policy.

Similarly, when I was first on the Internet about eight years ago and participating in or lurking on various medieval literature listservs, someone posted a theory on why medievalists were more wired than their counterparts who studied Shakespeare, the Romantics, and so on. The theory had to do with how e-mail and posting on listservs -- anonymous forwards and the like -- was similar to the way writing was treated in the Middle Ages and different from the more modern ideas of the fixed text and the authoritative author. All very interesting, but it was also argued (convincingly, to me) that medievalists are more wired because English departments have fewer medievalists than Shakespeareans (some small schools may have only one), so medievalists are more isolated unless they talk with their own kind on the Internet.

So I like Garrett's explanation, but I think it's valuable in its own right, and not necessarily for explaining the supposed puzzle of the blogging lawyers.

UPDATE: Went through the second ten on N.Z. Bear. Only one lawyer, as far as I can tell.

Ken Layne is a journalist. Jeff Goldstein of Protein Wisdom is -- can't tell, but doesn't seem to be a lawyer. [Update: Joanne Jacobs says he's a creative writing professor.] William Quick, the Daily Pundit, is a science-fiction author. Tim Blair is a journalist. The Tres Producers are, well, producers, and at least two of them are also not lawyers. Andrea Harris of Spleenville -- can't tell, but she is unlikely to be a lawyer. [Update: Joanne Jacobs thinks she's a businesswoman of some sort.] Pejman Yousefzadeh is, indeed, a lawyer. Howard Fienberg of Kesher Talk is a statistician, and his partners aren't lawyers either. Kenneth Hunt doesn't say, but it's a technology blog, so maybe he's a techie, not a lawyer. [Update: He says he is indeed a techie, though he prefers to say "systems administrator" (and once studied to be a paralegal).] Town Hall is a collection of conservative activists, policy types, and so on (which may include some lawyers, but I guess not predominantly).

Note that this is a small sample, but as we say in the law biz, this is only "burden shifting." Now, three out of twenty (15%) or three out of seventeen (18%) is still vastly greater than the percentage of lawyers in the general population, but we'd already expect primarily lawyers, journalists, and policy wonks to be commenting on policy and current affairs on these blogs, so maybe 15% or 18% is quite normal.

UPDATE 2: Three-fourths of the Volokh Conspiracy is law geeks? See here and here.

UPDATE 3: Seth Farber, talking dog and lawyerblogger, has this theory about lawyerbloggers -- lawyers not only have good ideas about policy but also never get a chance to use their policy skills at their stultifying jobs!

UPDATE 4: Next ten, with no confirmed lawyers, but one whom I suspect is a lawyer [this has been confirmed] -- which makes an estimated four lawyers in the top thirty (13%).

Transterrestrial Musings is unavailable at the time of this writing. Meryl Yourish is a web developer. Sgt. Stryker, I don't know who he is. Probably not a lawyer. [Update: Joanne Jacobs says he's in fact a sergeant, in the Air Force.] Virginia Postrel is a journalist. (I know this, I don't have to check it.) The folks at Samizdata are "a varied group made up of libertarians, extropians, futurists, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cyberpunks, cypherpunks and wild-eyed anarcho-capitalists from North America, British Isles, Australia and Europe." No way these are lawyers, but maybe there's a mole. Laurence Simon of Amish Tech Support is an MIS manager. Damian Penny of Daimnation! doesn't say who he is, but he has a list of "Lawyerbloggers" on the top of his left column of links, so I'll assume that's his way of saying he's our brother. [Update: Joanne Jacobs confirms this.] Dr. Weevil doesn't say who he is, but he knows too much Latin to be a lawyer. [Update: Joanne Jacobs says he's a teacher.] Joanne Jacobs is a journalist. Natalie Solent doesn't say who she is. [Update: Joanne Jacobs says she was a British civil servant, now full-time mom.]

Monday, July 29, 2002


EVIL CABAL OR BUST: As a, but not the, Federalist from Virginia, I would like to point out Senator Hatch's recent remarks on The Federalist Society. Read them here, item 21.

      These are the words of a politician, and nuance is therefore nowhere to be found, but Hatch makes some solid points:
Beyond acceptance to its three key ideas, freedom, separation of powers, and that judges should not write laws, it is challenging, if not impossible, to find consensus among Federalist Society members. Its members hold a wide array of differing views. They are so diverse that it is impossible to describe a Federalist Society philosophy.

The assertion that members are ideological carbon copies of each other is ludicrous. The Society revels in open, thoughtful, and rigorous debate on all issues. It rests on the premise that public policy and social issues should not be accepted as part of a party-line but rather warrant much thought and dialogue. Any organization that sponsors debate on issues of public importance, as opposed to self-serving indoctrination, is healthy for us all.

Now, how does the Federalist Society accomplish its goal? Not by lobbying Congress, writing amicus briefs, or issuing press releases. The Federalist Society seeks only to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what it should be. The Society believes that debate is the best way to ensure that legal principles that have not been the subject of sufficient attention for the past several decades receive a fair hearing.

The Federalist Society's commitment to fair and open debate can be seen by a small sampling of some participants in its meetings and symposiums. They have included scores of liberals like Justices Ruth Bader Ginsburg and Stephen Bryer, Michael Dukakis, Barney Frank, Abner Mikva, Alan Dershowitz, Laurence Tribe, Steve Shapiro, Christopher Hitchins and Ralph Nader, just to name a few.
I especially enjoy the list of 60 speakers, including many modern liberals, who have graced the Society with their presence, appended to the end of his speech. The list is woefully incomplete, but includes a frequent (and my favorite) speaker: Nadine Strossen.

      (By the way, I considered linking to a site that would show several of the other Federalists from Virginia. Among others, I rejected the White House's history of Madison for its bizarre first paragraph. One wonders if Hilary Clinton will be remembered for "having back" or if Laura Bush will measure up to the "buxom" Lady Madison?

      Who writes these things? If you do, please contact me as soon as possible.)


FICTION FROM THE UNABOMBER: Turns out Ted Kaczynski, the Unabomber, has just published an essay in Green Anarchy (heard through How Appealing). ("Nor should anything in this article be interpreted as recommending illegal activity of any kind.") But what interested me more was his amusing little parable, "Ship of Fools," from a few years ago, which was actually adapted for the stage and performed in Pasadena in 1999. Read it, and then read the even funnier review in Salon.

Note: How do you spell Unabomber (Unabomer)? Newsweek wrote, on April 29, 1996:

Uncle? We've now heard from hundreds of readers questioning why we don't use a second 'b' in our spelling of Unabomer. In fact, our spelling has been based on the official FBI acronym for the case: UNABOM, or "universities and airlines bomber." However, to avoid any further confusion, we've decided to accept what's now common practice, and from now on it will be Unabomber.

Here is a discussion of this phenomenon by actual linguists.

UPDATE: I read the Green Anarchy article and I just don't understand. I understand his critique of most popular causes as not truly revolutionary -- they don't hit the system (technological, industrial society) "where it hurts" (the system could survive the loss of timber, Starbucks, or globalization) and, if anything, they strengthen the system by mollifying discrete sources of discontent. But then he pins the movement's hopes on an attack on biotech??? Our society could survive the loss of international trade, but it couldn't survive the loss of biotech?


BEAN-COUNTING AT THE NEW YORK TIMES: Joel Klein, formerly of the DOJ Antitrust Division, is now New York City mayor Michael Bloomberg's nominee for schools chancellor. Behold what the New York Times says about Joel Klein's accomplishments (omitting his distinguished service with the Harvard Law Review):

As head of the Justice Department's antitrust division for four years during President Bill Clinton's administration, Mr. Klein blocked or altered about 170 mergers. In 220 criminal price-fixing cases, 52 executives were sent to prison, corporations paid $1.7 billion in fines and individuals paid an additional $21 million. After leaving the Justice Department in 2000, Mr. Klein became chairman and chief executive of Bertelsmann Inc., which handles financial, legal and other issues for the German media company.

This is exhibit A in the insidious practice of bean-counting. We measure our antitrust enforcers by how many heads they chopped off -- so we can check the numbers and accuse the cops of falling asleep on the job if the numbers go down.

Trouble is, numbers also go up if enforcement becomes ineffective and people violate the law more. They go up if enforcement policy and the agency's interpretation of the law become so complicated that people can't understand what the law requires. They go up generally whenever enforcers take a more punitive approach, even when a more conciliatory approach would be more effective. They go up if the enforcers cherry-pick the easiest cases, instead of the most serious ones. At best, this merely distorts enforcement priorities (speaking of schools . . . "teaching to the test"?); at worst, it corrupts them (the Soviet secret police also worked on a quota system). Anyone remember the Beach Boys song, "Freeway Flyer," about the highway patrol? ("Freeway Flyer, gotta make your quota today . . . .")

Bean-counting also affects the development of the substantive law for the worse. If enforcers are doing a better job when they send executives to prison, presumably Congress is also doing a good job when it passes laws sending more executives to prison, and seems to be heartless or corrupt if it simplifies the law or provides incentives for compliance or allocates more resources to compliance assistance.

Back when I used to do environmental policy, bean-counting was the main way of measuring the achievements of the EPA's enforcement branch; I wrote about the perverse effects of bean-counting on the environmental debate and on the development of substantive environmental laws, and I testified about this when the EPA was looking at "reinventing" that process in light of the Government Performance and Results Act, but I don't know whether anything has changed.

Anyway, now we know that Joel Klein isn't afraid to send executives to prison and that therefore he did a good job at the Antitrust Division. Well, maybe this tells us that he won't be afraid to stand up to teachers' unions . . . but then again, he doesn't have the statutory authority to send them to prison. What exactly are we supposed to learn from this?

UPDATE: Two animals write in with comments. Seth Farber, the talking dog, asks why "a media lawyer admittedly with experience in experience in the very strange antitrust division of the Clinton Administration [Seth thinks it should have been less arbitrary and vindictive, and more active] have the qualifications to run a SCHOOL SYSTEM? . . . I understand where Mike Bloomberg is coming from: he was elected because . . . it was perceived that political experience was a BAD thing for a New York City mayor to have. . . . Thus, concludes Mayor Bloomberg (I guess), anyone with a Harvard degree who works in any aspect of the media biz (the mayor's credentials) must be capable of doing anything else. (Hey, Sasha, are YOU interested in heading a New York City agency?)"

Evan Orensky, a clever sheep, says, "Having been a teacher in the NYC school system several years ago, I was struck by Klein's lack of experience in any kind of school administration. Knowing the way teachers, principals, parents and even school custodians work, nothing in any job he has had is preparation for this." Well, I can see the value in bringing in an outsider -- sometimes it works -- but it's a fair concern. Evan also points out that the bean-counting mentality is widespread in the drug enforcement biz and that my analysis of how environmental or other regulatory priorities are skewed by bean-counting applies equally well to the War on Drugs, and that's of course quite right.

UPDATE 2: Ashlie Warnick, my favorite person (well, up there with her and her), has read Update 1 and tells me it is indeed just like that with the War of Drugs, only worse -- if Agency A gets really good at seizing cocaine, the cocaine shippers get wise and ship it in through Agency B's jurisdiction, so there's less cocaine for Agency A to seize, so Agency A's success makes its seizure numbers go down. We can only overcome this problem if we had accurate information about how much cocaine actually flows through each agency's jurisdiction.

UPDATE 3: Eric McErlain of Off-Wing Opinion (commentary for the free-market sports fan) -- a prospective law student, Garrett take note! -- has his own take on why Joel Klein is going to run a school system: he needs the money and he can't hold down a private-sector job.


INTERESTING USE OF ADAM SMITH: In U.S. v. Taubman, which came down last week, the Second Circuit (in a per curiam opinion, before Judges Cabranes and Straub and District Judge Gleeson) affirmed the price-fixing conviction of former Sotheby's chairman A. Alfred Taubman. (See also the blurb on How Appealing.)

One of the issues in the appeal was that the District Court allowed the prosecutor to use the following Adam Smith quote in his summation:

People in the same trade seldom meet together even for merriment or diversion, but the conversation ends in a conspiracy against the public and in some contrivance to raise prices. (Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 55 (Great Books 1952) (1776))

The court says, after disposing of all the other issues:

The Adam Smith quotation is more problematic. We agree with Taubman that the statement that competitors "seldom meet together . . . but the conversation ends in a conspiracy against the public . . . to raise prices" suggests that knowledge of and participation in an antitrust conspiracy can be inferred merely from the fact of meetings between persons engaged in competing businesses, which is not the law. See Kreuzer v. American Acad. of Periodontology, 735 F.2d 1479, 1488-89 (D.C. Cir. 1984). Moreover, the impermissible suggestion is strengthened by its attribution to the Enlightenment thinker Adam Smith, "the father of modern economics." See Paul A. Samuelson & William D. Nordhaus, Economics 376 (14th ed. 1992).

If, as the Government told the District Court, it "frequently use[s]" the quotation in antitrust cases, Trial Tr. at 1931, then it should reevaluate the practice, and district courts should carefully consider the tendency of any such quotation to taint the jury's understanding of the law. Indeed, were this a case where the Government asked the jury to infer the existence of or a defendant's participation in a price-fixing conspiracy, we might well have vacated the conviction and remanded for a new trial. We now consider the Government to be on notice that future uses of a quotation such as the one used in this case might well prove fatal to its case.

In the instant case, however, the Government relied on the overwhelming direct evidence of Taubman's knowledge of and participation in the conspiracy, as noted above. Accordingly, we conclude that, in the particular circumstances of this case, the inclusion of the Adam Smith quotation in the Government's summation was harmless.

Taubman's still going to jail.

Sunday, July 28, 2002


THERE'S GLORY FOR YOU: Garrett Moritz and John Rosenberg have been arguing for a long time on their blogs about discrimination and disparate impact. In the latest strand of argument, John says it's "worse than awkward for 'discrimination' to mean one thing under the 14th Amendment and something else under the Civil Rights Act or Fair Housing Act." Garrett says, contra:

There are plenty of areas in law and in just everyday language where the same word derives a different meaning from its context. (Compare "The boss is discriminating against minority employees" with "She has very discriminating tastes"; or "He's on fire! Get him the ball!" with "He's on fire! Get a bucket!"; or "Doesn't she look great?" with "Great, yet another disparate impact post"). Words having different or even opposite meanings depending on the context should not in itself be too much of a cause for alarm; we do it every day without even noticing.

My favorite -- Judge Frank in Commissioner v. Beck's Estate, 129 F.2d 243, 246 n.7 (1942), talking about the different definitions of "gift" (that's a word we use for a gratuitous inter vivos conveyance) in the income tax, gift tax, and estate tax:

Perhaps to assuage the feelings and aid the understanding of affected taxpayers, Congress might use different symbols to describe the taxable conduct in the several statutes, calling it a "gift" in the gift tax law, a "gaft" in the income tax law, and a "geft" in the estate tax law.

Without endorsing either John's or Garrett's side here, I think this is a convenient moment to plug a (very) short story I wrote about 12 years ago, called "Together."


TOCQUEVILLE SAYS: "The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs." - Alexis de Tocqueville, 1 Democracy in America 275-76 (Phillips Bradley ed., Alfred A. Knopf 1987) (1835).


FOR THE LOVE OF CHEESE: Stacey, my favorite person (well, almost), sends along this article about the cheesiest musical song ever written. By the way, if you're in Chicago, go see Stacey in these shows.

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