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Saturday, February 01, 2003


THE NEW REPUBLIC ON IRAQ: An excellent editorial.


ROUNDUP I don't have any more interest than anyone else in blogging the same ol' stuff today. But I'll point to a few things: The Economist's profile of Hernando de Soto. This NYT article about the first "State of the Indian Nations" address, and the address itself. I'll read the address and comment on it shortly. John Miller's partly-irritated comment on my TNR piece, to which I'll respond on Monday; Jonathan Adler's reply. Dan Drezner's back from hiatus, and so is Matthew Yglesias.

And now I'm going to go back to reading the news.


"A DOVE'S GUIDE: HOW TO BE AN HONEST CRITIC OF THE WAR": Thoughtful remarks in The Times (London). For obvious reasons, I don't entirely agree with them, but I still found them worth reading.


HITCHENS ON MANDELA: Christopher Hitchens has some very apt thoughts on the folly of Nelson Mandela's recent remarks, and on spurious claims of racism.

UPDATE: Reader Dave Menke likewise applauds Hitchens' article, but points out what seems to be a small error: Hitchens says that Kofi Annan's wife "is a direct descendant of Raoul Wallenberg"; it appears that she's Wallenberg's niece. A tiny quibble, but it's always good to set even the small matters straight.


THUCYDIDES SAID this about a different sort of hero, and yet somehow it also feels right to me for this occasion:
For the whole earth is the tomb of famous men; not only are they commemorated by columns and inscriptions in their own country, but in foreign lands there dwells also an unwritten memorial of them, graven not on stone but in the hearts of men.
Some die to give us freedom. Others to give us knowledge. But they all risk, and sometimes give, their lives for our sake.


HEY, COOL: Edward Rothstein mentions this site in his N.Y. Times column today about the similarities between the diary of Samuel Pepys and blogging.

Friday, January 31, 2003


RELIGION FROM THE BENCH This case has prompted comment from Rod Dreher and Andrew Sullivan.

Three Catholic gay activists were convicted of unlawful entry yesterday
in D.C. Superior Court by a judge who then declined to sentence them, told
them she was sympathetic and went on to apologize on behalf of the Catholic

Judge Mildred M. Edwards, who is Catholic, told the activists that she had to
convict them but that she would do something she had not done in 15 years
on the bench -- dispense with a sentence.

"Tremendous violence was done to you . . . when the Body of Christ was denied
to you," Edwards said, referring to the contention of the three that refusal of Holy
Communion had prompted their actions. "As a member of your church, I ask you
to forgive the church."
At the end of sentencing, Edwards offered the activists the words priests use at
the end of a Catholic Mass: "Go in peace."

Bracket, for a moment, the question of the correctness of the judge's decision. Is anyone else unsettled by a judge, from the bench, speaking from within Catholicism in this fashion? "when the Body of Christ was denied to you...As a member of your church, I ask you to forgive the church." This seems to me the language that is rightly used among coreligionists within the church, not between state officials and citizens in a criminal proceeding. In this context, the judge isn't supposed to be speaking "as a member of your church."

Dreher and Sullivan disagree on the right way to go on the intra-Catholicism disagreement. But I'm disturbed by the judge using the rhetoric of ajudicating the intra-Catholic doctrinal question rather than the civil trespassing/ civil disobedience question.


BROADWAY SHOWS FOR LAWYERS: I chuckled when I read Howard Bashman's post titled "Bring in 'da Noise, Bring in 'da FERC", a title Howard was planning to save for the confirmation of the Bush Administration's first D.C. Circuit judge. Can I assume that a future post about a case raising public choice issues will be titled "RENT-seeking"? Or that a future post about Fourth Amendment law will be titled "Katz"?


Howdy... Thanks to Eugene and the co-Conspirators for inviting me to join them for a month. I'm especially pleased, because this blog was one of a few that inspired me to take up the habit in the first place. A moment to introduce myself:

I'm broadly ideologically sympatico with the Conspirators but come from a different disciplinary direction. I'm not a lawyer, though I do sometimes play one in the classroom, teaching philosophy of law or comparative constitutionalism. I'm a political theorist (the kind with one foot in political philosophy and one foot in political science, not the kind with one foot in political science and one foot in game theory, for those who understand that distinction).

My academic work falls into a few clusters. One is multiculturalism, nationalism, and ethnic conflict, about which I've written a book, The Multiculturalism of Fear (Oxford 2000). A second is the history of liberal thought. Third is the questions surrounding intermediate groups in liberal societies, freedom of association, freedom of religion, and so forth. (I'm currently writing a book about the second and third, together.) And fourth is jurisprudence and constitutionalism. When I opine about political questions unrelated to any of these, it's typically just opinion, not expert knowledge. (I feel strongly about academics not forgetting where the limits of their specialized knowledge lie.) But sometimes I'll bring to bear ideas that are general knowledge within political science but not in general political discourse-- I'm not a specialist in American elections, but by getting training in a political science department you pick some stuff up...

When I talk about geeky stuff like SF and Lord of the Rings, my knowledge may well be specialized, but if so, that's not as a result of my doctoral training. Heh.

It happens that I've never met Eugene or most of the other Conspirators. (I of course don't know whether I've met some of them-- as Eugene explained at one point, he keeps the identities of the pseudonymous folks.) But Todd I've run into, I think, at Institute for Humane Studies events; and Michelle and I went to Brown together, briefly working on together on the long-since-defunct Brown Spectator. We haven't been directly in touch for a long time, but we have good friends in common.

I'm much more of a linguistic prescriptivist than Eugene is. [Note: See Agoraphilia's post.] I post less often than Eugene does, but more often than some of the other co-conspirators.

I've also, just this week, started writing what's scheduled to be a monthly online-only column for The New Republic. The first edition, about the Individual Indian Monies trust fund case Cobell v Norton, is here. Some follow-up material is here and here.

Some links:
I'm not taking down my blog, at least not until after we know whether I'm migrating permanently over here or not. All my archived posts, my blogroll, and stuff like that will remain there.

Here's the basic story o' me; my CV; my regular homepage.

Since I'm not going to migrate my whole left-hand bar over here, I'll (just this once) list a few of the long posts of my own which I list there, to give you a flavor of the sort of thing I go on about: Scholar-bloggers, Voting for parties or for candidates, Randy Cohen, John Rawls.

Enough of that. On to substance...


WARNING: I'm afraid the Dini controversy has yielded a huge number of e-mails, many quite detailed and thoughtful; and this on a day when I have to leave early, and when I have a 2 1/2 hour long appointments committee meeting. I'm afraid that I may not be able to answer most of the mail -- I'm sorry about that, because I try to individually respond (even if ridiculously briefly) to every message I'm individually sent, but when I get a whole bunch, that just stops being feasible.


SHACKING UP: I'm delighted to announce that Jacob T. Levy, a University of Chicago political science professor and a prominent blogger himself, is tentatively joining us for the month of February. He and we view this as an experiment -- "as all life is an experiment," in Justice Holmes's words. After the month, we may pleasantly part ways, or continue as cobloggers. In any event, I'm sure that our readers will find Jacob's posts to be consistently interesting, readable, and thought-provoking.


WHY IS THE D.C. CIRCUIT A "LAUCHING PAD" TO THE SUPREME COURT?: Nearly every story about the nomination of Miguel Estrada to the D.C. Circuit mentions how many D.C. Circuit judges have become Supreme Court Justices. This paragraph that appeared in an article by Neil Lewis of the N.Y. Times today is typical:
If confirmed, Mr. Estrada would become the first Hispanic member of the court, which is widely viewed as second in importance only to the Supreme Court. It has also been a launching pad for the Supreme Court membership; three of its former members are now Supreme Court justices.
It's true that the D.C. Circuit has a reputation as a "launching pad" to the Supremes, and that three current Justices (Scalia, Thomas, and Ginsburg) served as D.C. Circuit judges. But why is the D.C. Circuit the launching pad, and not another court?

    One explanation lies in the dynamics of the nominations process. The D.C. Circuit has often generated future Supreme Court Justices because its judges are of unusually high quality, and they are of unusually high quality because Presidents can pick D.C. Circuit nominees without getting mired in the geographical restrictions or the state politics normally involved with picking nominees to fill openings in the regional circuit courts.

     Say a President wants to fill a spot on a regional circuit court such as the Third Circuit, which covers New Jersey, Pennsylvania, Delaware, and the Virgin Islands. By tradition, each open seat will have a home state: there are New Jersey seats, Pennsylvania seats, and Delaware seats. If a Delaware-based Third Circuit judge retires, the President normally must look for a Delaware lawyer to serve as a replacement. As a result, most candidates to regional circuit courts must be selected from a limited geographical pool, whether or not that p ol has lots of excellent lawyers. And the home state's senators will want to have their say, too, often trying to push friends or political supporters who may or may not be top quality.

     No such restrictions apply in the case of the D.C. Circuit. Federal law exempts the D.C. Circuit from the geographical restrictions that govern the regional circuit courts. See 28 U.S.C. 44(c) ("Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment . . . ") (emphasis added). And there are no D.C. Senators who can weigh in on nominees. As a result, the President can try to find the best person-- or at least the person they really want on the bench-- no matter where the person lives. Usually the President will pick from lawyers who live in or around Washington, D.C., but not always-- and there are so many lawyers here in Washington that there are bound to be lots of impressive potential nominees. As a result, D.C. Circuit judges are unusually likely to have outstanding abilities, which puts them on the short list when there's a vacancy at the Supreme Court.

     Other explanations exist, of course, but I think this is one important dynamic.

Thursday, January 30, 2003


MARK KLEIMAN ON RELIGION, SCIENCE, CREATIONISM, PREJUDICE, AND MORE: A characteristically insightful post touched off by the Dini din.


BLOGGERS OF COLOR: Thanks again to the very same reader who so kindly helped us set up our RSS field -- and who chose to remain anonymous out of sheer modesty! -- we now have color-coded bylines. The colors were arbitrarily selected by me, and should not be understood as commentaries on any of the cobloggers' politics, alma mater, or sexual orientation. (Coconspirators: If you want to change your color to a hitherto unused one, or swap with a blogmate, just e-mail me your preference; but if you want a new color, send me the 6-digit hex code, not a "well, how about something in mauve, or maybe green chartreuse?")

     Why, you might ask? Well, esthetics is its own reason -- but more importantly, this might give people a quick visual cue to who's doing the blogging, so that e-mail responses can be sent to the right blogger.

UPDATE: No, this is not a Reservoir Dogs sort of thing.


MORE ON DINI: Reader Paul Orwin writes the following. I think I generally disagree with him on many of these items, but I thought this was worth passing along:
Interesting set of posts. I think that the legal issues are troublesome, as they push against the legal rights/requirements of academia, as well as religious discrimination notions. Some quick, idle thoughts...

1) Why does a student have a right to expect a recommendation letter from a given professor. Doesn't it cease to be a recommendation if he is compelled to write it?

2) Is Creationism a religion? It isn't religious bigotry to tell someone that you think there opinion is wrong, and that you find that disagreement to be fundamental to your understanding of their character. He didn't say, "I will ask if you are a fundamentalist Christian, and if you say yes, I will not write you a letter".

3) Is it possible to be a good MD and a good Creationist? I would suggest that the answer is no. To be a good MD, IMHO, you need to have a mind open to solving difficult puzzles in very short times. You also need to adapt (heh) to new treatment approaches, and evaluate the scientific merit of these treatments, drugs, etc. In other words, you have to be scientifically literate, and open minded. I don't think I am wrong to suggest that deep belief in Creationism is a strong contra-indicator of these qualities.

4) Evolution IS fundamental to medicine, and more generally to biological science. To give an example from my own field (kinda), the medical establishments response to HIV, and the epidemiology of this disease, is IMPOSSIBLE to understand without basic agreement with the concepts of Evolution. HIV in all likelihood arose by adaptation of a closely related virus in a simian (ape) species. It is well established that viruses, on first acquisition of a new host (i.e. moving from apes to humans), are often very virulent in that new species. Over time, they evolve to form a relationship with their host that is optimal for their survival (note; sometimes this means more virulence, sometimes less). In the case of HIV, there is some evidence that longer survival times for patients with untreated HIV infection are a result of adaptive evolution. There are no shortage of examples. Evolution is fundamental to understanding infectious disease, pediatric medicine, obstetrics, geriatrics, and oncology (off the top of my head). I suspect that experts in every field could supply you with reasons for why this is true in their field as well.

5) Finally, suppose that the professor had asked a different question; "What do you think of the novels of Tom Clancy?" and only recommended students who liked Mr. Clancy's work. Would this be legal? (I suspect so). Would it be ethical? (No) Would there be grounds to stop him? I don't think so. It seems to me that as long as the recommendation exists as a representation of its author's opinion, then he must be allowed to express that opinion, regardless of from whence (??) it derives.


FOR WHATEVER IT'S WORTH: Reader and UCLA law student Art Wille points to an interesting point about Prof. Dini, from Dini's Web page:
My education has taken place almost entirely in Roman Catholic schools. I attended De La Salle High School in Concord, California from 1968-1972 with the intention of becoming a physician. Though accepted to UCLA, I instead chose to enter a Roman Catholic order of teaching brothers (the Brothers of the Christian Schools, known in the U.S. simply as the Christian Brothers). As a young brother, I majored in biology and minored in religious studies at St. Mary's College, Moraga, California. I graduated magna cum laude in 1977 and was assigned by my religious superiors to teach at La Salle High School in Pasadena, California, where I remained for 4 years, teaching various courses in biology and religion and earning a California Secondary Teaching Credential. In 1981, I was assigned to Justin-Siena High School in Napa, California, where I again taught various courses in biology and religion.
I doubt this makes his actions either more or less justified, but it's an interesting tidbit in the human story behind this controversy.


HUGH HEWITT: I ought to be on Hugh Hewitt's radio show today from 5 to 5:20 pm Pacific (at least here in L.A.), talking about the creationism / letters of recommendation case. As usual with the media, this is a tentative plan -- who knows what will happen in the next hour? But I thought I'd mention it, in case any of you might want to listen in.


BELIEF AND BEHAVIOR: [Part 1, of beliefs about facts:] It seems to me that the creationism incident I mention below raises again a fundamental question related to religious tolerance -- what do you do about people who believe things that strike you as false, illogical, or vastly unsupported? Consider two hypothetical people: Anna believes in the Virgin Birth; when you point out to her that all the physical evidence suggests that, absent artificial insemination or some such, virgin birth can't happen in humans, she says "But it did happen; it was a miracle." Ben believes that Mars is made of cheese made with claret (tasty stuff, I'm having some tomorrow). When you confront him with the contrary physical evidence, he says that there are special laws of nature that allow this, and that have deceived our exploratory spaceships. How should we react to Anna and to Ben?

     It seems to me that most of us would conclude that Ben is pretty goofy, and we wouldn't much trust his judgment on other things. But I think that many of us would not conclude the same about Anna (though I think that even those readers who believe in the Virgin Birth themselves would grant me that to those of us who don't share your religion, the notion of a child being born of a virgin is highly implausible, and for sensible reasons). Why is this so, and is this justified?

     I think the answer is yes, but for fundamentally practical reasons more than for theoretical ones. In principle, one could take the view that anyone who believes claims about the physical world that radically contradict our best understanding of the way the physical world operates, based on no evidence other than the opinions of religious leaders and perhaps a personal sense of direct divine relevation, must have a fundamentally unscientific mindset. The trouble is that in practice, many scientists are in fact religious believers, and will at least tell you (if pressed) that they believe in various miracles.

     Perhaps this isn't true of most scientists today, but it's been true of very many. Isaac Newton himself did a good deal of work in theology, and to my knowledge was quite a devout Christian; I'm not positive, but I suspect that he would have quite honestly reported a belief in the Virgin Birth and various other miracles. That suggests that the inference from religious belief, even odd-seeming religious belief, to scientific temperament is in fact likely to be a fairly weak one, especially if one has certain other evidence about the person (the person has done well in science classes, he seems generally interested in science, and so on). You'd think that beliefs (here, the belief in miracles that are inconsistent with the understood laws of nature) and behavior (in this case, the behavior of acting with a scientific approach that assumes the correctness of those laws) would be closely correlated. But it seems to turn out this isn't quite so.

     [Part 2, of beliefs about morality:] The same, I think, in some measure applies to religious beliefs about morality. I've often heard people argue that religious people, and mostly religious societies, are more likely to be moral than irreligious people and societies: First, religion imposes an externally defined and authoritative code of conduct, so people would be less likely to harm others simply because they themselves decide that it's OK to inflict such harms. Second, many religions threaten punishment after death, which ought to deter people from doing even those evil things that they can do with impunity in this world. And yet as best I can understand history, religious people and societies have had aggregate track records that are not tremendously different from those of the secular.

     More specifically, I suppose one might say "I believe that doctors who are pro-life, who oppose abortion, euthanasia, and the death penalty, and who believe that life is a sacred gift from God will be more charitable and zealous than those who think there is no God, and that life therefore may be measured by purely human yardsticks, and sometimes found to be not worth living or preserving." That's not a silly assertion; in the abstract, it might even be persuasive. But in practice, I doubt that this assertion is in fact correct -- I have no way of knowing for sure, but that's my sense from my limited life experience. Again, you'd think that belief might influence behavior, and in some people it does, but I doubt that this comes out in the aggregate.

     [Part 3, of religious toleration:] This, I think, might help explain why we generally do condemn discrimination based on religion. This isn't often seen as a hard question, but it is. Unlike race, religion is an ideology -- a set of beliefs about reality and morality. Race is generally irrelevant to character, but one's beliefs generally are relevant to character. We do treat people differently based on their asserted beliefs in many situations, and that's often quite legal and morally permissible (sometimes even morally praiseworthy). It's not clear to what extent it would be permissible as to letters of recommendation, especially at a public university, but it generally is permissible in many contexts.

     It seems to me that the chief justification for religious tolerance has to be in large measure empirical, drawing on the observations I mention above. My tentative sense is that, in fact (though not necessarily in theory), people's religious beliefs -- at least those beliefs that are shared by tens of millions of people, and that are passed along from generation to generation -- generally don't predict their behavior that well, and certainly not nearly as well as those with other religious beliefs would assume. Moreover, religious beliefs are extremely important to people, and discrimination based on those beliefs causes much more friction, on balance, than discrimination based on political beliefs (one can of course come up with specific counterexamples, but I think it's true on balance). Religious tolerance is an important tool for preserving social peace, and one that comes at a possibly surprising low efficiency cost, because inferring people's likely future behavior from their religious beliefs is often surprisingly unreliable.

     Now I may be wrong on all this; these are tentative and empirical judgments, which might well be mistaken. If they really are mistaken, then I think the case against religious discrimination, and for religious tolerance (or at least religious tolerance that goes beyond political tolerance), generally becomes much weaker. But to the extent that one does endorse a principle that religious discrimination is generally unsound, it seems to me that the strong support for this principle must come from these sorts of empirical judgments.


CLAYTON CRAMER ON DOCTORS AND EVOLUTION: Clayton Cramer has some excellent points about the weaknesses in Dini's empirical argument.


REGULATING THE NET My friend and colleague Michael Froomkin, with whom I am a sometime collaborator at the IcannWatch site, posted an ICANNWatch story about a speech by the head of the International Telecommunications Union, Yoshio Utsumi. Most of you have probably not paid a lot of attention to the comings and goings of ICANN, the Internet Corporation for Assigned Names and Numbers, which has over the past 4 years or so taken over management of the Internet's domain name system. But the ICANN story is an important one, I think -- ICANN, at least in theory, has its hand on the Internet's throat, the one point of control that could, in the wrong hands, become a serious threat to freedom and freedom of expression on the net.

     In theory. Things have not spun quite that badly out of control, up to now. Enter Mr. Utsumi. The ITU has been looking for ways to take over ICANN's functions and, in some ways, such a move makes sense; the ITU has managed to perform the task of handing out numbers for the global telephone network without any politicization of the enterprise, and perhaps they could do the same for Internet names and numbers.

     Mr. Utsumi, though, gave voice to what a lot of us have been afraid of for a while -- that the ITU should help put together "an international legal framework for cyberspace," without which "the free, secure use of cyberspace will not be possible." "We need a common framework or regulatory regime because [the information society] is borderless, and we have to create this new framework," he said. "I am not intending to solve any specific problem with this conference but to [get agreement on] a shared view that we have to solve the problem of [issues such as] taxation, cybercrime or confidence in the Internet."

     Ouch. I don't know about you, but when I hear UN bureaucrats (the ITU being a UN operation) talking about a "common regulatory regime," and a "shared view . . . to solve the problem . . . of taxation [and] cybercrime," I get a tad nervous. Somehow, cyberspace has managed to become a pretty damned interesting place without a UN-coordinated "international legal framework," and, call me what you like, my guess is that it is more likely to stay that way without a Geneva-based "solution" to all of its "problems."


MORE ON EVOLUTION: Reader John Carney writes:
One problem with Dini's position is that it gives support to the claim that the scientific community is dogmatic on the question of evolution.

To put it differently, what good is pointing to a consensus in the scientific community on the question of the origins of human life if holding a certain opinion is mandatory for admission? Dini is only one professor, and I have no idea how widespread such anti-creationist policies may or may not be, but critics of evolution widely suspect that the scientific community is blackballing dissenters. Is it a good idea to confirm such suspicions?


LETTERS OF RECOMMENDATION, DOCTORS, AND EVOLUTION: Reader Mel Park, who's an Associate Professor in the Anatomy & Neurobiology Department at U Tenn, writes:
By virtue of being a member of the admissions committee of our college of medicine, I am a consumer of letters of recommendation from undergraduate professors. Your fourth argument, "Against Dini" under academic ethics arguments, best reflects the views, as well professional obligations, of admission committees in medicine. One's interpretation of the fossil record is indeed very far removed fromthe practice of medicine. In fact, it has nothing to do with it. I would add, however, that such distance is not necessary. One can be a very fine geologist and still be a creationist so long as you can see the fossil record and work with it. From a pragmatic point of view regarding medicine, there are already many fine doctors who believe in creationism. What would Dini have us do with them?


WORDS OF WISDOM: Reader Geoff Newbury passes along the following (author unknown):
The saying is that "Wisdom comes with Age." But sometimes Age comes alone.


INTERVIEWS WITH IRAQI SCIENTISTS: William Saletan's Saddameter points out that
Iraqi scientists' record of refusing private interviews with inspectors rises to 15-0
(citing a Washington Post story). Pretty telling, it seems to me.


AND SPEAKING OF BOYCOTTS: Claire Berlinsky has a great article in the Weekly Standard on the proposal by the adminstrative committee of the Pierre and Marie Curie University in Paris (known as "Paris 6") to call on the EU to boycott cooperation with Israeli scientists. Shameful stuff, and Berlinsky nails it well.


LONG NORMAL WORDS: The long normal word problem yielded more 60 than messages, and nearly all the words were submitted by multiple people, so I'm afraid I can't credit everyone by name. (I also can't respond individually to each e-mail, though I usually try to do that). Here are the best answers I've seen; I include several just because different people may find different words more "normal":
  • Counterrevolutionaries (22).
  • Antidisestablishmentarianism, on the theory that it's become "normal" in its capacity as an example of a very long word. I don't quite buy the explanation, but I liked it enough that I thought I'd pass it along.

  • Deinstitutionalization (22), for instance of the mentally ill. As some people pointed out, googling the words gives one some sense of their normality, and this one gets lots of hits, and not just in technical contexts.

  • Overintellectualization (23). Not quite "normal" in my book, and gets relatively few google hits, but some might like it.

  • Anthropomorphologically (23). Same as above.

  • Countercountermeasures (22). Same as above.

  • Greatgreatgreatgrandfather (26). Not used that often, but I doubt that listeners would find it abnormal if they heard it used.
That's that for that.


BUSHISM OF THE DAY: We provide the context, because Slate doesn't. I realize why it doesn't: It's trying to be funny, and seeing something in context makes it less funny than when you see it out of context. But it also make the piece a bit more fair, and it seems to me that this should count for something too. Here's a today's Bushism of the Day:
"The war on terror involves Saddam Hussein because of the nature of Saddam Hussein, the history of Saddam Hussein, and his willingness to terrorize himself."
Here's the full paragraph from the speech:
The war on terror is not confined strictly to the Al Qaida that we're chasing. The war on terror extends beyond just a shadowy terrorist network. The war on terror involves Saddam Hussein because of the nature of Saddam Hussein, the history of Saddam Hussein and his willingness to terrorize himself. Saddam Hussein has terrorized his own people. He's terrorized his own neighborhood.
Sure, the "himself" was an inapt word choice; on the other hand, imagine yourself listening to someone reading that paragraph, with the proper emphasis (among other things, on the word "himself," meaning his own willingness to terrorize, rather than just al Qaeda's willingness). Would it really be that ambiguous or that funny? And if it wouldn't, might it be nice for Slate to at least provide a link to the full context?


PROFESSOR REFUSES TO WRITE LETTERS OF RECOMMENDATIONS FOR CREATIONISTS: A reader passes along an AP story about Texas Tech Prof. Michael Dini, who says on his on his Web page:
If you set up an appointment to discuss the writing of a letter of recommendation, I will ask you: "How do you think the human species originated?" If you cannot truthfully and forthrightly affirm a scientific answer to this question, then you should not seek my recommendation for admittance to further education in the biomedical sciences.
A student has filed a religious discrimination complaint with the Justice Department based on this. Here's what the student's lawyer's say:
[T]he Liberty Legal Institute . . . calls Dini's policy "open religious bigotry."

"Students are being denied recommendations not because of their competence in understanding evolution, but solely because of their personal religious beliefs," said Kelly Shackelford, chief counsel for the institute.
Here's what the university says:
Texas Tech spokeswoman Cindy Rugeley said that the university stands by Dini, and that his policies do not conflict with those of Texas Tech.

"A letter of recommendation is a personal matter between a professor and student and is not subject to the university control or regulation," Texas Tech Chancellor David Smith wrote in October in response to an earlier letter of complaint.
Here's what the student says:
Spradling, 22, wants to become a physician and said he needed a letter of recommendation from a biology professor but, as a creationist, he said he couldn't "sit there and truthfully say I believe in human evolution."

"It's a theory. You read about it in textbooks. I could explain the process, maybe how some people say it happens, but I could not have said ... I believe in it," Spradling said Wednesday. "I really don't see how believing in the evolution of humanity has anything to do with patient care or studying science."
Here's what the professor says on his Web page:
Why do I ask this question? Let’s consider the situation of one wishing to enter medical school. Whereas medicine is historically rooted first in the practice of magic and later in religion, modern medicine is an endeavor that springs from the sciences, biology first among these. The central, unifying principle of biology is the theory of evolution, which includes both micro- and macro-evolution, and which extends to ALL species. How can someone who does not accept the most important theory in biology expect to properly practice in a field that is so heavily based on biology? It is hard to imagine how this can be so, but it is easy to imagine how physicians who ignore or neglect the Darwinian aspects of medicine or the evolutionary origin of humans can make bad clinical decisions. The current crisis in antibiotic resistance is the result of such decisions. For others, please read the citations below.

Good medicine, like good biology, is based on the collection and evaluation of physical evidence. So much physical evidence supports the evolution of humans from non-human ancestors that one can validly refer to the "fact" of human evolution, even if all of the details are not yet known. One can deny this evidence only at the risk of calling into question one’s understanding of science and of the method of science. Such an individual has committed malpractice regarding the method of science, for good scientists would never throw out data that do not conform to their expectations or beliefs. This is the situation of those who deny the evolution of humans; such a one is throwing out information because it seems to contradict his/her cherished beliefs. Can a physician ignore data that s/he does not like and remain a physician for long? No. If modern medicine is based on the method of science, then how can someone who denies the theory of evolution -- the very pinnacle of modern biological science -- ask to be recommended into a scientific profession by a professional scientist?
Here's what I say: I'm not sure (at least right now). There are two questions here, one of law (may Dini have this policy, and may the law force him to abandon this policy?), and one of academic ethics (is Dini right to do this?), and both are complex. Here is a nonexclusive set of the chief legal arguments:
  • For Dini: Letters of recommendation involve the professor speaking in his own name, and expressing his own views; therefore, he has a First Amendment right to write them or not write them as he pleases. "Does that include refusing to recommend blacks or Jews or women or Republicans?," you ask. Under this theory, the answer would be yes.

  • Against Dini: Letters of recommendation are part of the education that the university offers the students, and the university may have the power, acting as an employer, to require professors to treat people equally as to the writing of such letters, without regard to their religious (or political or other) beliefs. Furthermore, professor who's writing these letters is acting in his capacity as part of a government institution, and thus the university must insist that the professor treat people equally without regard to religious beliefs, since otherwise the university would be violating the Free Exercise Clause.
Likewise for academic ethics arguments:
  • For Dini: A letter of recommendation represents the professor's view that the person is likely to be a good user of the material learned in the class, and more generally a successful thinker and professional. For the reasons that Dini gives, a student who doesn't believe in evolution is likely not to fit those criteria.

  • Against Dini: In fact, human experience shows that people can be good scientists -- and good doctors -- even if they believe some things that scientists see as "unscientific" (the virgin birth, the resurrection, the parting of the Red Sea, and so on) and even if we think they're foolish to believe them. This is especially so if the beliefs are pretty far removed from the everyday practice of the person's profession; and in particular, one can be a great doctor even if one believes in creationism. Moreover, professors should be tolerant of people's different views, and even if they think some view is foolish, err on the side of not considering it in letters of recommendation unless there really is a very strong likely correlation between holding this view and being unsuccessful.
In any case, that's my tentative thinking on this fascinating case.


LONG BUT NORMAL WORD UPDATE: We now have some 22-letter words -- so if you have one that's 23 or longer, please do pass it along.


SMOKING GUNS: So here's the question about whether we've found a "smoking gun" in Iraq: What is the role of smoking guns in the context from which the term is derived, which is murder prosecutions? Well, someone standing over a body with a smoking gun in his hand provides a pretty strong case for conviction. But a tiny, tiny fraction of all murder convictions involve this scenario; and even if one uses the term figuratively to one piece of visibly damning evidence, that too is present in only a small portion of convictions.

     The criminal justice system has long recognized that convictions can also be obtained -- in fact, must be obtainable -- from patterns of evidence, where each element isn't that damning on its own, but where the aggregate is highly incriminating. No smoking gun, but yes guilt. Same, I think, is true as to Hussein.


QUANTUM TELEPORTATION Yes, its true; the NYTimes reports that scientists have succeeded in destroying particles of light and then recreating exact copies of them more than a mile away. Einstein called this sort of thing "Spooky action at a distance" -- a nice phrase, no? -- and Dr. Hugo Zbinden had this to say when asked whether this meant that human teleportation could become a reality: given that only a small proportion of the light particles could be successfully teleported, and given that teleportation of a human being would require successfully recreating trillions upon trillions of particles, "You're not very sure to arrive" if you, say, try this at home.


GENDER, SEX, AND JUSTICE GINSBURG: Reader Peter Mason reminded me of a rumor that I'd heard, and I tracked it down to words credited to Justice Ginsburg herself (by the St. Louis Post-Dispatch, Nov. 20, 1993, at 7A):
Supreme Court Justice Ruth Bader Ginsburg brought gales of laughter at her old law school Friday when she explained why she started using the term gender discrimination instead of sex discrimination.

"I owe it all to my secretary at Columbia Law School, who said, 'I'm typing all these briefs and articles for you and the word sex, sex, sex is on every page,'" Ginsburg said.

"'Don't you know that those nine men (on the Supreme Court) -- they hear that word, and their first association is not the way you want them to be thinking? Why don't you use the word gender. It is a grammatical term and it will ward off distracting associations.'"


WHO'S GOING IT ALONE? The leaders of eight European nation have co-authored an open letter in the London Times calling for unity and cohesion in Europe and a united front against Saddam Hussein. As the Times reports, the letter from the leaders of Great Britain, Spain, Italy, Portugal, Hungary, Poland, Denmark and the Czech Republic can only be viewed as a "calculated rebuff" to the obstructionism of France and Germany. Whereas French diplomats suggest the inspection process is working, the European letter comes to a different conclusion: "Sadly this week the UN weapons inspectors have confirmed that his long-established pattern of deception, denial and non-compliance with UN Security Council resolutions is continuing." Critics of the President's stance on Iraq have complained that the United States risks going it alone should it take action against Iraq. This letter should make clear that France and Germany are the ones going it alone.

[Speaking of unilaterlism, how come we don't hear much about France's decision to send troops into the Ivory Coast? Just wondering.]


MULTIPLE FACTORS: Michael Kinsley's Slate column repeats an argument that I've always found singularly unpersuasive:

In his most vivid passage, Bush listed practices of Saddam Hussein such as destroying whole villages with chemical weapons and torturing children in front of their parents. "If this is not evil, then evil has no meaning," he said, telling "the brave and oppressed people of Iraq" that "the day he and his regime are removed from power will be the day of your liberation."

This is a fine, noble reason to wage war against Iraq. It would have been a fine reason two decades ago, which is when Saddam destroyed those villages and the United States looked the other way because our bone of contention back then was with Iran. It would be a fine reason to topple other governments around the world that torture their own citizens and do other despicable things. Is the Bush administration prepared to enforce the no-torturing-children rule by force everywhere? And what happens if Saddam decides to meet all our demands regarding weapons and inspections? Is he then free to torture children and pour acid on innocent citizens without fear of the United States?

If Saddam's human-rights practices morally require the United States to act, why are we waiting for Hans Blix? Or if the danger that Saddam will develop and use weapons of mass destruction against the United States justifies removing him in our own long-term self-defense, what does torturing children have to do with it? Bush was careful not to say explicitly that Iraq's internal human-rights situation alone justifies going to war -- though he was just as careful to imply that it does. But Bush has said clearly and often that Saddam's external threat does justify a war all by itself. So, human-rights abuses are neither necessary nor sufficient as a reason for war, in Bush's view, to the extent it can be parsed. Logically, they don't matter. That makes the talk about the torture of children merely decorative, not serious.
This, it seems to me, makes sense only if you think that speakers must only supply those reasons that they themselves find necessary and sufficient -- and it completely ignores speakers' need to persuade others who have a different view.

     Say that someone is arguing in 1850 in favor of abolishing slavery, and deep down inside he believes that slavery must be abolished because it's immoral, no matter what; but he knows that not everyone agrees with him. Some people don't care about morality, but only about their own prosperity. Others care about morality, but are willing to accept things they think are wrong if they think that stopping them would be too costly. Others care about other things. So the speaker says "Abolish slavery -- it's morally wrong and free labor would create a wealthier country than slave labor can and it's making us look bad to the Europeans [assume this is factually true] and it erodes the morals of slaveowners and it lets slaveowners compete unfairly with free laborers."

     There's nothing "[un]serious" about these arguments. True, the speaker might think morality is a necessary and sufficient reason for abolition; but so what? To accomplish his goal, he has to persuade people who don't share his view. He therefore points to other genuine harms caused by slavery, hoping that these multiple overlapping justifications will convince more people. What's wrong with that?

     Likewise with Bush and Hussein. Bush may well believe that Hussein's threat to the U.S. is a sufficient reason for us to attack Iraq. But he knows that others don't fully agree; some, for instance, are uneasy about the harms that a war would inflict on Iraqi civilians. Even if Bush thinks those harms are irrelevant to the decision whether to fight, why shouldn't he point out that the war may actually on balance benefit Iraqis, by freeing them from Hussein's heinous abuses?

     More broadly, smart politicians know they have to appeal to people who have diverse views. A single justification often won't carry the day with all those people; a combination of many justifications, all pointing in the same direction, often will. If the arguments do point in favor of the policy, there's nothing wrong or unserious about a political leader making all those arguments, even if the leader thinks that, in his own judgment, some are not strictly necessary -- and this may in fact be the best strategy for persuading as many people as possible. In a misguided pursuit of philosophical elegance, Kinsley seems to have skipped this basic point about persuasion.

Wednesday, January 29, 2003


THE TERRORIST THREAT INTEGRATION CENTER: The President’s State of the Union address yesterday mentioned a plan to create a Terrorist Threat Integration Center (TTIC), which according to the White House web page is a plan to create a government office where terrorist threats can be evaluated. As best I can tell, almost all of what we know about TTIC comes from this White House press release:
   The New Terrorist Threat Integration Center

   Elements of the Department of Homeland Security, the FBI's Counterterrorism Division, the DCI's Counterterrorist Center, and the Department of Defense will form a Terrorist Threat Integration Center to fuse and analyze all-source information related to terrorism. The Terrorist Threat Integration Center will continue to close the “seam” between analysis of foreign and domestic intelligence on terrorism. Specifically, it will:

*Optimize use of terrorist threat-related information, expertise, and capabilities to conduct threat analysis and inform collection strategies.
*Create a structure that ensures information sharing across agency lines.
*Integrate terrorist-related information collected domestically and abroad in order to form the most comprehensive possible threat picture.
*Be responsible and accountable for providing terrorist threat assessments for our national leadership.

    The Terrorist Threat Integration Center will be headed by a senior U.S. Government official, who will report to the Director of Central Intelligence. This individual will be appointed by the Director of Central Intelligence, in consultation with the Director of the FBI and the Attorney General, the Secretary of Defense, and the Secretary of Homeland Security.
    The Terrorist Threat Integration Center will play a lead role in overseeing a national counterterrorism tasking and requirements system and for maintaining shared databases.
    The Terrorist Threat Integration Center will also maintain an up-to-date database of known and suspected terrorists that will be accessible to federal and non-federal officials and entities, as appropriate.
    In order to carry out its responsibilities effectively, the Terrorist Threat Integration Center will have access to all intelligence information——from raw reports to finished analytic assessments——available to the U.S. Government.
    A senior multiagency tea will finalize the details, design, and implementation strategy for the stand-up of the Terrorist Threat Integration Center.
     What should we make of this proposal? The press release alone doesn't tell us much, but the proposal raises serious and important questions. No doubt we'll be hearing a lot more about TTIC over the next few weeks. As you might expect, the proposal has already come under criticism, based on the press release alone, of the “we don’t know what this is, but there’s a chance that the government is planning to do something really sinister” variety (such as this ACLU press release), as well as speculative news stories of the “our government is planning to do sinister things” variety (such as this report by Declan McCullagh).


LONGEST NORMAL WORD: So here's a question that somehow bubbled up in my head -- what's the longest word in English that you can use without people thinking "my, that's a long word"? "Antidisestablishmentarianism" is obviously out; the words needs to be a more common term than that. I've come across one that's 18 letters long; if you have a longer one, e-mail it to volokh at

     Yes, I know that "normal" and "without people thinking 'my, that's a long word'" are very subjective -- wanna make something of it, buddy? I'll be the first and final judge here.


NOMINEE PLEADS WITH SENATORS: The Washington Post runs an AP story that is headlined "Sutton Pleads With Senators at Hearing," and that starts with (thanks to How Appealing for the link):
A federal judicial nominee pleaded with senators Wednesday not to hold his work as a lawyer against disability rights and federal civil rights against him, saying he was only arguing for his clients' views and not for his personal positions.

Jeff Sutton, who is looking for a seat on one of the nation's highest courts, said he has represented all types of people and organizations as a lawyer -- including murderers -- guaranteeing that some members of the Senate Judiciary Committee will disagree with his clients.

"I don't stand a chance in trying to become a judge if one looks at all of my clients and decides whether they agreed with their views," he said.

Democratic senators criticized Sutton for attempts to limit federal civil rights protections and gut or weaken protections for state employees with disabilities and older workers. The Columbus, Ohio, lawyer argued successfully in a Supreme Court case in 2000 that Congress exceeded its authority by permitting state workers to sue their states under the Americans With Disabilities Act.

"How can we be sure you're not going to continue that agenda when you're on the court?" asked Sen. Edward Kennedy, D-Mass.

"I'm trying very hard to show you that I would be an objective judge and that the client I would have is . . . the rule of law, not a former client," Sutton said.

In addition, Sutton said he's also worked on cases and wrote briefs that even Democrats can agree with, "whether it was defending Ohio's set-aside statutes in two different cases, or defending Ohio's hate crimes statutes on behalf of virtually every civil rights group in the state, whether it was writing an amicus brief voluntarily in the 6th Circuit on behalf of the Center for the Prevention of Handgun Violence."
So here's my question, which I can't answer myself because I didn't watch the hearing and haven't read the hearing transcript -- is it quite right to describe Sutton's conduct as "pleading"? Pleading has different connotations in different contexts, but here it seems to suggest a certain lack of dignity: not just stating the case for why he's a worthy nominee, but begging the Senators for a favor. It would surprise me if Sutton acted that way (I don't know him personally, but it's just not the sort of behavior that I'd expect from someone in his position and with his credentials). Can anyone comment on whether the "pleading" label is merited, or whether the AP story might have (intentionally or not) been a bit unfair to Sutton on this?


LEGAL ARGUMENT AND PERSONAL BELIEF: I've been watching bits and pieces of Jeff Sutton's confirmation hearing, because Jeff's a friend from long ago. (It was a bit of a jolt when Jeff was nominated to the 6th Circuit. It made me feel old.) Most of the questions from Democrats are about whether Jeff "really believes" particular arguments he made in Supreme Court briefs in cases with outcomes the Senators don't like. Jeff's response is always a variation on: "I'm a lawyer; my job is to make arguments that help the client, not to tell the client or the court what I really believe." The Senators don't seem very happy to hear this.

     I sympathize with both sides of the impasse. Jeff's obviously right that the system is set up so that lawyers don't vouch for the abstract justice of the legal arguments they make. They just try to win. On the other hand, the only way Senators can normally get a sense of a nominee's views is to read what he has written, and legal arguments are what practicing lawyers write. So both sides are stuck with the question of how much to infer personal belief from legal argument.

     The interesting thing about all this is how it replicates the tension between the conception of a lawyer's role held by lawyers and the conception often held by non-lawyers. Anti-lawyer sentiment is very old, and one of the standard reasons for it is the sense that lawyers are unprincipled people, because they will argue any side of a question if someone is willing to pay them. There's a hazy but I think widely-held sense in which argument has an ethical dimension, in that taking one side of an argument is implicitly to vouch for one's personal belief in the rightness of that side, and that to argue on a different side is accordingly to misrepresent one's true self. That non-lawyer suspicion of lawyers is what gives resonance to the Senators' questions.

     Then again, I suppose most of that resonance is lost when one remembers who is asking the questions. If there is anyone who has forfeited the right to ask questions premised on the assumption that there is something wrong with making public statements that aren't motivated by personal belief, it is a politician.


PAUL CRAIG ROBERTS IS AT IT AGAIN: Columnist Paul Craig Roberts -- whom I've criticized before for his complaints about "international-looking people", misstatements of what the Framers believed, and excessive and unsupported rhetoric about race preferences and free speech -- has another remarkable column today.

     I leave it to others to analyze Roberts' substantive criticisms of the Bush Administration's Iraq policy, from the assertion that an invasion of Iraq "has the support of only two overlapping small groups: neoconservatives infused with the spirit of 18th century French Jacobins who want to impose American 'exceptionalism' on the rest of the world, and foreign policy advisers who believe that the primary aim of U.S. foreign policy is to make the Middle East safe for Israel," to the claim that "Abroad, there is no meaningful support" (England, anyone?) and on. What most struck me, though, were the last three paragraphs, which returned to a frequent Roberts refrain:
While Bush prepares to violate Iraq's borders, our own are being overrun by people who are legally defined by the federal government as "preferred minorities." The "preferred" designation means that new immigrants, legal or illegal, by basis of skin color are preferred to native-born white people in university admissions, federal contracting, private employment and promotions. This unconstitutional policy of reverse discrimination against native-born whites has been growing in magnitude for almost four decades, and no administration has done anything to stop it.

Sooner or later, whites will wake up to the realization that they are being marginalized in their own country, and they will cease to support the two political parties that have marginalized them.

It wasn't Saddam Hussein who made white Americans second-class citizens in law. And it is not Saddam Hussein who is overrunning our borders. Bush finds it easier to go to war than to deal with the attacks on American identity at home.
As I've mentioned before, I'm no fan of race preferences, whether they favor immigrants or the native-born. But the author's last sentence seems to me to give away his agenda, with its complaint about attacks on American identity. Even if you accept that whites are somehow "marginalized" (pretty excessive hyperbole, it seems to me, given that despite the improper policy of race preferences, whites seem much closer to the center of political, economic, and cultural life in America than to its margins), what does this have to do with American identity?

     Here's the only interpretation that I can possibly place on this -- and it seems to me quite consistent with the author's earlier columns: To him, "American identity" is "white American[]" identity. That would explain how one can tell who are "international-looking people" (non-whites, while whites are presumably American-looking people). That would explain why immigration constitutes, in his view, "ethnic[] cleans[ing]". That also ties into his earlier juxtaposition of "white culture" and "American culture":
Does this lack of good will toward "white culture" mean the portraits of George Washington and Thomas Jefferson will be removed from our currency and their historic homes, Mount Vernon and Monticello, closed? If mass immigration means the extinction of American culture, we had best rethink it.
and his use of a seemingly American-born black city councilman with an overwhelmingly American-born constituency as evidence of the supposed "demise of the native-born".

     Am I misunderstanding the columnist's points? Or am I correct in inferring that the author's vision of American identity is limited not just to the native-born, but to one particular race among the native-born? If I am, then it's a shame that the anti-race-preferences movement (which I support) and the anti-immigration movement (which I do not support, but which I think makes some serious claims that deserve serious consideration) are being represented -- and represented in leading conservative publications, such as the Washington Times and -- by authors such as this.

     (Thanks to reader Tom Sylvester for pointing me to this column.)


MORE FOOTNOTES: I had to cut quite a bit of material from my Slippery Slopes piece, mostly references to extra sources and detailed quotes from sources. I promised, though, in the first footnote that I'd put this extra material up on the Web at, and I just did that. (The article should be published in a week or two, so I made it just in time.)

     I wonder whether this is becoming a new pattern -- include some important source references in the printed version, but put others online instead. I'm not sure whether it's a good idea; does the legal academy really need more footnote material? But I thought it helpful here, and I suspect others are doing the same.


THE REVERSE TINKERBELL EFFECT -- YOU HEARD IT HERE FIRST Last week I posted a request seeking a name for, and examples of, a strange phenomenon: hypotheses or theories that actually become more true as fewer people believe that they are true (and vice versa -- that become less true as more believe that they are true).

     I got a flood of ideas and suggestions and examples -- thanks to everyone who responded (I tried to acknowledge all emails directly, but may have forgotten someone . . . ). First, some of the examples to add to my original one (the "efficient capital market" hypothesis):
  • Voting: The more you think your vote matters, the more likely you are to vote, and the less your vote matters. If everyone thinks his/her vote doesn't matter, they'll stop voting -- in which case their votes do matter. [From Jon Klick]

  • Y2K: The more people were convinced that Y2K computer problems would be a disaster, the more resources were devoted to fixing it, and so the less likely it was to be a disaster. [Jimmy Wales]

  • Driving: The more that people are convinced they're likely to die in a car accident, the more cautiously they'll drive, and the less likely they are to die in a car accident. [same]

  • Travel Destinations: The more that people think X is a quiet and unspoiled spot, good for solitude and contemplation, the less quiet and unspoiled it will become. (why it's impossible to study at most libraries) [same]

  • Dystopia: The more people who read and believe the future of "Fahrenheit 451," or "1984," the less likely it is that such a dystopia will come to pass; the more that such visions are neglected, the more likely they become. [Jeff Melcher]

  • Charity: The more people think that, say, the March of Dimes really needs money, the less money it will need. [Michael Williams]
As for names for this phenomenon, I got some beauties:
  • self-imploding prophesies

  • Inverse Credibility Rule

  • Self-cancelling hypotheses

  • the paradox of belief

  • Strange Loop (from one of my favorite books -- Hofstadter's "Godel, Escher, Bach")

  • self-defeating certainties

  • self effacing prophecies

  • untruisms

  • Geffen predictions (derived from the concept of the "Geffen good" in economics, a good which behaves counterintuitively -- i.e., instead of an inverse correlation between demand and price, there is a direct correlation)

  • self-negating prophecies

  • self-defeating prophecies

  • wrong direction fallacies

  • the truth that dare not speak its name
But in the end, my favorite was (from Patrick Hynes): the Reverse Tinkerbell Effect. The Tinkerbell Effect is named after Peter Pan's fairy friend, derived from that moment in the play when little Tink's light starts to dim and Peter explains to the audience that Tink is ill, and might just die, because nobody believes in fairies anymore. Peter than exhorts the audience to believe in fairies, getting everyone to clap and to cry out "I believe!" -- after which Tinkerbell recovers and everyone feels wonderful. The *reverse* Tinkerbell effect,therefore, occurs when the more you believe in something, the more likely it is to vanish.


"HITLERISM": Tacitus correctly upbraids people who suggested that Bush somehow erred in his mention of "Hitlerism," a well-established term.


BLESS THIS INTERNET The Washington Post reports today that the Vatican has begun efforts to name a patron saint for the Internet. Really.


DEPARTMENT OF LANGUAGE POLICE, BUSH BRIGADE: Reader Bruce Bartlett reminded me of the fuss about Bush saying "Grecian" instead of "Greek" during the presidential campaign -- an article in the Times (London), Aug. 20, 2000, for instance, claimed:
Bush has a propensity to mispronounce simple words and has invented others, such as "Grecians" for Greeks.
The trouble is that "Grecian" is a synonym for "Greek," as the American Heritage Dictionary says, though it has an archaic flavor (my New Shorter Oxford lists it as archaic, but also cites Shakespeare for this ["Was this fair face the cause . . . Why the Grecians sacked Troy?"], pretty clearly refuting any Bush claim to authorship).

     The problem with Bush's use of "Grecian" isn't that it was erroneous. Rather, it's that the use was unidiomatic -- ordinary English speakers don't speak this way when talking about Greeks -- and this is therefore some evidence (though on its own very weak evidence) that the speaker hadn't really heard or talked much about Greeks and other foreigners. And this is often the case with claims of linguistic error: There may indeed be a serious objection to be made, whether it relates to precision, accessibility, elegance, or evidence of familiarity with the underlying material -- but saying that the usage is simply incorrect is itself simply incorrect.


RSS FEEDS FOR SITES THAT DON'T PROVIDE THEIR OWN: David Janes' Blogosphere aggregation project has a new feature -- it's providing RSS feeds for sites that don't provide their own. I'm not terribly knowledgeable as to RSS, so I can't judge this myself; but what I've seen of Janes' stuff before is quite impressive. If I have more trouble with Blogger's RSS, I may well switch to Janes' version.


ACADEMIC SUPPORT: Reader John G. Fought, who was a professor of linguistics at U. Penn. from 1967-95 comes to my defense in my subversive campaign:
I assure you that it is perfectly safe and highly desirable to ignore the whole tribe of prescriptivist language commentators. Their rules have no real foundation. As far as I know, not one of the regulars has any training in how language actually works, nor is there any coherent body of grammatical doctrine to support their dicta. These are just their personal preferences, superstitions, and outdated, Classics-based pedantry from traditional grammar. As a well-read professional, you have at least as much claim to expert standing as any of them. Go with your gut. If you want to rely on citation-based reference
works on American English, stick with Merriam-Webster's publications (I briefly worked for them, but not on English-language materials) and the most recent Oxford works on American English. I especially recommend the M-W Dictionary of English Usage as an antidote to the many other such books of "don'ts" out there, and their latest Collegiate Dictionary for up-to-date vocabulary answers.
Now I'm not sure whether my bringing in a professor of linguistics will strengthen my position with the objectors or weaken it, but there it is.


PRO-CHOICE: Cato's David Boaz has a good piece criticizing the Democrats' selective affection for "choice" (thanks to InstaPundit for the pointer) -- but while I think the article is persuasive in its own way, it simply highlights the broader difficulty with casting the rhetoric in "choice" terms.

     Not all choices are good; if abortion is murder, then the right to choose to murder someone isn't the sort of right that people should have. Likewise, if you think broad private gun ownership causes more killings and other crimes than it prevents, and banning or severely restricting private gun ownership would save thousands of lives, the right to choose to own a gun (which Boaz advocates in the piece) might also not be the sort of choice that we should give people. Even libertarians, for very good reason, would oppose my right to "choose" to take your property, or to breach my contract with you, or to do other things that violate your rights.

     There are very good arguments for letting people choose whether to have an abortion, whether to own a gun, whether to use marijuana, and so on. But to be valid, these arguments can't just praise "choice" in the abstract -- they have to explain (whether they come from liberals, conservatives, moderates, or libertarians) why this choice is legitimate, and why it doesn't (contrary to opponents' claims) infringe the rights of others or create serious harms for society or some such.


LIFE IMITATES THE ONION, PART 927: The Evening Standard (London) reports that:
Dobby, the computer-animated elf in the new Harry Potter film, could be at the centre of a court battle over his resemblance to Russian president Vladimir Putin.

A Russian law firm is reportedly drawing up legal action against the special effects people who dreamt up Dobby, arguing that the ugly but caring elf has been modelled on Mr Putin. . . .
There's even a cool photographic comparison -- and the similarity is eerie. I'm assuming this is mostly a gag, but who knows? Thanks to reader Regina Cullen for the pointer.


LAWPROF CASS SUNSTEIN FISKS THE PRECAUTIONARY PRINCIPLE: Well, not quite -- fisking isn't his style -- but he still powerfully argues against it in an article in Cato's Regulation, which Cato was kind enough to let me post on my site. Here are a couple of key paragraphs:
In many ways, the Precautionary Principle seems quite sensible, even appealing. To justify regulation, a certainty of harm should not be required; a risk, even a low one, may well be enough. It makes sense to expend resources to prevent a small chance of complete disaster; consider the high costs, pecuniary and otherwise, that are spent to reduce the risk of terrorist attack. On reasonable assumptions, the costs are worth incurring even if the probability of harm -- in individual cases or even in the aggregate -- is relatively low.

The Precautionary Principle might well be seen as a plea for a kind of regulatory insurance. Certainly the principle might do some real-world good, spurring us to attend to neglected problems. Nonetheless, the principle cannot be fully defended in those ways, simply because risks are on all sides of social situations. Any effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.
Sunstein tells me that a longer version of this analysis (available in a working paper available on the SSRN site) will be part of a forthcoming book called The Laws of Fear.


NEW SEARCH ENGINE: My friend Haym Hirsh, who knows what he's talking about -- he's a computer science professor who specializes in this sort of thing -- writes:
BTW, have you tried the search engine Teoma? Pretty cool. It's the product of a friend, Apostolos Gerasoulis, and is now a part of AskJeeves. . . .

The main edge is their "Refine" and "Resources" links. For example, if the query is "volokh" it suggests the refinements "Eugene Volokh", "Alexander Volokh", and "Ucla Law". Very convenient if you're looking for one or the other Volokh, without realizing there are two. If the query is "machine learning", it gives a list of resources that are very good -- pages with lots of links to other sites on the topic.

Do you know how Google works --- assessing page importance by the interlinking of pages? Google does their analysis off-line, analyzing the large collection of web pages that they've indexed in one shot. Teoma uses much the same technology, but does it on-line, pulling out pages relevant to a query, and only then, for that smaller set of retrieved pages, does the link analysis in real time to determine how to prioritize them. It also uses the link analysis to figure out refinements and resource pages.

Teoma's index has been steadily growing. Google claims 3 billion pages but really indexes 2 billion (the extra 1 billion are pages that they know there are links to, but that they haven't downloaded). Teoma is up to 1/2 billion. As a result its retrieval results are not as good as Google's, but it wins if you get back a lot and want some simple way to get to a refined list of results, or if you simply want to know an "authority" page on a topic. As Teoma's index continues to grow, we should see the quality of the results continue to improve.

In the past my main search engines were Google and Inquirus. Teoma is now something I use when I can't find what I want on Google -- when there's too much stuff returned. The situation feels much like it did when Google first came out (I don't know if you were an "early adopter" like I was).

Just a heads up.

Tuesday, January 28, 2003


SIR, WE'D LIKE TO SEARCH YOUR VEHICLE FOR DENTURES: Congress has enacted some pretty odd criminal laws. Among my favorites: 18 U.S.C. 711, which prohibits using the "Smokey Bear" character without permission; 18 U.S.C. 707, which makes it a crime for non-members to use the 4-H club symbol; and 18 U.S.C. 1821, which prohibits interstate transportation of dentures made by a person not licensed to practice dentistry. I know we all sleep better at night with those laws on the books.


KTSA RADIO (SAN ANTONIO): I should be on KTSA radio in San Antonio in a few minutes, at 7:05 or so Central Time, talking about the constitutional issues around the State of the Union address (there aren't many), and about the constitutional requirements for being President. Don't know why they're so curious about this, but I'm happy to oblige.

UPDATE: OK, I guess they decided they had better things to talk about, though I wish they'd called me to say so. Ah, life in the news biz.


MORE ON THE DANISH PROFESSORS AND LOMBORG: My friend and fellow lawprof Jonathan Adler, who (unlike me) knows a lot about environmental matters, writes this about the open letter criticizing the commission that condemned Lomborg:
I think it is very significant -- and did so when I first heard about it last week. If the list of only 300 signatories includes 90% of all economics faculty in the country, that's saying something (both about the groundswell of opposition, but also about the size of Danish academia). We (Andy Morriss and I) will be sure to mention it in the Introduction to the paper-only symposium on Lomborg's book that we organized for the Case Western Law Review.


SEX VS. GENDER: Several readers pointed out that in some academic circles, sex and gender have acquired specialized meanings, with sex meaning the biological attributes of sex, and gender meaning the socially constructed ones. That's a point worth remembering for technical circles; but my experience is that this distinction has not dramatically influenced lay usage, and my suspicion is that it probably won't, at least for quite a while.


WHAT LAW ARE THE LANGUAGE POLICE ENFORCING? The Fifty Minute Hour disagrees with my approval of "momentarily" in the sense of "in a moment," and suggests that sometimes the two meanings of momentarily ("for a moment" and "in a moment") will be confused with each other. I'm skeptical about that, but at least this is a plausible argument -- not all evolution of the language is good, though I think that on balance such evolution tends to improve the language rather than worsen it.

     But what I just don't get is the assertion that the new meaning is somehow wrong, even once it's been accepted by dictionaries -- not just inelegant, not just confusing, but wrong. Here's a particular example from the later in the post:
If there's a good reason to use "momentarily" to mean "in a moment" or "hopefully" to mean "I hope" (it actually means "in a hopeful manner," so if you say "Hopefully, Sarah will visit soon," Sarah must have very high aspirations for her trip), that's fine.
What does "'hopefully' . . . actually means 'in a hopeful manner'" (as opposed to "I hope") mean? Merriam-Webster says "hopefully" means both, and while it notes the debate, it says "hopefully" in the sense of "it is hoped" is "fully standard." My New Shorter Oxford likewise notes both definitions, though it lists "it is hoped" as "considered erron[eous] by some."

     The American Heritage likewise gives both definition, likewise notes the debate, and likewise says that "It is not easy to explain why critics dislike this use of hopefully. The use is justified by analogy to similar uses of many other adverbs, as in Mercifully, the play was brief or Frankly, I have no use for your friend." The Webster's Dictionary of English Usage similarly discusses the debate, similarly says that "There never was anything really wrong with [this use of hopefully]; it was censured . . . because it was new, and it is not very new any more."

     So either the Language Police are proposing a new definition of "actually means," which would now mean "should, in my opinion, be limited to meaning, even though the dictionaries make clear that the actual definition is broader"; or these claims are simply wrong -- "hopefully" actually means both "in a hopeful manner" and (much more often, I suspect") "it is hoped," "momentarily" actually means both "for a moment" and "in a moment," "bear" actually means both "a large mammal" and "to carry." Either the Language Police are enforcing their own idea of what the rules should be, rather than the rules as they are defined by the only plausible candidate for rulemakers, or they're just mistaken about what the rules in fact are.


FEDERAL JUDGE HOLDS RLUIPA UNCONSTITUTIONALLY PREFERS RELIGION: Thanks to Marty Lederman, I also have a copy of the Madison v. Riter decision, which holds that the Religious Land Use and Institutionalized Persons Act (RLUIPA) -- or at least that portion that requires prison wardens to often give religious exemptions to prisoners who are burdened by nondiscriminatory prison rules -- unconstitutionally prefers religious observers over nonreligious people. (Presumably the same analysis would also invalidate the other half of RLUIPA, which requires zoning authorities to often give exemptions to religious institutions that are burdened by zoning rules that don't on their face discriminate against religion.) I think the court's decision isn't consistent with the existing Establishment Clause precedents, and I suspect that the 4th Circuit will reverse it; but it's an interesting, detailed, and thoughtful opinion, and much worth reading if you're interested in the law of government and religion. I haven't seen the case posted elsewhere, so I've put it on my site.


MORE ON STATUTES OF LIMITATIONS: Marty Lederman, who's an extraordinarily knowledgeable constitutional lawyer, writes the following:
Eugene: Although the courts of appeals have consistently held that a legislature may extend a criminal statute of limitations during the term of the statute itself, the general assumption has long been that a legislature may not extend a SOL retroactively, and thereby revive a claim that had already become stale. The canonical cite for this distinction is Learned Hand's discussion in Falter v. U.S., 23 F.2d 420, 425-26, in which he wrote: "Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it." Largely in reliance on Falter, some state courts have invalidated "revived" SOLs. See, e.g., Commonwealth v. Rocheleau, 533 N.E.2d 1333 (Mass. 1989); People v. Shedd, 702 P.2d 267 (Colo. 1985); State v. Cookman 920 P.2d 1086 (1996) (finding ex post facto violation under the state constitution, using federal ex post facto principles as persuasive authority). More recently, the Cal. Supreme Court went the other way, and permitted the legislature to revive old child abuse claims. People v. Frazer, 982 P.2d 180 (1999). Frazer predated the USSCt's landmark EPF decision in Carmell, and some have thought that Carmell undermines Frazer. The Court recently granted cert to review the question. Stogner v. California, No. 01-1757, to be argued March 31st. My prediction would be that the Court holds no EPF violation, but one can't be too sure in this area (see, e.g., the vote breakdown n Carmell).
I will happily defer to Marty on this point, and I much appreciate his correction -- I guess we'll know within several months what the Court has to say on this. The question whether retroactive revival of civil claims violates the Due Process Clause will likely still remain, though, even after Stogner is decided.


RSS/BLOGGER QUESTION: A reader pointed out that the Blogger RSS feed seems to generate not entirely well-structured XML code, see, e.g., here. Does anyone know what I can do about that, short of switching away from Blogger? (I know there are quite a few problems with Blogger, I'm too swamped to deal with trying to change to something else.) Thanks!

UPDATE: The problem seemed to be the existence of an em dash character -- thanks to Colin Fraizer for the response. That surprises me, though, because why wouldn't this be a permissible character in XML? True, it's outside the lower 128, but I thought that aversion to special characters like that was a thing of the long-gone past.


THIS IS THE BEST PART: You have a head start, if it's bitter cold and you are sick at heart.


DANISH PROFESSORS CRITICIZE THE COMMISSION THAT CONDEMNED LOMBORG: Prof. Martin Paldam, a Danish economist, passes along the following (via my friend and colleague Jack Hirshleifer) about an open letter by Danish academics that criticized the commission that condemned Lomborg:
Unfortunately the open letter was in Danish. It was published by the newspaper Politikken[.]

The [h]ome page of the committee colecting the signatures + the text in Danish is here:

The key text is in my translation (the language is somewhat formal and hard to translate):

We the undersigned protest against the ruling from the Ethics Committee of the Research Council, UVVU, regarding the complaints against Bjørn Lomborg, BL:

Irrespective of what we think about the opinions of BL the approach of the UVVU is unacceptable, given the seriousness of the issue at hand.

The UVVU bases its decision on the critique by the opponents of BL, and does not explain in each case why the critique is convincing.

In the ruling UVVU excludes important publicly available information that reduces the weight of the critique, in particular [BL]’s answers to the critique.

A majority of Danish economics professors signed. I think that 90% of all Danish economics faculty was agains[t] the Committee,
though, of course the division for/against Lomborg is much less extreme. Though a lot still think[] he is more right than his enemies. The ruling of the "Ethics Committee" has been translated into English:
I don't know any Danish, but I suspect that the list of subscribers is the one linked to under "Her er en liste . . . af underskrivere" on the page.


LAWSUIT AGAINST GOOGLE FOR DOWNGRADING PAGE RANKING: An interesting new lawsuit -- my tentative sense is that it's a pretty sure loser, but it still bears watching. Here's a Lawmeme summary of the issue, and here's Google's motion to dismiss, which seems to me (based on an admittedly cursory review) quite sound.

     One note: Some say that this case involves Google's "commercial speech," but I don't think that's right -- Google's decision about how to present its output seems to me to be fully protected speech, not the less protected category called "commercial speech." True, Google is a commercial operation, but so are newspapers and book publishers; that doesn't make their speech any less protected. The "commercial speech" category is generally limited to speech that proposes a commercial transaction between the speaker and the listener -- commercial advertising or something along those lines. Google's rankings are more like, say, a newspaper's restaurant reviews or bestseller lists (fully protected), not advertisements for the restaurants or books themselves (less protected, though still substantially protected).

     (Thanks to my friend Haym Hirsh for passing along this story.)


THE LANGUAGE POLICEMAN'S BALL: A reader passes along a complaint about the "misuse[]" of "momentarily,"
as in "we will be landing momentarily" or "the doors will be opening momentarily."

In the first case, I don't like it when the pilot bounces the plane. In the second, it does make it hard for the little old ladies to get through the door without being sliced in two by the doors.

Of course the correct phrase is "in a moment" not as in "just for a moment."
This would be a great argument -- if it were factually accurate. Actually, if you look up the word "momentarily" in the dictionary, you see that it has two definitions, "For a moment, fleetingly" (I quote my New Shorter Oxford), and "At any moment, very soon" (listed as North American, originating in the early 20th century, which means it's close to 100 years old). The Cambridge International Dictionary likewise lists both; so does the Merriam-Webster. So under what definition of "misuse" or lack of "correct[ness]" would the supposed incorrectly usage qualify here?

     English is a complicated, constantly developing language. It's not frozen in its state as of the death of Queen Victoria, nor should it be. One could argue that some developments are unfortunate, because they lead to confusion -- though I've never heard people use "momentarily" in a context where there was any serious risk of confusion. But one can't deny that the developments have taken place, or say that a meaning that's listed in the dictionaries is somehow "incorrect."


LAW REVIEWS: "The world of the American law review resembles Middle Earth for all its strange inhabitants, secret rituals, and foreboding folkore." (Thomas E. Baker, A Compendium of Clever and Amusing Law Review Writings, 51 Drake L. Rev. 105, 106 (2002).)


Look out Hollywood! Lawyers are on the prowl looking for victims of the infamous "casting couch." . . . Now, on a personal level my feeling is that if there really are sexual predators like this out there that they should be taken for all they've got. However, one part of this story really caught my eye.
In filing the suit, Boucher is taking advantage of a change in California law. The statute of limitations on certain molestation cases has been lifted, opening the doors for decades-old incidents to be brought to court.
What bothers me is this: Article I, Section 10 of the Constitution states:
No state shall . . . pass any . . . ex post facto law . . .
I'm not an expert on the law, so I really don't know how to answer this; isn't revoking the protection of statute of limitation protection after the statute period has expired a prohibited ex post facto law? . . .
It turns out that there's a long line of federal circuit court cases that say that extending a statute of limitations is not an Ex Post Facto Clause violation, because it doesn't alter the substantive elements of the offense itself. What's more, civil lawsuits aren't covered by the Ex Post Facto Clause at all (see Calder v. Bull (1798)). One might be able to argue that such retroactive lengthening or repeal of the statute of limitations violates the Due Process Clause, which does apply to civil litigation. Hughes Aircraft Co. v. United States, 520 U.S. 939, 950 (1997), suggests that this might be so; but the Court didn't squarely confront the issue, and as I read the lower court case that it cited, the holding was as a matter of statutory interpretation, not constitutional law. And certainly if retroactive extension of a statute of imitations in a criminal case is constitutional, it would be so in a civil case, too.

     And if this is indeed the rule -- as it seems to be, despite the language in Hughes -- then I think it's a good one. It's unfair to punish (or even make civilly actionable) conduct that was legal (or not actionable) at the time it was committed, because the defendant had no way of knowing that the conduct would be illegal. For similar reasons, making the punishment more severe is also unfair. But if conduct is illegal when it takes place, then I don't think there's anything unfair about changing the statute of limitations: The defendant surely couldn't have been relying on the statute of limitations when deciding whether to commit his illegal act, and even if he luckily evaded detection (or complaint) for the original statute of limitations, I don't see why it's unjust to deny him the benefits of this good fortune.

     Naturally, the extension of the statute of limitations may still be a bad idea; there are good reasons for statutes of limitations to exist -- the tendency of memories to fade over the years is one such. But that's a separate question from the Ex Post Facto Clause/Due Process Clause questions raised by retroactivity.

UPDATE: Marty Lederman provides an elaboration and a correction of some of the above.


THE FBI INVESTIGATING TERRORISM ON CAMPUS: Saturday's Washington Post has a story on the FBI working with university police departments -- alongside other police departments -- in antiterrorism work. It's an interesting article, but here's one item I noticed in particular:
At the University of Toledo, police chief John A. Dauer said that one full-time and one part-time officer are assigned to the FBI terrorism task force based in Cleveland. . . . A similar arrangement has prompted controversy at the University of Massachusetts at Amherst, where an FBI agent and a campus police detective showed up at the office of an Iraqi-born economics professor in November for an interview. The campus detective, Barry Flanders, was assigned to the local FBI task force and was working on federal terrorism investigations at least two days a week.

FBI officials and campus police said they were able to quickly discount the anonymous tip that led to the interview, and professor M.J. Alhabeeb told local media outlets that the meeting was brief and polite.

But the case prompted a wave of protests by students and faculty, who argued that the arrangement gave the FBI the ability to intrude on the privacy rights of foreign nationals. The local American Civil Liberties Union has filed a Freedom of Information Act request demanding details about the university's cooperation with the FBI.

"What we know about the FBI in the past is that it has engaged in a whole set of activities against people because they didn't like the views they expressed or the associations they had formed," said Dan Clawson, a sociology professor at the University of Massachusetts who helped arrange a faculty protest meeting on the topic. "It appears that we are likely to go back to that time. . . . Universities should take a principled stand saying we oppose these activities because they interfere with the free exchange of information and ideas." . . .
     Look, the FBI has indeed engaged in abuses in the past. So have all police departments, and for that matter most government agencies. But what is the FBI today supposed to do when they get a tip suggesting that a university professor may be linked to terrorism -- ignore it? Say "Sorry, we feel so guilty about our past misbehavior that we really can't deal with it"? They didn't arrest the professor, they didn't search his office (with or without a warrant); they talked to him. True, the tip proved to be unfounded, as many tips are. Surely, though, such tips need to be followed up, even when they involve university professors.

     Nor am I troubled by the fact that the FBI and the university police have a continuing relationship: Universities not only contain potential wrongdoers (just like any other place contains them), but also potential targets for wrongdoers -- medical labs, sensitive scientific research, and the like. (Some universities have nuclear reactors.) Federal and local law enforcement should be working together to prevent terrorism, and that includes the local law enforcement agencies that are in charge of university departments.

     Again, of course I realize there's a risk of abuse here, and even a history of abuse. But there's also a risk of terrorism. The question is how we minimize the aggregate risk. If someone has a specific suggestion for how we can do that, I'd love to hear it. But I doubt that the right solution is to keep the federal agency that's now charged with antiterrorism work away from a large set of potential terrorist targets, and from a large set of potential location where terrorists may operate. (Thanks to Phil Carter for passing along the story.)

Monday, January 27, 2003


TOTAL INFORMATION AWARENESS: Phil Carter, a former Army officer and now a student of mine, has two interesting posts on TIA -- one on TIA generally, and one on a possible TIA connection to public health tracking. Carter is cautiously supportive of TIA, and I'm not sure where I stand on this, so I'm not positive how much of his views are correct here. But the posts present a thoughtful and interesting perspective.


COWBOYS: Christopher Hitchens has a good piece in Slate about Bush and "cowboys." An excerpt:
In a way, [Bush's actions] can be described as "a drive to war." But only in a way. It would be as well described as a decided insistence that confrontation with Saddam Hussein is inevitable -- a proposition that is relatively hard to dispute from any standpoint. It's true that Bush was somewhat brusque with Chancellor Gerhard Schröder, but then Schröder is a man so sensitive that he recently sought an injunction against a London newspaper for printing speculation about his hair color and his notoriously volatile domestic life. What we are really seeing, in this and other tantrums, is not a Texan cowboy on the loose but the even less elevating spectacle of European elites having a cow.


A judge threw out a jury's verdict today in what had been considered a landmark case against the distributor of a gun used in the shooting death of middle school teacher Barry Grunow.

In November, Valor Corp. was found negligent for not supplying a lock with the tiny .25-caliber pistol. The gun itself was not defective, a jury said in a 6-0 decision.

Although the judgment for Grunow's widow, Pam Grunow, was $24 million, Valor was found liable for only $1.2 million because jurors ruled the gun distributor just 5 percent responsible for the teacher's death. . . .

Judge Jorge Labarga ruled today that because the jury had not found a defect the product liability case, there could be no negligence claim. "The allegations in the negligence claim were completely dependent upon a finding of a defect in the product," Labarga said in his ruling.
There's also one of those ridiculously unreliable online polls that supposedly registers people's views on the subject. Blecch.


RSS Anyone have any suggestions on how to better publicize the RSS feed option that we just introduced today? Are there any RSS aggregators that we should notify about this, and, if so, how? If you have some tips, please e-mail me at volokh at (If RSS means as little to you as it did to me about a week ago, then never mind.)


MATRICARDI INDICTMENT AND PRESS RELEASE AVAILABLE: Last Friday, I wrote about DOJ's prosecution of former Virginia GOP director Edmund Matricardi for secretly joining a Democratic party conference call and disclosing the fruits of what he heard (you can access my post here). DOJ has posted two documents that shed light on the government's view of the facts of this case: you can read the indictment here, and DOJ's press conference statement here. Thanks to reader Marty Lederman for the links.


CASS SUNSTEIN FISKS THE PRECAUTIONARY PRINCIPLE: Well, not quite, fisking not being quite Sunstein's style. Still, he powerfully criticizes this common style of argument in an article in Cato's Regulation (thanks to Cato for letting me put this on my Web site). Here's an abstract from a longer piece of his, which he tells me will be part of a forthcoming book called The Laws of Fear:
In many ways, the Precautionary Principle seems quite sensible, even appealing. To justify regulation of various risks, a certainty of harm should not be required; a risk, even a low one, may well be enough. It makes sense to expend resources to prevent a small chance of complete disaster. On reasonable assumptions, the costs are worth incurring even if the probability of harm -- in individual cases or even in the aggregate -- is relatively low. The Precautionary Principle might well be seen as a plea for a kind of regulatory insurance. Certainly the principle might do some real-world good, spurring us to attend to neglected problems. Nonetheless, the principle cannot be fully defended in those ways, simply because risks are on all sides of social situations. Any effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.


"THE DRIVING MOTIVATION . . . SHOULD BE MODERNIZING THE ARAB WORLD": So reasons Fouad Ajami in Foreign Affairs. I don't know whether he's right, but it seems much worth reading. Here are the first three paragraphs:
There should be no illusions about the sort of Arab landscape that America is destined to find if, or when, it embarks on a war against the Iraqi regime. There would be no "hearts and minds" to be won in the Arab world, no public diplomacy that would convince the overwhelming majority of Arabs that this war would be a just war. An American expedition in the wake of thwarted UN inspections would be seen by the vast majority of Arabs as an imperial reach into their world, a favor to Israel, or a way for the United States to secure control over Iraq's oil. No hearing would be given to the great foreign power.

America ought to be able to live with this distrust and discount a good deal of this anti-Americanism as the "road rage" of a thwarted Arab world -- the congenital condition of a culture yet to take full responsibility for its self-inflicted wounds. There is no need to pay excessive deference to the political pieties and givens of the region. Indeed, this is one of those settings where a reforming foreign power's simpler guidelines offer a better way than the region's age-old prohibitions and defects.

Above and beyond toppling the regime of Saddam Hussein and dismantling its deadly weapons, the driving motivation of a new American endeavor in Iraq and in neighboring Arab lands should be modernizing the Arab world. The great indulgence granted to the ways and phobias of Arabs has reaped a terrible harvest -- for the Arabs themselves, and for an America implicated in their affairs. It is cruel and unfair but true: the fight between Arab rulers and insurgents is for now an American concern.
Thanks to reader Kathy Fendel for passing this along.


STATUTORY INTERPRETATION AT THE COURT: Today's lone Supreme Court opinion features an interesting debate between Justice Scalia and Justice Breyer over textualist versus intentionalist approaches to statutory interpretation. The substantive issue was one of the hot-button questions of our day: the FCC's ability to revoke licenses held by debtors in bankruptcy. (Okay, so it's not a hot-button issue to me, but surely someone out there thinks this is a hot-button issue.) Here is the beginning of Justice Breyer's dissent:
   The statute before us says that the Government may not revoke a license it has granted to a person who has entered bankruptcy 'solely because [the bankruptcy debtor] ... has not paid a debt that is dischargeable in [bankruptcy].' 11 U. S. C. §525(a) (emphasis added). The question is whether the italicized words apply when a government creditor, having taken a security interest in a license sold on an installment plan, revokes the license not because the debtor has gone bankrupt, but simply because the debtor has failed to pay an installment as promised. The majority answers this question in the affirmative. It says that the italicized words mean
'nothing more or less than that the failure to pay a dischargeable debt must alone be the proximate cause of the cancellation--the act or event that triggers the agency's decision to cancel, whatever the agency's ultimate motive . . . may be.' Ante, at 8 (emphasis added).
Hence, if the debt is a dischargeable debt (as virtually all debts are), then once a debtor enters bankruptcy, the Government cannot revoke the license-- irrespective of the Government's motive. That, the majority writes, is what the statute says. Just read it. End of the matter.

   It is dangerous, however, in any actual case of interpretive difficulty to rely exclusively upon the literal meaning of a statute's words divorced from consideration of the statute's purpose. That is so for a linguistic reason. General terms as used on particular occasions often carry with them implied restrictions as to scope. 'Tell all customers that ...' does not refer to every customer of every business in the world. That is also so for a legal reason. Law as expressed in statutes seeks to regulate human activities in particular ways. Law is tied to life. And a failure to understand how a statutory rule is so tied can undermine the very human activity that the law seeks to benefit. 'No vehicles in the park' does not refer to baby strollers or even to tanks used as part of a war memorial. See Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958).
Wow, citing Fuller-- you know this is serious stuff. Justice Scalia wrote the majority opinion, and here is an excerpt from his response to Justice Breyer:
   The dissent finds it 'dangerous . . . to rely exclusively upon the literal meaning of a statute's words,' post, at 2 (opinion of BREYER, J.). Instead, it determines, in splendid isolation from that language, the purpose of the statute, which it takes to be 'to forbid discrimination against those who are, or were, in bankruptcy and, more generally, to prohibit governmental action that would undercut the 'fresh start' that is bankruptcy's promise,' post, at 4. It deduces these language-trumping 'purposes' from the most inconclusive of indications.

Justice Stevens concurred, agreeing with Justice Breyer in principle but with Justice Scalia in outcome. "[E]ven though I agree with JUSTICE BREYER's view that the literal text of a statute is not always a sufficient basis for determining the actual intent of Congress," Justice Stevens wrote, "in these cases I believe it does produce the correct answer."

UPDATE: As Marty Lederman notes over at SCOTUSblog, Justice Breyer's dissent was much less colorful than his questions at oral argument.


RSS READING ON THE MAC: Reader Joshua R. Dale writes:
For your Mac readers, there's a free program called NetNewsWire Lite that's a pretty good RSS subscription reader:


IS DOJ POISED TO PROSECUTE PEER-TO-PEER PIRATES? Declan McCullagh has an interesting column today (read it here) predicting that the Justice Department will soon start prosecuting users of peer-to-peer networks under the NET Act. The NET Act is a 1997 law amending the criminal copyright infringement laws so the government no longer needs to show intent to profit. Under the NET Act, the government just needs to show that a certain dollar amount of material was copied outside the bound of fair use -- at least $1,000 for a misdemeanor -- and that the infringement was willful. (As you may recall from this post a few weeks ago, willful means 'with full knowledge that the conduct is unlawful.').

     Declan believes that we're about to see the first NET Act prosecutions against peer-to-peer users. You see, in the six years that the NET Act has been law, the total number of users of peer-to-peer technologies who have been prosecuted is exactly zero. The total number of prosecutions period is something like five, as best I recall. The copyright owners don't like this, and want DOJ to start making NET Act prosecutions a priority.

     Why no prosecutions of users in six years? When I was at DOJ ('98 to '01), the NET Act was a lot like the weather: everyone talked about it, but no one really did anything about it. It was obvious there were lots of violators out there, but there were two major problems with bringing prosecutions. First, the willfulness requirement posed a significant hurdle. Proving someone downloaded lots of files is easy; proving beyond a reasonable doubt that the person knew it was illegal but did it anyway is a lot harder (as the Sklyarov case suggests).

&nbs nbsp;   Second, no matter how much the copyright owners want to lobby Main Justice in Washington D.C., the truth is that most decisions about what to prosecute are made by local Assistant U.S. Attorneys (AUSAs). Your average AUSA doesn't really care what the RIAA wants, and would rather get a drug dealer off the streets than bring a misdemeanor prosecution against a college student for downloading Eminem songs. Part of this is bang-for-the-buck: AUSAs usually want to bring felony cases with real bite, and NET Act prosecutions against users will end with a slap on the wrist and probation. Another part is socioeconomic, I think: to many prosecutors, drug dealers are "them," and music downloaders are "us." But whatever the explanation, it has made the NET Act an interesting law on the books that is almost dead in practice.

     Is this about to change? Maybe, but I doubt it. Stay tuned.


MADE ORDERS AND GROWN ORDERS Eugene's posting here about the "language police," and about language as a "grown order" as opposed to a "made order" rings some of my bells. Two thoughts on that.

     First, this debate between language prescriptivists and descriptivists has a long and distinguished history; the 18th century saw a furious debate between prescriptivists who not only wanted to halt the spread of new and corrupt usages, but who would enlist the force of the State to enforce those dictates, and those more comfortable with allowing nature, and language, to take their own course. I've written a bit about this, focusing (as I usually do) on Jefferson's views on the question. Jefferson, not surprisingly, was not of a prescriptive turn of mind on this question (or most questions). "I am no friend," he wrote, "to what is called Purism, but a zealous friend to the Neology which has introduced these two words" -- that is, the words "purism" and "neology" -- "without the authority of any dictionary. I consider [purism] as destroying the nerve and beauty of language, while the other improves both, and adds to its copiousness." [And Jefferson was a great neologist himself; the OED lists over 60 words that he apparently coined, including such beauties as belittle, countervailing, doll-baby, indecipherable, and vomit-grass]. John Adams -- always, it seems, on the other side of the question from Jefferson -- was more impressed with European efforts to "establish by public authority institutions for fixing and improving their proper languages," and actually introduced a bill into the Continental Congress to provide for a "public institution," modeled after the French Academy, for "refining, correcting, improving, and ascertaining the English language."

      And second, about the "order" part of the made versus grown order question: one of the truly remarkable facts about language, still largely unexplained by those who spend their time studying this phenomenon, is what is called Zipf's Law: the frequency of the 10th most common word in any language is 1/10th the frequency of the most common word; the frequency of the 100th most common word is 1/100th the frequency of the most common word; and so on. It's truly remarkable, incredibly order-ly, and it emerges without any planning whatsoever. And, just to make things more interesting, it also holds for many other growth phenomena, most notably the distribution of the sizes of cities . . .


THE GETTYSBURG ADDRESS, IN POWERPOINT: Pretty amusing, if you hadn't seen it yet. Thanks to reader Gregory Taylor for the pointer.


NINTH CIRCUIT REMOVES CITATION TO MICHAEL BELLESILES ARTICLES FROM ITS SECOND AMENDMENT OPINION: How Appealing reports on this. This naturally doesn't change the opinion's substance -- it relied on Bellesiles' articles (not, incidentally, the book that triggered the scandal, but his other articles) only in passing.


SALMA HAYEK VS. FRIEDRICH HAYEK: Here's the scoop. (Thanks to Quare for the pointer, though it turns out that the author is my friend Glen Whitman, who never told me about this. Maybe he thought I already knew who was the cooler of the two.)


THE LANGUAGE POLICE: A reader writes, apropos my gender/sex point:
Unfortunately, without the "Language Police" standing athwart language liberalization, every usage would slip into the dictionary. Especially troublesome is the tendency to erase distinctions. For example, the term acronym was once a special sort of abbreviation that formed a word (e.g. NATO, scuba, radar). Unfortunately, misuse by thoughtless writers is turning it into just another word for abbreviation. Unless you pronounce it "AF-full CHO", you cannot call "AFL-CIO" an acronym; or, you couldn't before the Language Liberals had their way.
It seems to me that this is mistaken, both as a theoretical matter and as a pragmatic one. First, what exactly is wrong with "every usage" -- or, to be precise, every common usage -- "slip[ping] into the dictionary"? If a dictionary is a means for recording the language as it is actually used, then every common usage should be in the dictionary. The objection must be that a dictionary should be a means for recording the language as it should be used, which is to say recording the language as some group of people think it should be used. Why exactly should we trust what some board of Language Conservatives, which is to say a small group of elite academics and linguists, think should be proper usage?

     Ah, people say, but the trouble is that the lay public -- the actual users of the language -- will screw things up. One objection is that they'll let various inelegant usages into the language, but that is a tough basis on which to make one's argument. So another objection is that they'll "erase distinctions," which I take it means deprive us of what were once clear and useful terms.

     On closer inspection, though, most (I don't mean to say all, but most) examples of these erased distinctions end up being rather unpersuasive. Take the example the reader gave. To my knowledge, "acronym" did originally mean an abbreviation that has become a word, such as "scuba" or "radar" -- in my New Shorter Oxford's words, "A word formed from the initial letters or parts of other words"; the Cambridge International Dictionary provides the somewhat broader definition "an abbreviation consisting of the first letters of each word in the name of something, pronounced as a word" (giving AIDS as an example, though it's written as a series of initials, rather than a full-fledged lower-case English word). But it has now also started to mean "an abbreviation composed of initial letters," which used to be called by the little-known term "initialism," though the New Shorter Oxford prefixed it with the qualifier "loosely." A quick New York Times search confirms that the term is actually used this way, and that in fact the supposedly correct "initialism" is extremely uncommon (with only 2 mentions since 1/1/2002, as opposed to 173 for acronym, many of which refer to the newer meaning and many of which refer to the older).

     And what exactly is wrong with this linguistic change? Usage has developed a useful common term -- "acronym" -- that covers "radar," "AIDS," and "AFL-CIO," and other terms that are formed from abbreviations of multiple words; no such common term existed before ("abbreviation" is a broader term, which also includes abbreviations of single words). It has also built on a shorter, more commonly known word ("acronym") rather than relying on a longer term that to my knowledge has never been broadly known ("initialism"). True, this shift in usage is doing away with a distinction; it is now harder to say "an abbreviation of multiple words that is pronounced as a single word." But I suspect that this distinction is dying because it isn't very useful (how often have you had to refer to this concept in your speech or writing?), or at least is less useful than the commonality that the new definition of "acronym" represents.

     This also bring us back to a general point: Language defined by changing usage is what some call a "grown order" -- a judgment formed by millions of people, based on their senses of what is convenient and comfortable for them. (Free market economic decisions are another classic example of something that's mostly a grown order.) Linguistic prescriptivism (dictionarymakers recording what they think should be the usage, not what is the usage), is a "made order" -- a judgment of a small group of people selected for the purpose of rendering their judgment. Made orders are sometimes useful, for instance in the setting of technical standards. But as to language, I think the grown order approach is far more likely to yield a language that is genuinely responsive to users' needs than the made order approach.

UPDATE: Glen Whitman suggests that I might have overstated the grown order vs. made order distinction here, though he mostly agrees with my more specific point here. I think the distinction still works here, at least at a general level, but Glen provides an interesting and somewhat differnet perspective.


RSS: Do you know what RSS is? Well, we didn't, and still barely do -- but a kind reader (who asked to remain anonymous, solely because of modesty!) told us how to set up BLOGGER to generate an "RSS feed." (Always remember those quotes, like Dr. Evil does with "laser.") If you want to use our "RSS feed," you can find it at; the "RSS/XML" link on the left-hand side of the screen will point you there. We find that we can read this feed using the SOAPClient reader, just to test it out; and presumably other users can use this "RSS feed" using "aggregators" and "other cool tools."

     But we leave it to you to figure all that out! We provide the .xml thingamajiggy; you use it as you like. Let us know, please, if this isn't working for you and you can tell us how to fix it. If it isn't working for you, and you can't tell us how to fix it, then please be assured that you're covered under our full money-back guarantee.


1. If we go into Iraq and in the process are attacked with chemical or biological weapons, will the French and other reluctant parties (perhaps also in this country) suddenly rally behind the cause of war? For then at last there will be proof positive that Iraq was lying, violating the security council resolutions, etc. Think of an attack as, among other things, the ultimate inspection. (If such weapons aren't used against us but are found in storage afterwards, will the French then admit we were right to attack? Should they?)

2. If we go into Iraq and aren't attacked with chemical or biological weapons, will that suggest we were wrong to use force? The premise of the decision to attack -- or at least one set of seemingly important premises -- is that Iraq has such weapons and has a worrisome willingness to use them. If in fact there is no attempt to use them against us, evidently at least one of those beliefs was incorrect (unless the reason they don't try to use chemical weapons is just that we too quickly disabled their ability to do so).


"WORDS HAVE GENDER, PEOPLE HAVE SEX": A reader decries in passing the use of the word "gender" to mean "sex":
I deliberately use "sex" rather than "gender", by the way, because "gender" is properly a grammatical attribute. But this may be nothing but tilting at windmills, given the colloquial trend toward abuse of the term.
I've heard this claim before, most memorably in the phrase that I quote at the start of this post.

     This, though, seems to be another grounds for false arrest by the Language Police. My Oxford English Dictionary indicates that "gender" had long been used to mean "sex," with attribution back to the late 1300s; then it lapsed to being "Now only jocular" (the OED's notation) by the turn of the 20th century; by the late 1900s, it was back in the dictionary as a normal word -- my Random House (2nd ed. 1987), for instance, lists "sex" as a normal definition. Once the term is in the dictionary, what basis does even a descriptivist have for saying that it's not "proper," or an "abuse"? If you say that it seems ugly to you, or sounds like jargon, that's fine -- that's an esthetic judgment, and I'm often happy to publicly make such judgments myself. But if the claim is that it's incorrect, what's the authority for that proposition.

Sunday, January 26, 2003


ET TU, REASON? Reason's Hit & Run complains about "a class-action [Gulf War] POW lawsuit that seeks $910 million from the Iraqi government" -- claiming, perhaps correctly, that the claims are factually unfounded -- but then goes on to say:
Although this is a civil suit, it's a good indicator of the sort of high-sounding and idealistic excuses the state will advance when it gets seriously down to the business of stealing everything in Iraq that isn't nailed down."
"[T]he state," I take it, refers to the U.S. government.

     Huh? What exactly is the evidence for the very serious accusation that the U.S. government is likely to try to "steal[] everything in Iraq that isn't nailed down"? Conventional wisdom is that the war and the reconstruction of Iraq will be a net cost to the government, not a net benefit (and this is an argument sometimes made by anti-war forces), and here I think the conventional wisdom is right. It seems to me to be much in the U.S. government's interest to make sure that Iraq gets back on its feet economically (much as it was in the U.S. government's interest for the same to happen as to Germany, Japan, Korea, Afghanistan, and other places), and that its new government will be friendly to us. Friendly governments that are installed on the ashes of a dictatorial regime, and that will probably be largely run by people who opposed the dictator, will rarely be enthusiastic about paying reparations for the dictatorship's actions.

     Now there's no doubt that there's an indirect economic dimension to a possible war with Iraq as well as a national security dimension, just as there was, for instance, with campaigns against piracy. For starters, we're worried that Saddam Hussein will be a menace to our trading partners in the area, and that if he's allowed to get weapons that will let him invade or threaten his neighbors with impunity (say, another Kuwait invasion, but this time by an Iraq that's able to threaten a nuclear attack on those who get in his way), our economy will suffer. More broadly, a friendly Iraqi regime may give us better terms on oil sales than a hostile one, though I'm not quite sure how much of a difference this would really make.

     If that were what the Hit & Run post said, I'd have little complaint -- though I think that we need to stop Hussein as a national security matter, even apart from these other reasons. But that wasn't what the post said. "There are problems with racism in America" is not the same as "Amerikkka." "Israel's discrimination against Arabs and Palestinians is immoral" is not the same as "The Israeli Army = the SS." Likewise, "part of the reason for a possible war against Iraq is economic" or even, much less credibly, "we're really trying to attack Iraq because we want cheaper oil" is not the same as "the [U.S.] government . . . [will] steal[] everything in Iraq that isn't nailed down."

     Look, I'm no great fan of government. Governments, including the U.S. government, do lots of bad things. They also sometimes do good things, and, more importantly, they sometimes do necessary things.

     Our government, like all governments, should be viewed with caution and skepticism. But not with a naked contempt that seems to take the view that the U.S. government is so pervasively evil that any allegations against it, however harsh and unsupported, are fair game.

     This sort of contempt has been a staple of the Far Left for quite a while, and has rightly helped to discredit it. I'm sorry to also see it among those with whom I would normally want to be allied.


PRETTYLOUSYBOWL XXXVII Contrary to Yogi's oft-quoted assertion, this one was over quite a bit before it was over. Another really bad Superbowl game . . . makes you wonder. Best moment: Dixie Chicks' version of the National Anthem. Absolutely first rate.


ENTERTAINMENT: So a couple of days ago, someone mentioned to me something about a proposed reality TV show based on the cloning cult. (Don't ask me why that would be entertaining; I don't think it would.) And then it hit me -- what would that sort of show be? Why, raelity television!

     But no-one laughed. They must not have heard (it was loud in the room). Or they heard but didn't understand. Or they heard, understood, but didn't think it was funny. But how could that be? It was a funny joke, dammit, very funny. No doubt about it. Very funny.

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