Saturday, August 16, 2003

 
[Eugene Volokh, 8/16/2003 09:36:28 PM]
Fictional characters named after famous people in books: Thanks again to all the readers who passed along examples of characters named after famous people in movies (e.g., Nute Gunray in one of the Star Wars movies, or Michael Bolton in Office Space) and cartoons (Yogi Bear -- how could I have missed that)?

     I'd now like to flesh out the list with examples from books. One category would be classic literature -- if there are examples of characters that have names or nicknames that are obviously based on the name of a prominent real person, living or then recently dead, that would be great. Swift, I'm told, had some, but I'd love to see other examples, especially from relatively well-known works of literature. I realize that this is a subset of my previous question, but I thought that by narrowing the scope, I might jog some readers' minds.

     Also, a related query: Can anyone point to some such examples in science fiction books, where characters have names or nicknames that are obviously based on the name of some 20th-century figure?

     Note that I'm still not looking for fictional works where a real person appears as a character (as in, for instance, Forrest Gump).

 
[Eugene Volokh, 8/16/2003 05:11:11 PM]
Still more on the federal lawsuits related to the California recall, which might (no-one knows yet) lead to the election being delayed: Read Rick Hasen's Electionlaw blog.

 
[Tyler Cowen, 8/16/2003 04:22:18 PM]
Questions I cannot answer: "The last blackout of similar extent was 38 years ago. This blackout looks like it might cost about $2 billion and three or four deaths. Blackouts are stochastic - one could happen today, it's just very unlikely - like, once every 38 years.

How much extra should we spend and how much lower should we try to make the probability of a blackout? And why is your answer different than it was Wednesday?"

From Rich Christie, a reader with a background in engineering.

 
[Tyler Cowen, 8/16/2003 10:14:29 AM]
Our electricity crisis Here is a good article about some of the basics of what happened, more analytical than you will get from the news. It has some economics, but not enough for my tastes.

Reason magazine has an excellent site of various sources arguing for the deregulation of electricity, and illustrating some of the basic problems with our current system.

Duncan Watts has written technical papers about how cascades can bring an electricity system down.

I think Lynne Kiesling is the goddess of electricity analysis, I expect her blog will offer more, once the TV reporters stop bothering her (which may not be right away).

Robert Kuttner, writing in today�s New York Times, blames deregulation for the troubles. His bottom line: �Electricity can�t be stored in large quantities, and the system needs a lot of spare generating and transmission capacity for periods of peak demand�The power system also requires a great deal of planning and coordination, and it needs incentives for somebody to maintain and upgrade transmission lines�the prices the local utility companies could charge consumers remained partly regulated�under deregulation the local utilities no longer have an economic incentive to invest in keeping up transmission lines��

Note that even Kuttner admits that regulated retail prices are part of the problem, though he also argues that retail price deregulation would lead to gouging, a�la Enron and California.

What is the bottom line? We have a real mess here. No one has an incentive to invest in system improvements. Electricity �deregulation� has brought us decentralization without clear property rights and responsibilities. If you want to invest in a system improvement, you are not even sure which regulators to approach (it is mind-boggling how many agencies and layers of government have a hand in regulating electricity networks), never mind actually getting the permissions. And try getting the regulatory permissions to contract with all the other industry participants who would benefit from the improvements. So no one has invested much in system improvements, thus the core problem.

On top of all that, politicians promised voters that electricity deregulation would lead to lower prices, not higher prices. So no politician wants to let market players raise retail prices, which again means no funding or incentives for improvements.

Talk of further deregulation is all well and fine, but short of abolishing federalism, I don�t see how to get enough deregulation to make things work smoothly. We simply have too many regulators for clear lines of accountability and approval. And in the meantime there is little prospect of deregulating retail prices. The Gray Davis recall saw to that. Furthermore the rest of the system is still so regulated on the capacity side that complete retail price deregulation would, at this point, probably not work very well and would be a public relations disaster.

Kuttner argues that the vertically integrated, regulated monopolist (�Con Ed�) model is better. I would like to see an empirical comparison of blackout rates (does anyone know of one?), but of course we had serious blackouts before deregulation. Besides, it is probably too late to go back to consolidation, and this model was dismal on the innovation front.

So I foresee more problems and no easy solutions.

I see two silver linings in the cloud. First, this may induce the American people to support greater expenditures on Iraqi reconstruction. It might also show the Iraqis that we are in some ways simply incompetent, and not strictly malevolent. Second, for the rest of your life you can tell your Canadian friends that only Ottawa seems to have had significant looting.

 
[David Bernstein, 8/16/2003 09:14:26 AM]
Man loses wife to negligent driver, gets sued for trauma by driver: Reader Philip Gallagher passes along this proof that crazy verdicts aren't limited to the U.S.:

A former policeman who sued a widower because he experienced the trauma of seeing the man's wife die in a crash with his speeding patrol car has won �87,275 damages.

George Gilfillan was awarded the money even though a judge ruled that he was driving "much too fast" and said that he was 50 per cent to blame.

 
[Tyler Cowen, 8/16/2003 07:00:56 AM]
More on Arnie: The August 11-17 Variety claims that if Arnie becomes governor, the following projects in the works will be cancelled: a possible 4th Terminator, A Westworld remake, a Conan sequel, and a comedy called "Big Sir." He is also slated for a cameo in Jackie Chan's "Around the World in Eighty Days," to be released next summer. Californians, do you still want to vote for him?

 
[Tyler Cowen, 8/16/2003 06:55:22 AM]
Trouble ahead: The science of weaponry is advancing. This seems years away, but Robin Hanson, in an email to me, described its significance in the following terms: "Ordinary size bullets that cost about a dollar and do as much damage on impact as a car/truck bomb. Or any other linear scaling of this same effect."

Friday, August 15, 2003

 
[Eugene Volokh, 8/15/2003 05:54:43 PM]
The valedictorian flunks: What does it say about a high school when the valedictorian can't graduate because she can't pass the basic skills test? A sad, sad story, from Number 2 Pencil. Thanks to Joanne Jacobs for the pointer, and for the summary: "They were giving her As for being a good kid. But they weren't teaching her."

 
[Eugene Volokh, 8/15/2003 05:17:19 PM]
"High sheriff": A cute little archaicism, borrowed from Jolly Old England -- counties in some states (a WESTLAW search suggests that this usage is most common in Connecticut and Rhode Island, but I've seen references in cases coming from other states as well, as far west as Texas) still have the office of "High Sheriff." See, e.g., this page from a Massachusetts county. Makes me think of Robin Hood and Maid Marian.

     Better yet, check out R.I. Stat. Ann. 31-3-63:

The administrator of the division of motor vehicles is authorized and directed to issue a special registration plate for the private passenger motor vehicle of the former high sheriff of Kent County, Anthony A. Giorgio. This plate is to bear the identification "High Sheriff Emeritus" along with an appropriate number and the plate shall be furnished without additional registration charge for such period of time as Anthony A. Giorgio so desires.

Nice!

 
[Eugene Volokh, 8/15/2003 04:24:57 PM]
Daniel Pipes: I don't know enough about Daniel Pipes to have an informed opinion about whether he should be appointed to the board of directors of the Institute for Peace. (The necessary knowledge base, by the way, would include his qualities, his temperament, and the likely reaction of various groups to him, and how this reaction will advance or interfere with the Administration's policy goals.) My knee-jerk reaction, based on the views of people whom I generally trust, is to support him, but that really is just an educated guess, not real knowledge.

     This Charles Krauthammer column, though, which strongly supports Pipes, makes me think that this could become a very interesting political battle, one that echoes -- though largely by proxy -- various other important arguments about fighting Islamo-fascist terror: arguments about racial and religious profiling, about how the Administration should talk about Islam, about the proper level of surveillance of various Islamic religious organizations, and so on. I will likely remain mostly rationally ignorant of the matter. But if Pipes is indeed put before the Senate (and not just appointed as a recess appointment), I think this could produce a fascinating, possibly brutal, and possibly valuable and possibly demagogic debate. My tentative suspicion is that the Bush Administration would benefit politically from this debate, though I express no judgment on whether the debate is likely to advance the Administration's policies.

 
[Randy Barnett, 8/15/2003 03:43:41 PM]
Link to Laurence Tribe's Harvard Law Review Article Now Works: The link to eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, by Laurence Tribe, graciously supplied by a reader yesterday, was malfunctioning at SSRN. Thanks to Eugene's initiative by contacting SSRN, it has now been fixed and you can access the article that provoked the responses by Nelson Lund and Peter Berkowitz.

 
[David Bernstein, 8/15/2003 03:21:27 PM]
Catholics and Salvation: I've been told, and have also read, that I was incorrect when I implied that under Catholic doctrine only Christians and Jews can be "saved." If so, apologies for the error.

 
[Eugene Volokh, 8/15/2003 02:09:06 PM]
Interesting recall-related litigation: The Limits of Its Logic: Ninth Circuit Blog reports the following about one recall-related lawsuit (sorry, too swamped to give more details about this issue):

Judge Fogel, District Judge in San Jose, held a hearing on a TRO this morning in a case challenging the recall election under the Voting Rights Act. The State of California and the County of Monterey conceded that election changes related to the recall election required federal preclearance under the Voting Rights Act and that such preclearance had not been obtained.

The defendants also did not dispute that the election cannot proceed unless preclearance is obtained. Judge Fogel seemed to be searching for a preclearance deadline after which it would simply be too late to wait any longer for the Justice Department to clear the election. For the recall portion at least, he seemed to key on the date that the first vote could be cast -- absentee, overseas or otherwise. The parties did not speculate on when a preclearance decision could be expected from the Justice Department

Judge Fogel asked the parties if they were available for a hearing on August 29 and September 5. It looks like another hearing will be set for one of those days, and that if preclearance has not occurred by the date of that hearing, the election may well be postponed.

Rick Hasen says that "From other sources, it sounds like preclearance could come quite quickly, thereby mooting these suits."

UPDATE: Rick Hasen just added this update:

If the Department of Justice grants preclearance, then I believe the next step for anyone who wanted to challenge the decision would be a new suit brought before a special three-judge court challenging the decision to grant preclearance on grounds that the recall rules have a discriminatory purpose or effect. But I may be wrong on the procedure. If others with more knowledge of the procedure e-mail me, I'll put out a further update.

 
[Eugene Volokh, 8/15/2003 11:21:11 AM]
The Secret Service excluding speakers from a large area around the President's appearances: I've been meaning to blog about this issue (and other related ones that have arisen recently), but hadn't gotten around to it -- this story provides a good opportunity, though:

Three protesters arrested at a 2002 rally attended by President Bush sued the U.S. Secret Service and others Wednesday, arguing that their First Amendment rights were violated when they were arrested for refusing to picket inside specified zones.

Joe Redner, 63, Adam Elend, 26, and Jeff Marks, 31, filed suit in U.S. District Court in Tampa. . . .

The three men said they attended the rally at the University of South Florida specifically to protest the zones. Redner said his sign read "Don't let these crooks fool you" on one side and a quote from a Supreme Court First Amendment decision on the other. The sign likened protest zones to "a safe haven for crackpots." Elend [one protester], who produces documentaries with Marks [another protester], said USF arena officials ordered them to a designated zone about a half-mile away.

"There were a couple hundred people there (at the protest zone), but you couldn't see it from where the event was happening," Elend said. Deputies arrested the men when they refused to move. . . .

Elend said the Secret Service and deputies discriminated at the Tampa rally, mostly allowing those with pro-Bush and neutral signs to stay nearby, but sending anti-Bush protesters to the zone.

"They applied it totally based on the signs," he said.

Redner, a strip club owner, said he understood that the Secret Service must do its job, "But if someone wanted to kill the president, I think I'd go with a sign saying 'I love the president.'" . . .

"We have a free speech zone already," [Rep. Barney] Frank said. "It's called the United States of America."

If pro-Bush speakers were indeed treated differently from anti-Bush ones, that would certainly be unconstitutional, whether this was done on the streets or on USF property. But even if all protesters were equally excluded, that too would probably be a First Amendment violation. While the government may sometimes impose bubble zones for various reasons, including security, requiring that protesters be 1/2 mile away seems to me quite overbroad for that purpose. Other requirements, such as a smaller bubble zone, or a limit on the number of people who can be present at the rally, might well be permissible. But a total exclusion from such a wide zone is unconstitutional. For a related, though obviously not identical, case, see United States v. Grace (1983), which struck down an ordinance that prohibited protests on the sidewalks outside the U.S. Supreme Court.

     Thanks to reader Chris Wolfe, who says he saw this mentioned on Marstonalia.

 
[Eugene Volokh, 8/15/2003 11:10:58 AM]
Correction to the post about the comic book obscenity case: See here. My apologies for the error.

 
[Eugene Volokh, 8/15/2003 10:42:18 AM]
"Terrific account of New Yorkers dealing with the blackouts, from Amy Langfield, who also has a batch of handy blackout-related links." So says Matt Welch at Hit & Run, and he's right.

 
[Eugene Volokh, 8/15/2003 10:28:54 AM]
More commentary on the Harvey Milk school, from a couple of weeks ago: One item by my friend and economics professor Glen Whitman, and another by Julian Sanchez at Hit & Run. Good points on the policy question (they don't focus on the legal issue, which wasn't in the news at the time); my favorite item, though, is the last line of Glen's post:

On the upside, I can�t wait to hear what the school�s mascot is.

 
[Eugene Volokh, 8/15/2003 10:19:05 AM]
How about permission to write about them? Or to think about them? Will they be asking for that next? Here's an item from the Pennridge School District (Pennsylvania) Web site:

Links to Pennridge School District Web Pages on External Sites

The Pennridge School District gives unlimited permission for governmental, educational, and publicly funded organizational web sites to incorporate links to the Pennridge School District web site or to web sites created under the auspices of the school district. Examples of acceptable links include the web sites of agencies such as the Pennsylvania Department of Education, the Bucks County Intermediate Unit, other school districts, the public library system, museums, and municipal governments or their agencies.

Non-profit organizations and for-profit commercial enterprises may apply for special permission to establish a link to the Pennridge School District. This request must be submitted in written form and must be signed by an officer of the organization or agency. The request should be sent to the Superintendent of Schools, District Education Center, 1506 North Fifth Street, Perkasie, PA 18944. The request should specify the purpose for link, the general content of the web page and/or web site where the link would appear, and the specific Pennridge web page address requested.

All special requests for external linkages to Pennridge School District web sites will be considered on a case-by-case basis. Criteria for acceptance will include, but not be limited to: 1) the informational and/or educational value to the Pennridge school community, 2) the existence of previous or ongoing education-related partnerships or joint projects, 3) the non-commercial presentation of the external linking web page, 4) the general suitability of the external site to the educational purposes of the school district, and 5) conformance with district standards of accuracy and propriety.

No return links to the external web site will be permitted. Permission to any site is contingent upon its continuing observance of district standards. The Pennridge School District retains the right to rescind its permission for external links, either for cause or as a result of a change in policy and/or procedures.

Here's an e-mail I'm sending to the Board of Education:

Dear Madam or Sir: So sorry to trouble you about this, but unfortunately your e-mail addresses were the only ones I could find on the Pennridge School District Web site; please feel free to pass this along to whoever is responsible for this.

I just wanted to alert you that I've just added a link to the Pennridge School District Web site to my Web site, http://volokh.com, see in particular http://volokh.com/2003_08_10_volokh_archive.html#106096794561927589. This likely violates your link policy, which I quote in relevant part below. Though there's some uncertainty about this, I suspect that my site is *not* a governmental, educational, or publicly funded organizational web site; it is probably more properly called a "non-profit organization," though it's a very loosely organized organization.

Nonetheless, I have not asked for special permission to establish a link to your site, nor do I plan on doing so. As a general matter, no-one needs "special permission" to link to anybody's Web site, unless they are linking in a way that violates trademark law or (perhaps) copyright law, for instance by falsely representing that one site is sponsored by another. (I say this with some confidence, because I specialize in, among other things, free speech law and copyright law.) One of the great values of the Internet is that people may link to other sites without any cumbersome preclearance process. But whether one agrees with this or not, there's no legal obligation to get permission to link. Nor do I think that there is any moral obligation, especially when the Web site is publicly available, and put up by a government agency. It seems to me that people are entitled to see what their government agencies are putting up on the Web, and links facilitate such viewing.

I think it might be good for the District to change its Web site, so as not to appear to claim legal rights that the District does not in fact have. But in any event, I thought I would let you know of my noncompliance with this policy.

Sincerely Yours,

Eugene Volokh
http://volokh.com

A bit snitty, I suppose, but I guess finding this policy (mentioned here) put me in a slightly snitty mood. And I do think that people -- and especially government agencies -- should be called to task when they demand that others get permission to do what may quite properly be done without such permission.

 
[Eugene Volokh, 8/15/2003 07:51:43 AM]
Castillo v. State comic book obscenity case: Several people have e-mailed me about Castillo v. State, a case in which a comic book store clerk was convicted of distributing obscenity -- a comic book called Demon Beast Invasion: The Fallen No. 2. Apparently, at trial the prosecutor argued to the jury that even though this particular comic book was sold in the adults-only portion of the store, it should be judged by its effect on children, because (I quote here from the Dallas Observer, Aug. 14),

Use your common sense. Comic books, traditionally what we think of, are for kids. This is a store directly across from an elementary school, and it is put in a medium, in a forum, to directly appeal to kids. That is why we're here. We're here to get this off the shelf.

It's hard for me to tell, without more details, whether it was legal error to allow the prosecutor to make this argument. If the prosecutor was saying that the jury should dispense with the normal obscenity rules, rules that presume an adult audience, because of the nature of comic books (as press accounts suggest), then that's impermissible: The work was being sold to adults, and was in an adults-only section, and the Court has clearly held that adults cannot be denied works simply because they might be harmful if read by children. (Of course, adult works will often end up in the hands of children, even if the seller is careful to sell only to adults, but under the Court's obscenity law, that's not reason enough to deny the works to adults.) On the other hand, if the prosecutor was merely explaining why obscene materials deserve punishment, and the jury was instructed to apply the standard obscenity rules and never told to apply a lesser standard for comic books, then this argument would, I think, be permissible. (Note also that Castillo's attorney didn't object to this material in a manner required by Texas law to preserve the issue for appeal, as Beldar points out.)

     IMPORTANT UPDATE: In my original post, I asserted that "the Court of Appeals of Texas made an important error here: It failed to conduct an independent review of the work, to decide for itself whether the speech had serious value, appealed to the prurient interest, and was patently offensive." As readers Michael Mayans and William J. Dyer pointed out, I was just plain wrong. I had read the whole case earlier, but I failed to reread it closely enough when preparing writing this post, so I focused too much on the court's statements that "the evidence was factually sufficient to establish" the elements of the obscenity test, and that the experts' evidence "would not prevent the jury from deciding" that the work was obscene, and just glossed over the fifth point of error, where the court does engage in independent review. A boneheaded error on my part, for which I apologize; and I appreciate the readers' prompt response, which allowed me to quickly alert other readers to my error.

     This having been done, I'm not sure that the court's independent review was quite correctly done. Though the court acknolwedged that it had to independently "consider whether" (among other things) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value," its discussion of the value seemed to focus on particular offensive items. The Court said that "These drawings and comments . . . neither advocate nor communicate any ideas or opinions concerning serious literary, artistic, political, or scientific values" (emphasis added), with the "these" seemingly referring to particular drawings and comments, not the entire work, though I can't be sure until I get a copy of the comic book. Its conclusion was "We conclude the average person, applying contemporary community standards in this State, would find 'Demon Beast Invasion, The Fallen - Volume 2,' taken as a whole, would only appeal to those who have a prurient interest in sex and therefore is obscene," with no mention of the need to consider the value of the work taken as a whole (and not just particular drawings and comments).

     Also, the focus on "ideas or opinions concerning serious literary, artistic, political, or scientific values" seems not to fully capture the "serious literary, artistic, political, or scientific value" prong -- a work can have literary or artistic value even if it doesn't have any "ideas or opinions concerning serious literary [or] artistic . . . values." The First Amendment protects works that have literary or artistic beauty or other value, even if they contain no ideas or opinions; it protects literature and art, not just literary or artistic criticism. Nonetheless, I realize that all this may just be an imprecise formulation in the written opinion -- the court did acknowledge that it had to independently evaluate whether the work, taken as a whole, has serious value, and it may well have applied the test correctly even if it didn't describe it as clearly as it should have.

     Finally, I should stress again that I generally oppose obscenity laws, largely because I think the definition of obscenity is hopelessly vague and subjective; and from what I've heard of the comic book, it shouldn't have been found obscene even under this definition. (The law library here is trying to get a copy for me right now, though that's proving hard to do, and not, as best I can tell, because of any fear of prosecution -- apparently it's just not being marketed as a separate item, and to really evaluate the case I need to see it as a separate item and not within a book that collects material from several issues.) But if the court did indeed independently review the evidence, and find the work obscene based on its own judgment, then this means that in the court's view the work is obscene even for adults, regardless of the prosecutor's comments about comics and children -- so the flaw, if there is one (and I think there is) is with obscenity law generally, or the court of appeals' application of it, and not with some new standard being created for comic books.

Thursday, August 14, 2003

 
[David Bernstein, 8/14/2003 05:29:57 PM]
Pipes and Hitchens: Christopher Hitchens takes part in a CAIR-dominated smear campaign against Middle East scholar and activist Daniel Pipe's nomination to the United States Institute of Peace (following criticism by Democrats influenced by CAIR's campaign against Pipes, President Bush has decided to install Pipes via recess appointment). Hitchens, in turn, is roundly Fisked in Jewsweek.

What I found amusing (not to mention ironic) about Hitchens's piece is that he concludes by criticizing Pipes for allegedy pursuing "petty vendettas." This from a man who quite recently devoted over a thousand words to the thesis that the just-deceased and much-beloved Bob Hope was "paralyzingly, painfully, hopelessly unfunny .... Hope was a fool, and nearly a clown, but he was never even remotely a comedian."

 
[Randy Barnett, 8/14/2003 04:45:33 PM]
Another Academic Defense of Bush v. Gore: A reader brings to my attention alink to an html version of Peter Berkowitz and Benjamin Wittes's reply to Laurence Tribe's article on Bush v. Gore, entitled, "The Lawfulness of the Election Decision: A Reply to Professor Tribe" that is forthcoming in the Villanova Law Review. I read an earlier draft some time ago and found it quite interesting. This is from the introduction:

[I]f Bush v. Gore was wrongly decided, it must not stand. Its specific result--George W. Bush's presidency--cannot be reversed. However, if the decision rests on a mistaken view of the law, then law professors should criticize it sharply and unsparingly to make sure that its legal errors do not become accepted doctrine. If it was indefensibly wrong, moreover, law professors should expose the sham, and the decision should stain the Court's legacy. And if, as some allege, its indefensible wrongness was the product of brute partisan manipulation, not honest differences over fact and law, it should burden the Bush presidency itself. For if Bush has an opportunity to name Justices to the very Court whose dramatic intervention in the 2000 election controversy resulted in his victory, and if the Court's ruling reflected unlawful and undemocratic maneuvering by conservative Justices keen to ensure that he would have the chance to put like-minded zealots on the bench, then the Justices' corrupt conduct should loom large over the Senate's confirmation process.

In fact, the Court's academic critics--who are numerous, influential, and vehement--do believe that Bush v. Gore is indefensibly wrong and corruptly partisan. Some of the biggest guns in the business--New York University's Ronald Dworkin, Yale's Bruce Ackerman, Harvard's Alan Dershowitz--weighed in early and denounced the decision unequivocally. Along with a substantial portion of their colleagues from law schools around the country, they have insisted in a continuing flow of newspaper op-eds, opinion magazine essays, law journal articles, academic conferences, and university press books that the per curiam opinion joined by the five more conservative justices on the U.S. Supreme Court was lawless and undemocratic.

Particularly given the seriousness of the accusation, the inadequacy of their collective critique is breathtaking; it includes such basic failures as an inability or unwillingness to state the Court's holding correctly, not to mention numerous errors of fact and law. The magnitude of the critics' failure, in turn, raises another possibility: That it is the professors, not the Justices, who are wrong, and that the Court's decision, while imperfect, was a fairly creditable job under exceptionally difficult circumstances. If this is the case, it is the professors, and not the Court, who should be criticized sharply. If the professors are indefensibly wrong, moreover, it is their legacy, and not the Court's, that should suffer the consequences. And if the professors' indefensible wrongness is owing to partisan disregard for evidence and the cannons of fair argument, this should cause us to think long and hard about the public role of our legal academics.

Recognizing many deficiencies of the conventional critique of Bush v. Gore, Laurence Tribe--the Tyler Professor of Constitutional Law at Harvard Law School, an eminent appellate advocate, and among the nation's foremost scholars of constitutional law--stepped forward in the pages of the November 2001 Harvard Law Review to correct and refine the critique and lend it scholarly gravitas. In the preciously entitled "eroG .v hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors," Tribe provides one of the densest and most legally sophisticated attempts to discredit the court's opinion. If anybody could demonstrate, once and for all, the indefensibleness of Bush v. Gore, it is reasonable to suppose that it would be Tribe. Though an interested party-he notes that during the election 2000 controversy he was Vice President Gore's "counsel of record in all of the U.S. Supreme Court proceedings"--Tribe is the author of a treatise on constitutional law that is widely considered authoritative, and few surpass his mastery of the subject. Yet Tribe's 135 pages and 535 footnotes in the Harvard Law Review weave a bigger and better disguise for Bush v. Gore and contribute mightily to locking the doors and bolting the gates of the house of mirrors in which legal scholars have assiduously sought to imprison it.

Given his stellar credentials and his undoubted authority, Tribe's failure to demonstrate the indefensibleness of Bush v. Gore is unusually instructive. Indeed, by demonstrating the unreasonableness of Tribe's critique of Bush v. Gore, we aim to bring into focus the lawfulness of the Court's decision.

 
[Eugene Volokh, 8/14/2003 04:37:08 PM]
Litigation: Dahlia Lithwick has a good Slate piece on the fat food lawsuits against McDonald's et al., but in the process says this:

For another, there was compelling evidence that the tobacco companies knowingly torqued up the addictive content in their product and systematically lied about the dangers, whereas there is little evidence that Big Food did the same. (Of course, proponents of the fat suits contend that we won't know until the discovery phase of these trials what fast food companies really knew about their product or did to make it more dangerous.)

The systematically lied point is an important distinction, that should be legally relevant -- but the "knowingly torqued up" point is, it seems to me, a similarity between tobacco and other products, not a distinction (and ought to, for pretty much this reason, be ignored).

     In a closely related industry, for instance, there's a term for "knowingly torqued up the addictive content" -- it's called distillation. All hard liquor has gone through an artificial process to increase its alcohol content. This should be perfectly legal, so long as one doesn't lie about it; and I think courts will so conclude. But that just shows that torquing up the nicotine should itself be perfectly legal, too.

     What about food? Well, anyone who has eaten 70% butterfat Brie knows that it's creamier and more appealing precisely because it's more fatty. Much food production involves making foods more tasty by adding fat or sugar. True, that's not quite the same as making them more addictive (though some argue that some food ingredients are addictive, and for all I know that might be so). But I don't think the addictiveness distinction is that relevant here. The food producers are adding stuff that makes their products mostly worse for you (not inherently, since they may be better for you if you're low on calories, but few people are these days), because that stuff also make their products more appealing to you. Not much different from jacking up the nicotine content or alcohol content of tobacco or booze. But it should be perfectly legal, so long as you don't lie about it or its effects.

     So while I generally disapprove of the tobacco lawsuits, I think that even if the legal system accepts their viability, it ought to reject the Big Food / Big Booze lawsuits. What's more, I have enough confidence in it to conclude that it will reject them (as it's been mostly rejecting the gun lawsuits). And if it doesn't, then I think that at least on this issue, the democratic process will correct it. Or at least so I hope.

     Finally, one more item from the Slate item:

Even frivolous lawsuits deserve their day in court. That's why we have judges: to throw them out.

I don't get this. Frivolous lawsuits let plaintiffs inflict huge litigation costs on innocent defendants. Their existence increases legal risk, until they're definitively thrown out, and tends to, on the margin, discourage investment in the industry. This problem is exacerbated by the fact that even if nearly all such lawsuits are rejected, one or two lawsuits (perhaps before unusually plaintiff-friendly judges and juries) may yield massive punitive damages awards. A few juries may thus end up essentially making food policy for the whole nation.

     No one "deserve[s]" the right to force people into ligitation on an unsound legal theory. If the theory is indeed unsound, then it's perfectly proper for the legislature to prevent the cost and risk of the litigation in the first place, rather than waiting until tens of millions of dollars are spent in various lawsuits.

 
[Eugene Volokh, 8/14/2003 03:52:47 PM]
Blogs as fact-checkers: The FoxNews error about Justice Moore's remarks below, and its debunking, offers what I think this is a good example of how blogs can be quite efficient at fact-checking:

1. Blog reader alerts blogger to possible problem.



2. Blogger posts about it, with some tentative speculation.



3. Another blog reader checks the facts (I hadn't known that there was an audio of Justice Moore's remarks available, but the reader did know) and lets blogger know.



4. Blogger rechecks the facts to satisfy himself (and preserve his own credibility, since he's about to say something pretty definitive).



5. Blogger posts the proof of the error.

And all this happened within a couple of hours, starting only hours after the story was posted. Of course, it would be better still if this were followed by (6) the media outlet corrects the error (prompted partly by the blogger's e-mail). We'll see whether that happens, though I'm not holding my breath . . . .

     By the way, I realize that this wasn't the biggest error in the world, but it was not insignificant. After posting my original post, I got this message from a reader:

I think that Justice Moore's claim that the state has spent $25K/day and $125 million total on the defense of this lawsuit is pretty strong proof that he's either completely insane or a horrible liar (both in the sense that he's bad a lying and in the sense that he's not a very good person). First of all, even if we assume that the suit is gobbling up fees at the clip of $25K per day, it would take more than 13 years and 8 months (including weekends and holidays) to reach $125 million. And to rack up even the 25K in a single day, he would have to have a small army of lawyers working exclusively on his case. For example, it would take 7 lawyers working 9 hour days and billing $400/hour (a high rate for even very experienced counsel, especially in 'Bama) to top 25K.

Whatever you think of this guy's legal position on the Commandments (I personally think it is a pile of poo), this has to cast some doubt on his competence as a state supreme court justice.

An understandable, if perhaps somewhat excessive, reaction -- but one that proves to have been caused by a FoxNews error, not by an error on Justice Moore's part. So the original message might not only have misled some people about the cost of litigation; it also led some to have an erroneously dim view of Justice Moore's intellect.

 
[David Bernstein, 8/14/2003 03:14:21 PM]
Why aren't there more Bhopals? What incentives to corporate managers of environmentally-sensitive industries have to act in ways that protect human health? In particular, I am wondering about chemical and nuclear companies and the like. We know that corporate managers are very much tempted to achieve short-term profit goals, because that is how they are judged. We also know that these same managers will bear only a fraction of the costs if something goes wrong; indeed, some environmental hazards created by management negligence may not come to light for decades. Thus, one might expect environmental disasters like Bhopal to be relatively common, as managers willingly accept small long-term risks of catastrophe in exchange for short-term gains. I'm curious about what incentives well-managed companies use to get their managers to behave responsibly. Perhaps minor Bhopals are really happening all the time. If so, (or even if not), I'd like to know what, if any, proposals economists and other academic types have made to improve corporate behavior. Obviously, criminal sanctions, civil fines, and command and control regulation could work (and I'd be interested in citations about their effectiveness for the type of problem I'm posing), but I'm most interested in policies that companies themselves put, or could put, into place. Reader input is very welcome to dbernste at gmu.edu. Thanks.

 
[Eugene Volokh, 8/14/2003 03:14:11 PM]
Sara Lee Suing Spike Lee. Thanks to reader Michael Newman for the pointer.

 
[Eugene Volokh, 8/14/2003 01:48:24 PM]
Can this be right? I'm extremely skeptical about the claims in this story:

Alabama Chief Justice Roy Moore stood firm Thursday, saying he has no intention of removing a Ten Commandments monument from the rotunda of the state judicial building, and will file papers taking the case to the U.S. Supreme Court. . . .

U.S. District Judge Myron Thompson of Montgomery, who ruled the monument violates the constitution's ban on government promotion of religion, had said fines of about $5,000 a day would have been imposed against the state if the monument were not removed.

Moore pledged to ask the Supreme Court to overrule Thompson and said the promised fines would add to the approximate $125 million the state has already spent defending the monument's place. The state is spending $25,000 a day of taxpayers' money on the case, Moore said. . . .

I just can't buy it -- $25,000/day, for a total of $125 million? I know lawyers are expensive, but I highly doubt that they're that expensive, at least in this case. Thanks to reader Michael Williams for alerting me to this.

UPDATE: Reader Josh Henderson pointed out that Chief Justice Moore wasn't referring to this case, but to

another case involving US District Judge Myron Thompson and the State of Alabama, specifically, Reynolds v. McInnes, 2003 U.S. App. LEXIS 14654. That case involved a consent decree arising out of employment discrimination litigation in Alabama. I don't know the details of that litigation. In its opinion, the 11th Circuit noted that, with contempt fines included, "the case has cost the taxpayers of the State of Alabama $ 125 million so far, and the tab is increasing at the rate of $ 750,000.00 per month." The appeals court respectfully noted ways the district judge could try to put an end to the "elephant" of litigation.

Moore was generally criticizing Judge Thompson, and using the Reynolds case (see this Eleventh Circuit opinion, especially pp. 35-43; thanks for fellow lawprof Michael Masinter for the pointer) as an illustration -- whether relevant or not, you be the judge -- of his criticism. Listen here for yourself.

     The FoxNews story is thus wrong. I e-mailed them about it; hope they correct it.

 
[David Bernstein, 8/14/2003 12:31:11 PM]
Incentives in the Ontario Civil Justice System: I received the following e-mail from a reader in Ontario, describing some of the features of the Canadian civil justice system that discourage speculative and abusive lawsuits:

The ... major reason for the dichotomy between the US, on the one hand, and Canada/England/Australia/New Zealand on the other, in terms of the amount of stupid nonsense lawsuits which are raised, is that in all of the latter, *the LOSER pays*.
In most of the provinces/states the rules provide that even for motions, etc. the loser must pay the fixed or assessed costs of the winner. In Ontario, costs are now ALWAYS fixed and made payable forthwith, which means that the loser of a motion must pay or face being found in default and having his pleadings struck out. As a result the comon US practice of paperblitz and flyspecking just does not exist.
As an adjunct, the courts can order security for costs if the plaintiff is a shell corporation, impecunious or if the claim is frivolous or vexatious: that is, security must be posted to cover the possibility that the plaintiff will lose.
As a further twist, Offers to Settle can carry cost consequences: if the defendant offers to settle a $1,000,000 claim for $100,000 and the plaintiff recovers a judgement for $50,000, the defendant can *recover his costs* on a substantial indemnity basis, from the date of the offer. If the plaintiff offers to settle for $900,000 and recovers $1,000,000 he will get costs at a higher level from the date of the offer. Since it costs (according to surveys) an average of $50,000 per side for the average matter which goes to trial, this means a $100,000 swing in the reward/punishment ratio *FOR THE INDIVIDUAL PLAINTIFF*. Makes quite a difference from a no-load, no-dollar contingent plaintiff position.
BTW, contingency fees are controlled and subject to court approval. The Law Society of Upper Canada has basically indicated that anything over 15% of an award over $1,000,000 is improper. No 40% after expenses rewards here!
Just some thoughts from Ontario.

Interesting.

 
[Eugene Volokh, 8/14/2003 11:08:04 AM]
Matt Welch busts Ariana Huffington: His Hit & Run post catches Huffington in a pretty serious inconsistency (or worse). Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 8/14/2003 09:58:33 AM]
Is it improper for judges to urge various revisions in the law? This issue has arisen most recently with regard to some recent remarks by Justice Kennedy about sentencing. I'm too swamped to get into the matter in detail, but I thought that I'd just make one point: Though there are plausible theoretical arguments in either direction on this, the current rules seem to allow judges to advocate for changes in the law. The American Bar Association's Model Code of Judicial Conduct, which as I understand it doesn't legally bind the Supreme Court Justices, but is representative of general professional views about how judges should behave, says, in Canon 4B:

A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code. ["Law" denotes court rules as well as statutes, constitutional provisions and decisional law.]

Commentary:

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. . . .

None of this, of course, tells us whether Justice Kennedy's recommendations are sound or not (nor is it dispositive of what the rules related to judicial commentary should be). But it does suggest that Justice Kennedy's comments aren't out of line with existing professional norms, norms to which I would tend to defer unless there were some pretty strong arguments to the contrary.

     In any case, that's probably the end of my remarks on the subject -- have to get back to real work.

 
[Eugene Volokh, 8/14/2003 09:58:10 AM]
Public high school for homosexuals sued for sexual orientation discrimination: Here's the press release:

Today New York State Senator, Ruben Diaz, Sr., along with a parent representing her four children under the anonymous name of �Doe�, filed a lawsuit in the New York Supreme Court challenging the legitimacy of the nation�s first �lesbian, gay, bisexual, transgender and questioning youth� (LGBTQ) public school, known as the Harvey Milk School. The children attend several poor, failing and under-funded public schools. . . .

A few weeks ago, New York City Mayor Michael Bloomberg announced that the City authorized 3.2 million dollars to establish the Harvey Milk School as the first publicly funded LGBTQ school in America. The money diverted to the School was taken from the capital expansion funds, and thus much needed capital expenditures for needy schools have suffered.

About 84% of the children served by the New York School System are racial minorities. Fifty-five percent of 3rd through 8th graders failed the state reading exams, and 65% of 3rd through 7th graders failed the math exams. In some schools, as many as 95% of the students fail basic competence evaluations. This year New York�s highest court found the schools �deficient� in learning, lacking �sound basic education,� and reported that the infrastructure was in poor shape with leaky roofs, lack of heating, and other hazardous conditions. Despite the pitiful status of the education system and the lack of funds, the City took 3.2 million dollars away from these minority student schools and diverted the money to fund a school that discriminates based on sexual preferences where heterosexuals are not welcome.

The lawsuit challenges the validity of the public school. New York Chancellor Regulation A-830 requires an equal education opportunity and prohibits discrimination based on "sexual orientation." Thus the School, which discriminates against heterosexuals, violates the Regulation. New York law also allows taxpayers to challenge public expenditures. . . .

     Interesting political spin (I find the racial angle unpersuasive, but who knows whether it will work politically), and an interesting legal challenge. It's not clear to me that the regulation -- which is just the school board's own internal rule -- is legally enforceable against the school board itself.

     However, N.Y. Executive Law sec. 291(2) says that "The opportunity to obtain education . . . without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex or marital status . . . is hereby recognized as and declared to be a civil right"; and N.Y. Civil Rights Law sec. 40-c(2) says that "No person, shall, because of race, creed, . . . sexual orientation or disability . . . be subjected to any discrimination in his or her civil rights . . . by the state or any agency or subdivision of the state." Moreover, N.Y. Executive Law sec. 292 defines "sexual orientation" as "means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived," which makes it even harder to argue that the antidiscrimination law shouldn't apply to "reverse discrimination" -- "heterosexuality" is explicitly listed as a sexual orientation against which you can't discriminate, alongside "homosexuality." (Section 40-c(2) which appears in the "public accommodations" article of the code, and public accommodations don't include education; but the text of the provision is written in quite broad terms, with no limitation to public accommodations, and a neighboring section in the same "public accommodations" article, sec. 40-a is clearly not focused on public accommodations.) As best I can tell, the complaint in this case doesn't mention this particular theory, but I imagine that if these plaintiffs don't raise it, someone else will, unless I'm badly misreading New York law on this.

     What if the school doesn't explicitly bar heterosexuals, but just pitches itself as a school aimed primarily at homosexuals, with the intention of drawing a mostly homosexual student body? My sense is that courts would treat discrimination in recruitment of students -- publicly stating that the school really wants mostly homosexuals -- as being tantamount to discrimination in admission, which is the general rule in antidiscrimination law.

     One final note about the policy question -- if it is legal to have a high school aimed at homosexual students, is it a good idea? I suspect that the backers of the high school (and of the smaller program that has apparently already existed for years) are correct that homosexual students get quite a bit of abuse, probably mostly verbal but often physical, from their classmates, and the school district has a duty to stop that. But my tentative sense is that having a separate program just for homosexual students isn't the best solution, because it (1) undermines any "treat people the same regardless of their sexual orientation" message the school is trying to send, (2) makes it easier for other schools to inadequately protect the homosexual students who stay there ("Look, I know this kid is being abused, but the school district has apparently recognized that schools can't really effectively protect homosexual students against such abuse, and that this is what the Harvey Milk program is for -- he should just go there"), and (3) distracts schools from an even more fundamental need to protect all students, whether they're being abused because they're homosexual, fat, short, or unpopular for any other reason. But this is of course getting outside my area of expertise (or, rather, even further outside my area of expertise, since I can't claim to be an expert on New York antidiscrimination law).

 
[Eugene Volokh, 8/14/2003 09:24:13 AM]
"A happy wife means a happy husband." Obvious, but true.

 
[Eugene Volokh, 8/14/2003 08:14:31 AM]
"Philosophers suffer in ways the rest of us do not": Here are a couple of paragraphs I just read; they come from an article that's actually quite thoughtful and helpful, but these particular items strike me as a bit too theoretical to be useful (emphasis added):

Dualism's best response to the problem of other minds [the difficulty with really knowing what another's mental state is, as opposed to just how the other person has acted] is the argument from analogy. The argument is roughly the following: I know from my own experience that a certain mental state causes me to behave in a certain way. For example, my belief that chocolate tastes good can cause me to eat chocolate. If I see another person eating chocolate, I can first infer from my own experience that the other person's behavior was caused by some mental state. Next, I know that this mental state was not mine, so it must come from another mind. Therefore, another mind must exist in the body I observe and that mind must have the same mental state I have observed in myself. Accordingly, when I see my friend Bill eating chocolate, I can infer from his behavior that he has a mind and that he believes chocolate tastes good. Another variation of the argument takes an inductive approach, which is based on our ability to determine the accuracy of other people's judgments about our own mental states. Because we know that others can draw correct inferences about our mental states from our behavior, we are justified in applying the same method to them.

Both these accounts, however, have been strongly criticized and rejected by most philosophers. The argument from analogy has serious weaknesses. The inference it supports is not a matter of logic, because logic cannot rule out the possibility that other people just act as if they have mental states when they actually do not. Neither can the argument be established inductively, because it uses only one case-your own-as evidence. This is an unacceptably weak empirical basis for the claim. To accept it would be like accepting the sight of one polar bear to establish the claim that all bears are white. It might be that the other people we think have minds and mental states are actually organic robots, controlled by advanced extraterrestrial beings. Because there is no direct way to check on the argument's conclusion that other people have mental states -- indeed, we would not even need to argue from an analogy if we were able to check directly -- the argument from analogy suffers from "fundamental defects which preclude any successful defense of it."

So dualism apparently leaves us in a bind. Our system of imposing punishment according to the individual's culpable mental state rests on an extremely weak epistemological foundation. Our ability to determine when persons accused of a crime acted with personal awareness of an offense's material elements -- conduct, its likely or possible result, and attendant circumstances -- is in doubt. In other words, it is hard to defend our punishment system if you are a dualist.

Is it just my perhaps excessive pragmatism, or is the argument that "It might be that the other people we think have minds and mental states are actually organic robots, controlled by advanced extraterrestrial beings" a not terribly persuasive objection? This is especially so because the issue here is whether we can justify punishing others based on our inference that they acted with a morally culpable mental state (e.g., throwing them in prison for murder because we believe they intentionally ran someone down with a car, rather than just doing so accidentally). After all, if they are organic robots, then why should we worry much about erroneously punishing them?

     The title of this post, by the way, comes from a line I read in a law review article several years ago, but now I can't find the original source. If you know who is to be credited with that line, please tell me.

 
[Eugene Volokh, 8/14/2003 07:55:39 AM]
Paul Krugman vs. Phil Carter: Paul Krugman posts on his Web site the Stars & Stripes letters and Financial Times article that support his claims about supposedly huge logistical gaffes by the military in Iraq, and closes with "Critics, do your homework!" Phil Carter responds, pointing out that "Quotation does not necessarily equal fact-checking," and then giving some rather detailed arguments for why Krugman's sources, and therefore Krugman himself, are mistaken. I'm not an expert on the subject, but Phil Carter, a former military officer (and now a UCLA law student), seems to be, and his post seems to be much worth reading.

 
[Eugene Volokh, 8/14/2003 07:41:06 AM]
More on the California governor's race: The text is so-so, but the picture is priceless. Thanks to GeekPress for the pointer.

 
[Jacob Levy, 8/14/2003 07:25:16 AM]
Doha round: Peter Gallagher has the [thin] text of the US-EU agreement on ag subsidies reported in this morning's papers, and more importantly is able to translate it for those of us not versed in trade law.

The big problem is that rather than exercise leadership in dealing with the hardest issues, they've apparently agreed to meet some "lowest common denominator" demands from their protected farm sectors.

For example: the US has backed-down, it seems, on its demand for sweeping cuts to all agricultural tariffs using a harmonizing 'swiss' formula that would have seen high duties reduced faster than lower duties. Now, it appears, both sides have agreed that in "sensitive" areas (read 'dairy', 'sugar', 'beef', 'rice') countries can keep high duties and make only minimum cuts as a contribution to an average rate of cut achieved over a broader group of product-lines. This is precisely the approach that delivered such poor results in the same 'sensitive' sectors in the last round of negotiations.

Also: the two sides seem to have agreed to (possibly) eliminate destructive export subsidies in products 'of interest to developing countries' but to (probably) take a much smaller cut out of export subsidies on products that are of export interest to themsleves. Read this as the EU cutting export subsidies on the sugar it imports from developing countries and then dumps back on world markets, but not making deep cuts into the absurd export subsidies on dairy products which are much more important to its own protected farmers.

I'll be reading more today to try to understand the scope of the agreement, but a) I don't think we have any reason to trust either of the parties to do the right thing on this question and b) who gave what initial responses provides me with some further grounds for skepticism. (See The Times of India, The Australian.) On the other hand, keeping the Doha round from collapsing in Cancun is a very good thing, and some US-EU agreement war probably necessary for that.


UPDATE: Astonishingly, even Le Monde's article offers the clear impression that the agreement offers far too little. The article doesn't quote any defenders of the status quo, and doesn't even quote anyone defending the agreement in any strong terms. But it devotes three paragraphs to the Cairns group's ambassadors' criticisms-- India, Australia, and Brazil are all heard from.

One of the keys to the slant of any newspaper story is seeing which way the unsupported passives go. "Questions are being asked," "the president has been criticized," etc. And in this story, the US and EU have been "very criticized for their high levels of agricultural protections."

See also: Dan Drezner and, via Dan, The Economist

 
[Tyler Cowen, 8/14/2003 06:07:23 AM]
Betting on Bush and boycotts: I think it is a tongue-in-cheek prank, but a new web site, www.americanactionmarket.org gives you the chance to bet on the policies of the American government, and not just on the terrorists. For instance, you can bet on "the first White House staffer to resign in disgrace, and when." I don't think the DARPA version of the plan had this option.

A web site with a greater chance of success, www.boycott-riaa.com urges us to boycott the products of the Recording Industry Association of America, for its lawsuits against music downloaders. It tells you who to boycott, and if you can't live without buying music, well there are always used CDs. The site also has useful information on copyright issues, no matter what your point of view.

 
[Tyler Cowen, 8/14/2003 05:52:13 AM]
Arnie's new advisor is Warren Buffett A few days ago I predicted that Arnie would prove a conservative populist, if elected, given his desire to maintain the value of his fame and entertainment career. Picking Warren Buffett as his main economic advisor is consistent with this view. If you don't already know Buffett's views, read his attack on the Bush dividend tax cut.

 
[Tyler Cowen, 8/14/2003 12:41:36 AM]
I should not have left this guy off the Nobel list: Edward Prescott. He developed real business cycle theory. He took the theory of time inconsistency from Thomas Schelling and applied it to macroeconomics. He has done important work on finance, specifically on the question of why stocks seem to earn so much more than bonds. (It is seven percent vs. one percent historically, on average, so why aren't you in the market?) I think his most underrated work is his recent book Barriers to Riches, which explains why poor countries are as messed up as they are (basically privilege, monopoly, and rent-seeking prevent the adoption of new and better technologies, of all kinds, institutional as well as material). Read this interview with him.

Thomas Sargent would be another good pick, I am most taken with his analysis of how you can't, in the long run, have a good monetary policy without a sound fiscal policy (are you listening George Bush?). Sargent also was an important early figure in the rational expectations movement, so the previous prize for Robert Lucas may lower his chances somewhat.

Wednesday, August 13, 2003

 
[Randy Barnett, 8/13/2003 08:24:16 PM]
New Scholarly Exchange on Bush v. Gore: I have not read it yet but there has appeared a new round in the exchange between Laurence Tribe and Nelson Lund over the decision in Bush v. Gore.

Lund's original reply to Tribe's Harvard Law Review article, "eroG v. hsuB" is here:

"'Equal Protection, My Ass!'? Bush v. Gore and Laurence Tribe's Hall of Mirrors"
Constitutional Commentary, Vol. 19, pp. 543-569, 2002

Tribe's response forthcoming in Constitutional Commentary is here:

"The Unbearable Wrongness of Bush v. Gore"
Constitutional Commentary, Vol. 19, p. 571, 2003

Lund's reply to this is here:

"Carnival of Mirrors: Laurence Tribe's 'Unbearable Wrongness'"
Constitutional Commentary, Vol. 19, pp. 609-618, 2002

Tribe has the last word here:

"Lost at the Equal Protection Carnival: Nelson Lund's Carnival of Mirrors"
Constitutional Commentary, Vol. 19, p. 619, 2003

 
[Eugene Volokh, 8/13/2003 04:06:14 PM]
Blog size: As I'm sure you've noticed, the blog has grown quite a bit over the past several months, from the original two Volokh Brothers to our now large conspiracy.

     I am very pleased with my cobloggers' contributions; I'm convinced that much of our huge increase in readership flows from their presence; I know that it's important for me to be able to share the workload with others; and I just enjoy working together on a common project with my friends and colleagues. I strongly encourage our readers to read posts from all our cobloggers, who are carefully hand-selected group.

     Nonetheless, if you are one of those readers who find that the blog has gotten too large, has too many voices, or departs too much from your favorite topics -- or if you've come to us from Jacob Levy's old blog or David Bernstein's old blog, which we've merged with, and still want to get Pure Jacob or Pure David -- we do have options that let you custom-tailor your reading. If you want to read only some of the bloggers, you should use a URL such as:

http://volokh.com/index.htm?bloggers=davidb,tyler,sasha,michelle

As you can see, the "?bloggers=" should be followed by a list of names separated by commas -- the names are the relevant conspirators' first names, except that David Bernstein is "davidb" and David Post is "davidp." You should also be able to bookmark the URL for future reference.

     You can likewise exclude a blogger or two, by using a URL such as:

http://volokh.com/index.htm?exclude=eugene

     Let me say it again: I think that all the conspirators' contributions are very good, I recommend that you read them all, and if I had my druthers, everyone would read just the entire blog. But I also want to make the blog as valuable as possible for our readers, and I realize that our readers might have their own preferences, so I've tried to provide you with as much choice as possible.

 
[Eugene Volokh, 8/13/2003 03:49:18 PM]
An interesting comment on blogging: From Good Morning Silicon Valley:

Dammit, Jim, it's a format, not an industry: Bit of a dust-up going on in the blogging world these days -- a backlash of sorts against the creeping institutionalization and commercialization of the blogosphere. The Berkman Center for Internet & Society at Harvard Law School is hosting BloggerCon 2003 ("Celebrating the art and science of weblogs") on Oct. 4, and attendees will hear from moderator Dave Winer and panels including some familiar A-listers like Glenn Reynolds, Doc Searls and Adam Curry. What rankled some of those invited was that they were also invited to pay $500 for the privilege. Cartoonist August Pollak comments: "Apologies to the 90% of the audience at this thing who will likely be reporters for magazines and websites, their fees paid by their respective editors to Find Out What The Kids Are Up To These Days, but I not only am not going to this thing, but publicly and pre-emptively pity anyone in that remaining 10% who would actually pay that much to do so." Explains Jesse Taylor of Pandagon.net, "The 'art and science' of weblogs generally boils down to getting one and blogging." And Andrew Orlowski at The Register closes out an acid rant by noting: "The medium is not the message. Imagine how tedious newspapers would be if every other story proclaimed 'We use INK!!!' The writers don't care, and the readers don't care, how this message was delivered: but readers do care about quality."

Go to the site itself for the links.

 
[Eugene Volokh, 8/13/2003 03:26:33 PM]
Brain food: writes Dan Gifford, pointing to this New Scientist article:

A dietary supplement used by many athletes to boost muscle power can also increase brain power, at least in vegetarians. New research shows that non-meat eaters taking the supplement, called creatine, perform better in various memory tests than those taking a placebo.

However, it is not yet clear if the benefits would apply to meat-eaters, as they already gain creatine from their diet. . . .

Creatine helps cells replenish their stocks of a chemical called ATP, which is the immediate source of energy for cellular processes such as the contraction of muscle fibres. Athletes often take creatine for sports such as sprinting that require intense bursts of energy.

Thinking is also energy intensive. . . .

The human body can make creatine, but much of it comes from eating meat and fish. Rae thus suspected any effects would be greater in non-meat eaters, and began her research with this group. Both vegetarians and older people have been shown to have lower creatine levels in their muscles.

Rae and her colleagues asked 45 vegetarians in their twenties to take either five grams of creatine, equivalent to about two kilograms of meat, or a placebo daily for six weeks.

The volunteers' reasoning ability and short-term memory was tested before and after the six-week period. In one test, for example, Rae's team found that those who took creatine could remember an average of 8.5 numbers compared with 7.0 for those on the placebo. . . .

Rae says the team intends examine the effect of creatine on meat-eaters in future. . . .

Taking creatine is not known to be dangerous for healthy people, but it can cause water retention, as well as socially undesirable effects such as bad breath and flatulence. . . .

Possible implications:

1. In the words of Dan Gifford, who e-mailed me about this article, "maybe Arnold is on to something."



2. Maybe this is another thing for us omnivores to taunt our vegetarian friends about.



3. Or maybe it's a convenient excuse. "Pardon my bad breath / flatulence -- unavoidable, really, given what a great thinker I am."

 
[Jacob Levy, 8/13/2003 02:55:23 PM]
More on ag subsidies: Today I've done some reading on Peter Gallagher's blog about trade negotiations and agricultural goods; the post linked to here argues persuasively that even the currently-hinted-at reductions in agricultural export subsidies that could, possibly, come out of the Doha round would do little good unless accompanied by reductions in access barriers (import quotas and the like.) Also recommended: this article in the current issue of The National Interest: "Agri-vation: The Farm Bill from Hell," by C. Ford Runge (only a short extract available online, unfortunately).

 
[Eugene Volokh, 8/13/2003 01:32:31 PM]
Fines for human shields? Several readers e-mailed me to express misgivings about this story:

When Ryan Clancy went to Iraq to protest the war, he knew he was breaking the law. He thought the penalty was a $500 fine, a price he was willing to pay for the cause of peace.

But when Clancy recently got a call from federal officials, he learned the stakes are much higher. Authorities have fined Clancy $10,000, and if he doesn't pay, he could spend up to 12 years in prison. . . .

Clancy, 26, of Milwaukee, is charged with violating sanctions the U.S. and other countries passed in the early 1990s prohibiting travel to and trade with Iraq. They were in effect in February, when Clancy arrived there as one of nearly 300 protesters from around the world who camped out near power plants, water treatment facilities and hospitals to act as "human shields" in hopes their presence would prevent American bombings.

Taylor Griffin, spokesman for the U.S. Treasury Department, said he could not comment specifically on Clancy's case. However, he did say fines were being issued against some of the human shields not because they were protesting but because they ignored the sanctions, which were partially lifted when the rebuilding process in Iraq began.

"Unlike in Iraq under Saddam Hussein, the freedom to express one's views is a right afforded to all Americans," he said. "However, in a society governed by the rule of law such as ours, choosing which laws to abide by and which to ignore is not a privilege that is granted to anyone."

Federal authorities may be willing to negotiate the amount of the fine with Clancy, Griffin said. . . .

I'm not sure how wise this sort of enforcement is, but it's pretty clearly authorized by law: The Iraqi Sanctions Act of 1990, Pub. L. 101-513 specifically ratified Executive Order 12724 (Aug. 9, 1990), which prohibited (pursuant to previously enacted federal statutes) transactions related to travel to Iraq by U.S. citizens (except those related to departure from Iraq, the official business of the federal government or the U.N., or travel for journalism by people regularly employed by news-gathering organizations). 31 C.F.R. sec. 575.207 echoes this. And though I haven't focused closely on the specific penalty scheme, $10,000 fines seem to be well within the range authorized by the statute.

     The government's power to block commerce with our nation's enemies -- including travel there -- is, I think, generally quite legitimate. And though I can imagine cases where there are mitigating circumstances, traveling to a country in order to interfere with America's military policy towards that country does not seem to me to be such a mitigating circumstance.

 
[Eugene Volokh, 8/13/2003 11:47:12 AM]
Brothers: Matt Welch writes, at Reason's Hit & Run,

The Tyranny of Fraternal Assistance

Next Thursday will be the 35th anniversary of the Soviet invasion of Prague, a vile act which put an iron blanket over freedom in Central Europe for the next 21 years. The University of Michigan has an interesting website full of documents and posters from the first few days after the tanks rolled in.

(Go to Matt's post for the link.)

     This reminds me of a Soviet-era joke. A Czech is asked, "Do you consider Russians your brothers or your friends?"

     "My brothers, of course," the Czech replies.

     "Why 'of course'?"

     "I get to choose my friends."

 
[Tyler Cowen, 8/13/2003 11:18:06 AM]
Nobel prize update, more opinions Here is some not so serious mock voting on the economics Nobel Prize from the argmax.com website (a good source of economic information, I might add).

Some opinions on listed candidates, following up on my earlier blog post on this topic:

Eugene Fama - Definitely deserving, and very likely to get it. He has been central to empirical finance and the efficient markets hypothesis. Yes, I was unnerved when I heard him praise the Black Monday traders of 1987 for "getting the market down very quickly" (this is from memory, not an exact quotation), but he is another in a long line of Chicago no-brainer picks. In addition, I can't resist how the guy puts things.

Israel Kirzner - I love his book Competition and Entrepreneurship, but he is too Austrian for the mainstream voters and he has not kept a high enough profile in the profession. He has decided to devote the rest of his life to rabbinic scholarship, which I think is more interesting than studying Mises, but it won't help his chances any. See here for a summary of his contributions.

Jean Tirole - A brilliant guy and clear expositor. The central figure in fleshing out principal-agent theory. His pieces show a remarkable level of intelligence, but most people could not tell you what his central idea is. I give him a fifty percent chance.

Paul Romer - A father of the "New Growth" theories, involving increasing returns. Likely to win the prize, unless something unusual happens. He is not incredibly prolific, and has a strong reputation for intellectual honesty, so I would bet on him to win. Here is his home page.

Robert Barro - Has done much of the key empirical work on economic growth. Plus he presented the "Ricardian equivalence" idea that it does not matter whether a deficit is financed by taxes or borrowing. It is less well known that he was an early contributor to sticky-price macroeconomics and political business cycles. He was once seen as a passing fad by his critics, but his reputation continues to rise, he is a true thinker, in economics for the ideas and for the long haul. His Getting it Right, by the way, is an excellent introduction to market economics.

Clive Granger and Christopher Sims - Someone is likely to win a prize, probably joint, for time series macroeconomics, and these are the guys. That being said, most economists don't really believe in this stuff, no matter what they tell you. The notion of "Granger-causality," for instance, tells you to look at which variable moved temporally first. Here is one very critical view, but still I vote yes.

 
[Eugene Volokh, 8/13/2003 10:37:06 AM]
Another Stu's Views:

 
[David Bernstein, 8/13/2003 10:36:11 AM]
Waldheim and Schwarzenegger; Sharpton and Lieberman (et al.): Timothy Noah over at Slate is making a big fuss over Schwarzenegger's failure to denounce loathsome ex(?)-Nazi Kurt Waldheim, with whom Schwarzenegger has some personal ties. According to Noah, "If Schwarzenegger doesn�t renounce Waldheim in a highly public way, he can forget about ever becoming governor of California." I doubt Waldheim is going to become a major issue in the California governor's race. And while any denunciation of loathsome ex(?)-Nazi Waldheim would be all to the good, I am more concerned with the way all of the Democratic candidates are being so nice to the far more currently dangerous loathsome ex(?)-anti-Semitic demagogue (and Tawana Brawley hoaxer) Al Sharpton. Can a Democrat become president without "renounc[ing] [Sharpton] in a highly public way?"

 
[Eugene Volokh, 8/13/2003 10:35:57 AM]
A bit more about the recall and resignations: Rick Hasen follows up to me about the recall and resignations:

Though the law is absolutely clear that the recall election goes forward if Davis resigns and
Bustamante steps in, there are two questions that are somewhat in dispute.

1) If Davis resigns, do the voters vote on part 2 only [the replacement] or also on part 1 [the recall]? . . . See . . . this article.

2) If Bustamante becomes gov. upon a Davis resignation and loses part 2 of the recall, can he go back to be the lt. gov? . . .

On the first question, that CNSNews article quotes Dan [Lowenstein, a UCLA professor and Rick's and my former election law teacher -ed.] and Scott Rafferty on the point. I think Dan probably has the better of the argument (part 2 only), but it wouldn't surprise me if a court ruled otherwise.

On the second question, I believe that Bustamante would be out as lt. gov. if Davis resigned.

 
[Tyler Cowen, 8/13/2003 10:25:33 AM]
Northern Ireland and the Palestinians Walking around central Belfast today, I was struck at how few signs of conflict I saw (some of the gutted buildings may have been bombed but you see similar architectural wrecks in the States). In fact the whole dispute seems to have receded to a remarkable degree. To make sense of this I read Endgame in Ireland. Here is the money quote:

"The republican movement thought that their war of attrition would eventually bring about disengagement of the British government. Behind the change in policy or tactics by the republican movement in the early '90s was a realisation that their campaign was failing, and that if the campaign continued, then their only future was the slow decline and extinction of that campaign. I think that they decided that, while the campaign still had some life in it, they would try and cash it in for political advantage..."

Along these lines, today I saw a painted mural in West Belfast, an IRA stronghold, which read: "We stand not on the brink of victory, but on the brink of sectarian disaster." Might this someday be written on a wall in the West Bank?

Peace also came about because of growing secularization, the potential for the EU to guarantee stability and autonomy, greater prosperity in the Republic of Ireland, and a turnover of generations. The troubles are probably not over, but almost everyone up here feels that a corner has been turned.

You could write for hours on why the Israeli-Palestinian conflict is harder to solve (greater initial gap between the disputants, greater outside interference, Arab need to scapegoat Israel, to name three reasons, see the piece on my home page, click on my name to the left), but still I find my time up here pretty heartening. When I was a boy, my father told me for years that the Irish conflict would never be solved.

I asked one West Belfast cabbie if he thought the peace would last. He said resignedly: "Yeah, people are gettin' too used to it."

 
[Eugene Volokh, 8/13/2003 09:45:25 AM]
Would a Davis resignation cancel the recall, and leave Bustamante as governor? I haven't investigated this myself, but Rick Hasen -- a top election law specialist at Loyola Law School here in L.A. -- has, and I trust him on this. Here's his original post on the subject:

Elections Code section 11302 states that "If a vacany occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed." The section also provides that the vacancy is filled under usual succession rules (meaning the Lt. Governor becomes governor), but only until the winner of the recall election is declared qualified.

So when is a recall petition "filed" pursuant to 11302? There is no relevant caselaw that I could find. Section 11101 provides that "each section of a recall petition shall be filed with the elections official of the county in which it was circulated." A section is simply a page (or set of pages) from the recall petition with signatures on it. There is no single "filing." These sections are then counted by the election officials, with results sent to the secretary of state. when there are enough signatures, the Secretary of States certifies that there are enough signatures. 11102. Some petition sections have already been filed. So at the earliest, it is too late now for Davis to resign to prevent triggering a recall election. At the latest, once (if) the Secretary of State certifies, it should be too late for Davis to prevent the election from going forward. Not that anyone thinks Davis would actually resign before certification, but yet another gap in the recall statutes. . . .

This happened while the petitions were being circulated, and before the recall election was scheduled; but as he pointed out later, the situation is even clearer once the election was certified. For more posts on the recall, and on the resignation scenario, click here and scroll or search.

     NOTE: I stress again that I'm not up on this question myself; if you have disagreements or questions, address them to Rick, not to me (though I suspect that Rick is quite swamped right now, and may not be able to respond).

 
[Eugene Volokh, 8/13/2003 09:38:46 AM]
Bustamante: Arnold Steinberg, a top California Republican campaign consultant, writes about the California recall:

[The Democrats'] . . . "unity" candidate is the state's No. 2 officeholder, Lt. Gov. Cruz Bustamante. His disingenuous theme urges voters to (A) reject the recall, and then (B) vote for him. It's more than a confusing message. Does anyone really think Mr. Bustamante wants the recall to lose, if he could win?

An interesting point; I think that Bustamante's position is in principle quite legitimate -- "I, as a loyal Democrat and a colleague of Gray Davis, think he shouldn't be recalled; I wouldn't be campaigning against him if it weren't necessary; but since without me (or someone like me) the governorship would pass to Republicans if Davis is recalled, I need to be in the race as a second-best solution." Bustamante can say this with a straight face, and Democratic voters can cast a "No on the recall / Bustamante as successor" vote with a clear conscience. And yet there is the risk, I think, that voters who are on the fence will not buy Bustamante's "I'm the second-best solution" position. Hard to tell for sure, but it seems like another potential problem for the Democrats.

 
[Eugene Volokh, 8/13/2003 09:30:54 AM]
Left? Right? Up? Down? Reader Shannon Maders points to the following sentences by Ronald Brownstein in the L.A. Times:

Yet Dean is as much target as model. Kerry recently attacked him from the left, complaining that Dean's call for repealing all of Bush's 2001 tax cut (which Dean wants to apply to a new drive to cover those without health insurance) would raise taxes on the middle class as well as the rich.

Sen. Joe Lieberman of Connecticut, desperately seeking a foothold in the race, last week attacked Dean from the other direction, portraying his rival as too liberal to win a general election. Lieberman echoed the arguments raised against Dean this spring by the Democratic Leadership Council, the centrist Democratic group that Lieberman used to chair.

Criticizing people for raising taxes on the middle class is an attack "from the left"? Not a ridiculous position, I suppose, but far from an obvious one. "Left" and "right" do have some utility as labels, but they don't seem to make much sense here.

 
[Eugene Volokh, 8/13/2003 09:26:49 AM]
Amuck or amok?, asks a reader, responding to an earlier post. The answer, as is often the case with such linguistic issues, is that both are acceptable, as dictionaries make clear. A google search suggests that "amok" is more common, though "amuck" is common enough; a NEXIS search is unhelpful, because it quite reasonably treats the two as synonyms, so that a search for either finds both. The word comes from Malay, which helps explain the alternate spellings -- when words are transliterated from a language that isn't spelled using the Latin alphabet, there will naturally be many possible transliterations, and several of them may end up being fully standard in English (cf. Chanukah / Hanukkah, tsar / czar, the umpteen spellings of Kaddafi, etc.).

UPDATE: A couple of readers e-mailed to say that Malay these days is written using the Latin alphabet; however, the word was borrowed into English in the late 17th century, which I suspect was before the Latin alphabet was adopted there.

 
[David Bernstein, 8/13/2003 08:05:05 AM]
A Court that Still Believes in Common Law Norms of Freedom: An eighteen year old boy dives into shallow water in a lake at a public beach, and sues the local government for his severe injuries. The defendant notes that swimming in the lake was strictly prohibited. The plaintiff responds that this prohibition was widely ignored, and that this fact shows that the defendant bears responsibility for his injuries, as does the fact that the beach was later closed to the public. What result?

In the U.S., a sympathetic jury would likely award millions to the plaintiff on a failure to adequately warn theory, and the appellate courts would come up with some Naderite or law and economics gobbledygook [alas, though I'm an L & E fellow traveler, I think much of how L & E is used in the Torts realm is gobbledygook] to justify upholding the result. But this case occurred in England, and the result was a masterful House of Lords opinion denying the plaintiff's claim. An excerpt:

46. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ (at para. 45) that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (British Railways Board v Herrington [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves (Reeves v Commissioner of Police [2000] 1 AC 360).

47. It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.

48. As for the Council officers, they were obvious motivated by the view that it was necessary to take defensive measures to prevent the Council from being held liable to pay compensation. The Borough Leisure Officer said that he regretted the need to destroy the beaches but saw no alternative if the Council was not to be held liable for an accident to a swimmer. So this appeal gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers. On the other hand, if the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures. Sedley LJ was able to say that if the logic of the Court of Appeal's decision was that other public lakes and ponds required similar precautions, "so be it". But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people's lives.

Read the whole thing. And weep for the state of the legal system on this side of the Pond. (Via overlawyered.com)

UPDATE: My friend Robert Lax, an excellent attorney in New York, points me to a recent Appellate Division case in New York (Salas v. Town of Lake Luzerne, 745 N.Y.S.2d 108, 111 - 112 (N.Y.A.D. 2002) suggesting that New York courts are not especially friendly to plaintiffs injured diving into shallow natural waterways. Yet consider this abstract from the New York Times two years ago:

Community swimming hole, part of popular communal culture that once defined summertime rural landscape in places like Highland Falls, NY, is quietly fading away as infux of affluent newcomers assert themselves as landowners; holes are being fenced off out of concerns for privacy and fear of lawsuits, but also because many newcomers are less willing to share prime waterfront property.

Why are landowners afraid of these lawsuits when the law is generally in their favor? I suspect the problem, as in many areas of law, is that American courts almost always apply balancing tests of one sort or another in torts cases, and a defendant can never be certain in advance of what the outcome of the balancing test will be, even if the law seems favorable. Plaintiffs therefore are tempted to sue (given the low cost of doing so), in the expectation the defendant will settle for a significant sum rather than face the possibility of a huge verdict. Basic math suggests that a $5 million injury case is worth $250,000 if the plaintiff only has a 5% chance of winning at trial. What I like about the English case discussed above is its forthright refusal to apply a balancing test, and adherence to the doctrine of assumption of risk. Note that in the English case the plaintiff's argument focused on the fact that the defendant knew that many visitors disobeyed the rules against swimming, and didn't attempt further measures to discourage swimming. How many American courts would grant summary judgment to the defendant in such circumstances? On the general decline of the notion of personal responsibility in American law, see here.

 
[David Bernstein, 8/13/2003 08:00:57 AM]
Inappropriate Analogy of the Day:

"[Schwarzenegger's] like the golem," said producer Ludi Boeken. "All these Jewish Democratic studio people created this Terminator which has conquered the world for them, just like the golem, created by Jews in Prague in the Middle Ages. The golem was bigger and stronger than normal mortals. And once they woke him up, he controlled those who created him. He has a life of his own, he's uncontrollable, and he's the Republican candidate. Now all these left-wing liberals are biting their lips and saying: What did we create?"

Tuesday, August 12, 2003

 
[Eugene Volokh, 8/12/2003 05:27:01 PM]
Pledge break: We don't want your money. (Well, if we thought you could give us lots of money, we would want it, but since we're likely to get only a little bit, it's not worth the hassle of asking, and of splitting the spoils.) But we do want eyeballs! So if you like this blog, and think some friends of yours might like it, too, please recommend it to them. E-mail them a post that you think they might particularly like. Tell them that we aren't just for conservatives. Remind them that "I tried reading a blog a while back, and thought it was stupid, so I don't read blogs" makes as much sense as "I tried reading a book a while back, and thought it was stupid, so I don't read books."

     Just remember -- the more readers we have, the better it is for you because . . . . Well, actually, there's really virtually nothing in it for you, but we'd like you to do it anyway.

 
[Eugene Volokh, 8/12/2003 05:07:58 PM]
Why Fox can trademark "fair and balanced": Slate recycles an old Explainer that focused on "Let's Roll," and that has a fair and balanced -- even accurate -- explanation of this general issue. Note, though, that the explanation is necessarily pretty general; a lot depends on the details. In particular, even if the term is protected by trademark law against some uses (e.g., a local non-Fox station advertising "For Fair and Balanced News, turn to Channel 57," which might be an infringement, since it's possible that it will confuse viewers), it may not be protected against other uses (such as in the title of Franken's book).

 
[David Bernstein, 8/12/2003 04:32:19 PM]
Definitely a Spelling Error: Definitely must be among the most commonly misspelled words. I've seen it misspelled many times in many ways. A Google search for "definately" brings up 725,000 web pages. "Definatly" yields another 109,000 hits, and "definitly" 115,000. Just one of those things that's started to irritate me for no particular reason, such as the way people use the word "literally" to mean "figuratively." I mean, I'm like literally gonna blow my top soon, like definately, ya know!

 
[David Bernstein, 8/12/2003 03:40:13 PM]
Banned in Australia: Several email correspondents were outraged that I suggested (Blogger link not working, see post from yesterday) that pro-Israel activists could eventually be the targets of hate speech rules used to silence anti-Semites. Yet consider the following incident from Australia (source: You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws):

In 1998, The Australian Financial Review published a short opinion column on the Middle East by journalist Tom Switzer. He wrote that "the Palestinians cannot be trusted in the peace process." Switzer noted that since 1993 the Palestinians had engaged in more than 300 terrorist attacks against innocent Israeli civilians, and "so it would appear that the Palestinians remain vicious thugs." The local Palestinian Authority representative filed a complaint with New South Wales Anti-Discrimination Board. Even though it was pretty obvious that Switzer was referring to the Palestinian leadership, and not the Palestinian people in general, a tribunal found the publisher guilty of inciting hatred against Palestinians in violation of the racial vilification provisions of the Anti-Discrimination Act. (see Richard Ackland, Defending the Right to be Obnoxious, Sydney Morning Herald, August 4, 2000).

By this standard, the comments section of the pro-Israel Little Green Footballs site would have been forcibly closed down a long time ago. My understanding is that the official Jewish community in Australia strongly supported the adoption of laws banning racial villification, and now it's illegal to note that Arafat and his minions are in fact vicious thugs.

The thing to keep in mind about hate speech rules is that they will inevitably be enforced at some point by officials who are either (1) power hungry; (2) driven by repugnant ideological views; (3) people who lack common sense; or (4) some combination of (1)-(3).

UPDATE: The Australian opinion may be found here, and is even more ridiculous (and dangerous) than my report of it may have seemed. Here is a key quote:

In our view, based on these considerations, the ordinary reasonable reader would be incited to hatred or serious contempt of the Palestinians by reading the Switzer article. The article uses brief and one sided "factual" information to justify extremely negative generalisations about the Palestinians. It paints them as inferior to the Israelis in the sense that all the features attributed to the Palestinians are negative, while those attributed to the Israelis are consistently positive. It negates the worth and value of the Palestinian people in the peace process. The effect is to incite an ordinary reasonable reader to hate or despise Palestinians, to view them with contempt and to see them as inferior to the Israelis.

So, you see, a one-sided opinion piece on the conflict between Israel and the Palestinians is illegal in Australia. Thank God for the First Amendment.

 
[Eugene Volokh, 8/12/2003 03:08:54 PM]
Department of Education Office for Civil Rights, speech codes, and the First Amendment: I'm on balanced pleased with the OCR's letter, which says (among other things) that

OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the [antidiscrimination] statutes enforced by OCR. . . . OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

The letter (which is also available in PDF) also particularly clearly acknowledges that the same is true as to private institutions:

There has been some confusion arising from the fact that OCR's regulations are enforced against private institutions that receive federal-funds. Because the First Amendment normally does not bind private institutions, some have erroneously assumed that OCR's regulations apply to private federal-funds recipients without the constitutional limitations imposed on public institutions. OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.

Nonetheless, the OCR continues to say that

Harassment of students, which can include verbal or physical conduct, can be a form of discrimination prohibited by the statutes enforced by OCR. Thus, for example, in addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR. In order to establish a hostile environment, harassment must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student's ability to participate in or benefit from an educational program. . . .

So the OCR is indeed saying that universities should and may restrict otherwise protected speech -- speech that's not an otherwise punishable threat, libel, fighting words, etc. -- if the speech is (among other things) "severe, persistent or pervasive" enough "to limit . . . a student's ability to . . . benefit from an educational program" (judged from the perspective of a reasonable student as well as this particular student). This might ultimately prove to be a very narrow exception -- or it might not. The theory of "hostile work environment" law, after all, is that offensive speech in the workplace, if it's "severe or pervasive" enough, creates a "hostile, abusive, or offensive" work environment, thereby changes "the terms or conditions of employment," and thus violates employment discrimination law; and courts have made clear that the speech doesn't have to be severe enough to drive the employee from the job or inflict psychological injury -- it's enough if it makes the "environment" "offensive."

     Pro-speech-code forces can argue, have argued, and will argue that offensive campus speech -- if it's "severe" enough (whatever that means) or "pervasive" enough (whatever that means) -- would create an "offensive educational environment," which will "limit" (not eliminate, but "limit") a student's ability to derive the full benefit that an educational program provides. And that could apply to a wide range of speech, including political or religious advocacy, social commentary, humor, and the like. Here's how one such argument would go: "The student newspaper has repeatedly published material that stereotypes, belittles, and offends black students. That's 'persistent' and 'pervasive' conduct that 'limit[s]' their 'ability to' fully 'benefit from our educational program,' since we have evidence that students learn best when they feel that they're respected by their peers and that they're in a welcoming, accepting environment." When the terms involved are so vague, such arguments are easy to make and hard to definitively disprove.

     So the OCR's letter isn't bad, but it doesn't squarely put the Administration on the side of speech protection here. I wish that the OCR had instead stressed that the First Amendment doesn't allow the punishment of speech (unless the speech fits within the existing First Amendment exceptions, such as for threats or fighting words), and that there's no escape hatch for university administrators that want to stretch words such as "pervasive," "severe," "limit," or "ability to benefit." If administrators want to fight speech that creates supposedly offensive environments, they have ample power to do so, by engaging in counterspeech, by working with other students to create an open and tolerant social climate, and through other means. They do not need to suppress student speech, and have no constitutional power to do so.

     For more on this question of speech codes and federal and state educational discrimination laws, see Part D of this memo that I wrote responding to a proposed UCLA campus speech code.

 
[Eugene Volokh, 8/12/2003 12:08:42 PM]
Fox v. Franken:

Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase "fair and balanced" in the title of his upcoming book.

Filed Monday in Manhattan, the trademark infringement lawsuit seeks to force a Penguin publisher, Dutton books, to rename the book, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." It also asks for unspecified damages.

Fox News registered "Fair & Balanced" as a trademark in 1995, the lawsuit said.

Franken's "intent is clear -- to exploit Fox News' trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book," it said. . . .

This strikes me as an extremely weak case (much weaker than Spike Lee's recent attempt to shut down the planned Spike TV, for instance) -- I find it extremely unlikely that readers would indeed be confused by the use of "Fair and Balanced" here. Moreover, it seems to me like a really silly move on Fox's part, since it looks like a heavy-handed and legally ill-founded attempt to suppress criticism.

UPDATE: A New York Times article reports that:

[Fox's lawyers] argue that Fox has trademarked "Fair and Balanced" to describe its news coverage and that Mr. Franken's use of the phrase would "blur and tarnish" it.

"Franken is neither a journalist nor a television news personality," according to the complaint. "He is not a well-respected voice in American politics; rather, he appears to be shrill and unstable. His views lack any serious depth or insight." . . .

Lawyers for Fox who filed the complaint also take issue with Mr. Franken's book cover because it "mimics the look and style" of two books written by Bill O'Reilly, a prominent Fox News personality. Mr. O'Reilly is also pictured on the cover, just beneath the word "Lies."

The court papers refer to Mr. Franken, who is a former "Saturday Night Live" writer and performer, as a "parasite" who hopes to use Fox's reputation to confuse the public and boost sales of his book.

Mr. Franken is also accused of verbally attacking Mr. O'Reilly and other Fox personalities on at least two occasions, and of being "either intoxicated or deranged" as he flew into a rage at a press correspondents' dinner in April 2003. Mr. Franken has not filed a response in court to the suit. . . .

     I suppose that the criticisms of Franken are in some measure to the tarnishment theory -- but they still make the complaint sound like a snit fit. Also, the tarnishment theory is in any event very weak: 15 U.S.C. sec. 1125(c), which discusses "trademark dilution" (the legal rubric under which tarnishment claims generally fall) specifically exempt "All forms of news reporting and news commentary" as well as "Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark." First, Franken's book is news commentary. Second, the more that Fox argues that Franken is referring to it, and unfairly competing with it, the more Franken would be able to claim that he is therefore engaging in "comparative . . . promotion" that identifies his work as an alternative source of commentary to Fox. (Thanks to reader Jason Walta for pointing me to the New York Times article.)

 
[Eugene Volokh, 8/12/2003 11:55:28 AM]
Debating game, with real candidates: From FoxNews:

"Who Wants to Be Governor of California? The Debating Game" will include a political debate produced in the style of a game show, [the Game Show Network] announced Monday. . . .

The channel said it is lining up five candidates to take part in the Oct. 1 program. The show will chronicle their campaigns and include a "wide-ranging" debate, including buzz-in answers and bonus questions, the channel said. . . .

The five will compete for a prize of $21,200, the maximum corporate campaign contribution allowed by California law, the channel said. The prize will go to the candidate in the group who receives the most votes in the Oct. 7 recall election. . . .

 
[Jacob Levy, 8/12/2003 10:02:47 AM]
Out of date movie review: John Holbo recently rented Daredevil, and was, shall we say, not pleased. I'm in roughly the same ex ante position that he is:

One of the burdens of being a comics nerd - or former comics nerd, whatever - is an obscure compulsion to bear witness to witless, loveless, artless, over-budget desecrations of fond memories of youth. I don't have to see it in the theater. But I have to rent it. That's the rule.

So, as it happens, I rented Daredevil myself recently.

Now, admittedly, my view might be skewed by the fact that the same weekend I went out to see LXG in the theater. The makers of LXG had, as their source material, one of the cleverest, wittiest, most literate, and most entertaining comics of the past decade, written by one of the medium's handful of all-time greats, Alan Moore. As I opined when talking about X2, one of the things that distinguishes the best comics movies is that they borrow plots, not just premises and character outlines, from the comics. For some reason the people who adapt non-action/adventure comics-- Road to Perdition, Ghost World-- seem to be able to remember this pretty well; those who adapt, say, Superman have a much harder time with it. This is partly because of the forever-ongoing nature of most superhero comics; a movie plot needs to get tied up, and does not necessarily need to leave the whole cast of characters alive and kicking. But League of Extradordinary Gentlemen was a perfectly movie-sized six-issue miniseries (now collected in a single volume). So, given a movie-sized plot by a master plotter, the moviemakers... chucked the whole thing, added Tom-frickin'-Sawyer, and started blowing things up. Given a mood that depended crucially on mid-Victorian-era cliches, the moviemakers... pushed it forward a few decades and stuck tanks, machine guns, and genetic engineering into the mix.

If I'd never heard of the comic, I think I would've found LXG... mostly harmless, a slight piece of summer blow-'em-up fluff with a few clever ideas. Having read the comic and followed the making of the movie, I walked in expecting a massive train wreck, an incoherent disaster. Instead, it was... eh. A dumb, disappointing waste.

So, as I said, I watched LXG the same weekend as I did Daredevil. Now, I wouldn't say Daredevil was good. But I don't think it was nearly as bad as it's been made out to be. Its introductory twenty-minute narration, admittedly, felt like it lasted for an hour or more. Someone really should have cut every scene of Affleck jogging in the red costume, pumping his arms with his billy club in one hand and looking for all the world like a deranged relay runner. And, as John points out, there are some critical lapses in, well, logic and story structure.

I'm also, finally, ready to stop taking on faith that Affleck is a good actor. I've cut him years of slack based on Chasing Amy, but I think his talents run to hammy comedy. His looks mean that he's not going to get cast in those sorts of roles as a matter of course, unfortunately.

But: The rest of the cast was really marvelous. I've never seen Alias, so Jennifer Garner was new to me-- and was a revelation. Collin Farrell is always excellent, and made Bullseye more chilling than I've ever found him in the comics. (He makes a point of saying "I want a bloody costume!" in the movie, but that's mercifully forgotten about-- another of those little lapses John mentioned. The character's costume always mad eit very difficult for me to take him seriously, and it would've gotten in the way of Farrell's expressive face. And Michael Clarke Duncan and Joe Pantoliano were almost always pitch-perfect as Kingpin and Urich.

The movie loosely adapts what is probably the most highly-regarded story arc in the comics' history, written and illustrated by another great, Frank Miller. It admittedly can't always keep track of that plot; but in broad outline it works.

And, frankly, it looks good-- Affleck's jogging notwithstanding. The action sequences are done very well-- maybe a little too much Crouching Tiger wirework, but just barely. And the city looks like Daredevil's New York should.

I ended up watching most of the movie a second time before returning it to Blockbuster. (I skipped that endless introduction.) I found the whole thing fun. Flawed, but fun.

To John and others in his boat, I say: imagine if the last two comics-movies you'd seen hadn't been Spider-Man and X2. Imagine if they had been Batman & Robin and Superman IV, or The Punisher and Teenage Mutant Ninja Turtles (the comic of which was originally a black-and-white spoof of Miller's Daredevil, not the cartoony thing it became later). Does that change how this looks?

Could I imagine a better Daredevil movie? Sure. But I can more easily imagine no Miller-Daredevil movie at all ever getting made, or a Batman & Robin kind of catastrophe. (Even an LXG kind of stupid waste.) This was lots better than that, and I'll end up watching it again.

 
[Eugene Volokh, 8/12/2003 10:01:26 AM]
Davis and Democracy: Jacob Sullum writes:

Gray Davis calls the California recall election "an insult to the 8 million people who went to the polls last November and decided I should be governor." But according to the official results, Davis got about 3.5 million votes last fall, 47 percent of the 7.3 million votes cast in the governor's race. So Davis is exaggerating the support he had in November by a factor of more than two. And judging from recent polls, many one-time Davis supporters do not consider the recall an insult.

Far from being an affront to democracy, the recall is, if anything, democracy run amuck. But Davis probably would not score many electoral points with that argument.

(Go to the post for the links.)

 
[Eugene Volokh, 8/12/2003 09:51:34 AM]
The missing word: Mickey Kaus asks a great question:

What 7-letter word is missing from this hed? "Schwarzenegger Opposed Immigrant Services"--AP story reprinted in WaPo.

Yes, headlines need to be short, and Schwarzenegger's name doesn't help matters; but wasn't this word, well, a pretty important qualifier? (Note that the headline is the responsibility of the Washington Post, not the AP.)

 
[Eugene Volokh, 8/12/2003 09:16:17 AM]
Is privatization a big part of the military's troubles in Iraq? Phil Carter responds to Paul Krugman. I don't know who's right and who's wrong on this, but it seems like an interesting debate.

 
[Tyler Cowen, 8/12/2003 08:25:32 AM]
Factoid about military privatization "In the first Gulf War, one in 50 US personnel on the ground was a contractor. In the recent war in Iraq, that figure was 1 in 10."

From the 11 August Financial Times. To read more, see P.W.Singer's new book from Cornell University Press. I will leave it to the lawyers amongst us to figure out what this means for the laws of war, not to mention liability issues.

 
[Tyler Cowen, 8/12/2003 07:52:28 AM]
What kind of governor would Arnie be? Slate surveys some magazine articles on this topic, but none are sufficiently conceptual for my tastes.

So what would be special about Arnie as governor? Unlike most politicians, he has a large stock of accumulated fame and goodwill. He is almost certainly a residual claimant, one way or another, on the future value of his films (I don't know what his contracts look like, but think in terms of endorsement income alone, he wants the value of his franchises, such as Terminator, to persist). He has a national audience, not just a state audience.

All of these features suggest that Arnie would make for a very conservative governor, and I mean the word conservative in the literal sense, not the political sense. He holds significant "assets," whose value he does not want to endanger. He does not want to lose the love of the American public. He does not want to lose his future earning power.

Perhaps Dwight Eisenhower is a good parallel. Ike entered office as a military hero, beloved by many Americans. He was basically a consensus President who wanted to make everyone happy. At the time, many conservatives thought he would dismantle the New Deal, but he didn't even try.

Or consider Elvis Presley when he entered the military. He was no wise guy or rebel, but rather was on his best behavior, knowing that his commercial future and fame were on the line, and that he would need to appeal to an older demographic with the passing of time.

Arguably Ronald Reagan was no right-wing radical during his tenure as governor of California. He even boosted state funding for higher education.

Now can Arnie make everybody happy, given that California is facing a massive fiscal crisis? As a social scientist interested in fame and celebrity, I am hoping we get the chance to find out. As a market-oriented economist, I am heartened by Arnie's attachment to Milton Friedman. As a realist, I am skeptical about whether he can build the necessary political coalitions.

Monday, August 11, 2003

 
[David Bernstein, 8/11/2003 09:24:17 PM]
Some readers who have been following the controversy over the UC instructor who allegedly endorsed the Protocols of the Elders of Zion in class may be unaware of this work, its origins as a forgery of the tsar's secret police, and its role in anti-Semitic propaganda. Steve Dunn has the scoop.

 
[Eugene Volokh, 8/11/2003 09:19:31 PM]
Another response from Abbas Kadhim to Susanna Klein's charges: I e-mailed Prof. Kadhim to ask him to respond to this statement of Ms. Klein's:

There was no room for ambiguity in Mr. Kadhim's remarks. I asked him repeatedly if he was certain that he believed the "Protocols" to be a document written by Jews. He assured me that he did. Hoping desperately that there must be some mistake, I phrased the question differently and asked him if he didn't believe it to be a forgery. He laughed and said, "Who would have forged it, Muslims?" I tried to explain that it was proven to have been forged by the Tsarist sercet police, but he cut me off and changed the topic."

Prof. Kadhim responded as follows:

There is no room for misunderstanding. She made up the whole story and when it was discredited, she wrote another article accusing me of fighting for Saddam against U.S. soldiers in 1991. This is an orchestrated campaign of hate and intimidation against me. I have nothing to hide, and my record is spotless. Ms. Klein and her supporters are radical lunatics. Their dogs will not hunt!

I stress again that I do not know whose summary of the facts is accurate here. It would be good if we heard more from the other students in the class, who presumably witnessed the exchange; naturally, all witnesses may have their own biases, too, but it would still be good if we heard more statements than just those from the two principal actors. So far, the only thing I've seen from the other students is this summary in the Daily Cal article:

Other students in Kadhim's Arabic language class disputed Klein's allegations, saying he was simply presenting a viewpoint held by many Iraqis. . . .

Several other students in the class also submitted a complaint, about Klein, however, claiming she was disruptive and that she also accused classmates of being anti-Semitic on several occasions.

This, though, is pretty general; it would be helpful if there were some detailed statements in the students' own words that focused specifically on the charges that Ms. Klein has made.

 
[David Bernstein, 8/11/2003 06:25:32 PM]
Write-ins and the California Election: Apparently, write-ins are allowed in the California recall election. If so, it wouldn't surprise me if a big-name Democrat jumps into the race at the last minute as a write-in if it looks like Davis is going down and Arnold S. is going to win with a plurality of <25 percent. It wouldn't be the first time recently the Dems tried to save an important race by bringing in a big name late in the game.

 
[Eugene Volokh, 8/11/2003 05:16:01 PM]
Ethnic/religious profiling in airport searches: Federal district court judge Joan Lefkow has rejected the Illinois National Guard Adjutant General's motion to dismiss Samar Kaukab's lawsuit, which claimed that Ms. Kaukab was singled out for a body search and otherwise mistreated at O'Hare airport because she looked South Asian and wore a hijab. Kaukab v. Harris (N.D. Ill. Aug. 7, 2003). Naturally, she would still have to prove that she was in fact discriminated against; but the rejection of the motion to dismiss makes it more likely that the case will go to trial, and the judge suggested that if the facts were as Kaukab said they were, she'd have a substantial case.

     The opinion is pretty readable and detailed; go here and then go down a page. Interestingly, a LEXIS search reveals no recent articles mentioning the name Kaukab, so the case seems to have gotten no media attention.

 
[Eugene Volokh, 8/11/2003 02:21:44 PM]
San Antonio radio this evening: I should be on KTSA-AM, 550, San Antonio this evening at 7:35 Central, talking about Web cameras in classrooms.

 
[Eugene Volokh, 8/11/2003 01:39:50 PM]
We don't call it that around here: Here's a puzzle for you: In English, the names of most European countries are at least related to their names in the native tongue, e.g., France/France, Ireland/Eire, Russia/Rossiya. Which European countries have English names that have virtually nothing to do with their local names? (I define Europe, doubtless controversially, to include those Eurasian countries, and neighboring island countries, listed on this map, not including Greenland; if you know of a more authoritative definition, please e-mail it, together with its URL, to volokh at law.ucla.edu.) The answer is here.

 
[Eugene Volokh, 8/11/2003 11:23:02 AM]
Obscenity: I'm scheduled to be on The O'Reilly Factor today opposing the federal government's most recent obscenity prosecutions.

UPDATE: They just cancelled -- that's the news biz for you.

 
[Eugene Volokh, 8/11/2003 09:49:48 AM]
More "inconceivable": John Holbo has an interesting response to my discussion of the multiple meanings of traitor; and I agree with him that "traitor," even when used to mean "someone who violates what I think is an obligation of loyalty," often contains an allusion to the crime of treason, and is generally intended to suggest that the person's misconduct is somehow analogous to the misconduct of those who commit treason. That's actually one reason why I dislike people's using the term too broadly: When the analogy gets strained enough (for instance, when people are accused of treason based just on their good faith disagreement with the government about which course of action is more moral or more effective), such an accusation becomes unfair precisely because the subject's behavior is so morally far from treason.

     But as to the first sentence below, I just don't think that the word (whether "traitor" or "refers") means what Mr. Holbo thinks it means:

It seems to me that the word 'traitor' only ever (apart from very extraordinary circumstances) refers to those guilty of the crime of treason. Sometimes (most of the time) speakers intentionally apply the term to those obviously innocent of that crime, by way of making claims that are not obviously false. But speaker meaning and word meaning (sentence meaning) are distinct and readily distinguishable. If Jones calls me a 'traitor', because I didn't chip in for drinks, he means I have failed to fulfill a moral obligation. The word maintains its semantic valence, above the beery fray. He has said one thing, but obviously meant something else by it.

How can it possibly be the case that "the word 'traitor' only ever (apart from very extraordinary circumstances) refers to those guilty of the crime of treason"? One good place to see what a word tends to "refer[] to" is the dictionary; my New Shorter Oxford tells me that traitor means "A person who betrays (the trust of) another, a cause, etc.; a disloyal or treacherous person; spec. a person who commits or is judged to be guilty of treason against his or her sovereign or country." The two examples, from O. Henry and D.H. Lawrence, both refer to general betrayal, not the crime of treason. Merriam-Webster Online likewise lists "1 : one who betrays another's trust or is false to an obligation or duty / 2 : one who commits treason." The American Heritage Dictionary likewise says "One who betrays one's country, a cause, or a trust, especially one who commits treason." So even if you set aside the usages that are so figurative that they aren't listed in the dictionary, we have strong evidence that the word "traitor" very often refers to people who aren't guilty of the crime of treason; and our own experience should, I think, confirm that.

     So whatever one thinks should be the case, and whatever one thinks of the ethical or rhetorical propriety of people using "traitor" promiscuously, I just can't see how one can make the descriptive argument that "the word 'traitor' only ever (apart from very extraordinary circumstances) refers to those guilty of the crime of treason." That argument just doesn't fit the common meaning of the term "traitor" -- or of the word "refers."

     Thanks to Matthew Yglesias for the pointer.

 
[Eugene Volokh, 8/11/2003 09:01:45 AM]
Presenting the facts: A couple of days ago, I quoted a letter from a student (Susanna Klein) who accused a UC Berkeley instructor (Abbas Kadhim) of saying that the Protocols of the Elders of Zion was authentic, and then included an e-mail from the instructor defending himself. (I had gotten in touch with the instructor myself, and the e-mail was a response to my inquiry.) The instructor wrote, in relevant part

The reference to the Protocols was not part of the core of the class material. It came about as a result of an un-invited monologue by Ms. Klein, as I was explaining the social of the "Iraqi oaths" for students. I was merely telling the students about the Iraqi conventional wisdom, as opposed to the other side.

As you know, this issue of authenticity and the identity of the author -- or authors -- of the Protocols has not been settled between the Middle Eastern disputants (that is to say, no one said to the other, "you are right.").

The noise between Egypt and Israel about the TV show (A Knight without a Horse) recently is only one good example. The show presented the conventional wisdom which I mentioned. It was not endorsed by the government of Egypt, but by many Arab intellectuals and the masses.

I am not in the business of endorsing one view over the other, at least in that debate that happened in the class.

Being misunderstood is a frequent risk all of us, teachers, have to run. It is interesting however, that in a small room, only one student heard one thing and all other students heard another!!!

and I followed the two quoted items with just these lines:

Who's right and who's wrong about what was said, and how it was meant and understood by most students? I don't know, but I thought I'd present both sides' statements.

     Roger Simon writes that he is "appalled at [my] behavior," presumably because I didn't condemn Prof. Kadhim. Charles Johnson likewise writes:

I'm very disappointed with Professor Volokh, whose opinions are normally well-reasoned, for letting the dishonesty and antisemitism of Abbas Kadhim simply stand without judgment; it verges on tacit agreement that the legitimacy of the Protocols of the Elders of Zion may be open to discussion.

I have a couple of thoughts in response:

     1. As best I can tell, Mr. Simon and Mr. Johnson (and some other people who likewise responded to me) think that Prof. Kadhim's response is patently unsatisfactory. In fact, it seems to me that they think his response actually demonstrates that he behaved badly, and continues to be unrepentant about his bad behavior. I assume they think that many other objective readers would share the same view.

     If I'm correct on this, then it follows that I have presented, using Prof. Kadhim's own words, something that strongly supports Messrs. Simon's and Johnson's side of the debate, and something that (in their view) strongly discredits Prof. Kadhim (much more strongly than any mere expression of opinion on my part might have done). Presumably Messrs. Simon and Johnson would approve of this result. Why then should they be "appalled" and "disappointed" about that? Perhaps they should instead be pleased at the effect of my post.

     2. I take it, though, that they think that I had some obligation to express my opinion on this matter. Prof. Kadhim's statement, they presumably felt, was self-indicting; I should have concluded that this was so; and I should have said so.

     But why would that have made sense? If Prof. Kadhim's self-defense is so weak, then it seems likely that readers would be more likely to reject Prof. Kadhim's arguments if they just came to their own conclusions than if I explicitly made that argument. That's often (though not always) true: If you present some fairly damning facts to people, and then let them draw their own conclusions, they'll feel pretty strongly about the result (even if the conclusion required an inference about credibility or likely human behavior). But if you present the facts and then give your own opinion condemning one side, many readers -- whether because they're contrarian, fair-minded, in a combative mood, or what have you -- will come to that side's defense. Rather than asking "Who do I think is more likely correct?," they'd ask "Has Volokh proven his case as firmly as he claims?" And even if they're persuaded by me, they may be less persuaded than if they had come to the conclusion themselves, without explicit prompting. Why turn an effective descriptive account into a potentially less effective opinion piece?

     Now I realize that things aren't always this way. Sometimes, especially when the question is logically complex, when the commentator is seen as having considerable technical expertise than bears on it, and when the commentator has a great argument that goes considerably beyond the facts, it's helpful for the commentator to present the argument. But when it's a "he said / she said," and the questions are whose story seems most plausible and which side is in the wrong even if you assume that its story is factually accurate, excessive editorializing by the party presenting the fact can make the case weaker rather than stronger. (Incidentally, if you think that Prof. Kadhim's position is persuasive, and you don't think that his response was self-indicting, then it seems to me that you should likewise approve of my decision to just post Ms. Klein's claim and Prof. Kadhim's response.)

     3. This suggests to me a broader point: When people on one side of a debate start insisting that all factual accounts of the debate include the presenter's "judgment," and that anything else "verges on tacit agreement," they are actually hurting their own side. I can understand the emotional appeal behind such an insistence -- but I think that it's highly counterproductive. Purely descriptive reporting can be quite valuable, and often quite effective.

     Demanding that such reporting always be coupled with editorializing is therefore a strategic mistake (and potentially quite a serious one), both (a) for the reasons I mentioned above and (b) because it risks alienating readers who don't like this sort of "if you're not explicitly with us in every account you write, you're against us" approach. It's important for people in a movement to feel passionately about it. But it's harmful when that passion prevents people from dispassionately evaluating what works and what doesn't, and from using a dispassionate presentation format when that language seems like it might be most effective.

     Of course, I realize that my theorizing here might be erroneous; perhaps such a dispassionate presentation format is not as effective as I suggest. Still, my tentative sense is that my theory is indeed correct -- and that often (including in this instance), simply presenting what was said and letting readers decide is the most useful approach.

 
[David Bernstein, 8/11/2003 07:36:15 AM]
Berkeley Update: Susanna Klein responds to the Daily Cal article on the Protocols incident, and indirectly to Kadhim's response to Eugene:

In the 8-8-03 article, Mr. Kadhim never actually denies believing that the "Protocols" is a true document. Regarding his claims that he presented it the context of Iraqi conventional wisdom, he is not telling the truth. I do not recall the word "Iraq" being mentioned even once in the entire discussion. If I am as "brilliant" as my peers describe in the Daily Californian, surely I am able to distinguish between a discussion on Iraqi culture and worldview, and an instructor presenting his personal views to the class as truth. There was no room for ambiguity in Mr. Kadhim's remarks. I asked him repeatedly if he was certain that he believed the "Protocols" to be a document written by Jews. He assured me that he did. Hoping desperately that there must be some mistake, I phrased the question differently and asked him if he didn't believe it to be a forgery. He laughed and said, "Who would have forged it, Muslims?" I tried to explain that it was proven to have been forged by the Tsarist sercet police, but he cut me off and changed the topic.

Again, if Klein's version of the facts is correct, (1) Kadhim seems to have wasted class time discussing his irrelevant personal views in an Arabic language class; and (2) to the extent mentioning the Protocols was somehow relevant to a discussion of Arabic culture, Kadhim proved himself incompetent in not knowing that the Protocols is a proven forgery. On either grounds, the university could potentially discipline him, though there are some murky First Amendment issues even in these contexts.

Meanwhile, I've been taking heat in the blogosphere by overwrought pro-Israel activists, who want me to simply assume Klein's version of the facts is correct, condemn Kadhim, call for him to be fired, and ignore the First Amedment issues involved. One gem, by the editor of a website called Dafka, is going to get a well-deserved Fisking:

Note Bernstein's use of the phrase "campus Zionists".

I wrote that, assuming Kadhim's version of the facts is true, "Kadhim can't be disciplined by the university simply because he chose not to condemn an anti-Semitic myth that came up in class; and campus Zionists certainly wouldn't want to open up that can of worms, lest pro-Israel professors start facing inquisitions initiated by Arab and leftist students, to be decided by typical campus kangaroo courts." In many campus circles, merely being Zionist or pro-Israel is considered racist, or anti-Arab, so if instructors can be fired for not specifically clarifying their lack of personal prejudice every time a controversial subject comes up, you can guess who the eventual targets will be, as they sometimes already are in Europe.

The Arabs in their media and on campus use "Zionist" interchangeably for Jew. All practicing Jews say "Next year in Jerusalem" at Passover. Many Stars of David say "Zion" in Hebrew on them. Judaism has been inextricably linked to the Holy Land for millenia.

These are all non-sequitors. I know that anti-Semites sometimes use the term "Zionists" to mean Jews. But Zionists, or pro-Israel activists if one prefers that term, are the ones at long-term risk from censorship, not Jews in general (nor exclusively Jews, given that some Zionists are not Jewish). I'm not going to stop using the phrase Zionist because anti-Semites abuse it, lest the anti-Semites succeed in making it a dirty word.

His use of a euphemism to refer to Jews as Zionists shows his true colors. Though his surname is Jewish, he considers himself an intellectual elitest above it all. He's not a "Zionist". It's those "Zionists" who are out to get Kadhim.

My true colors are as follows: I think the Jews of Israel would be better off living in, say, New Jersey, which technically makes me non-Zionist, but I'm a strong supporter of Israel, which makes me a Zionist in the sense the word is normally used in the U.S. A modicum of research by the author would have made my strong Zionist leanings clear, as they are obvious from my posts here and on the now defunct Bernsteinblog. And I wasn't using Zionist as a euphemism for Jews, when I said Zionists I meant Zionists, for reasons discussed in my previous paragraph.

He reminds me of an intellectual who would tell the Nazis he shouldn't be thrown in the oven with the rest because he's special from all those other Jews. He's wiser and has a fancy law degree. But into the oven he would still go as a Jew.

Way to play the Holocaust card! Yes, everyone who doesn't think exactly the same way as you is a self-hating Jew.

To him law is opinion in a sophistic discourse. who cares about the real world? His article was gobledygook and sophistry not related to the events that really occured nor in compliance with the situation and academic abuse that occured that day.

I wasn't there that day, and neither was the Dafka editor, so the only evidence we have of what occurred is the conflicting accounts of Kadhim and Klein. Since I know neither of these people, nor about their reputations for truthfulness, there is no reason for me to simply assume Klein is telling the truth. [edit: anyone who has read years' worth of student evaluation forms will likely be aware that individual students sometimes misinterpret an innocent comment as sinister, and sometimes even manage to remember hearing something that was never said at all] As I've noted, even if Kadhim is telling the truth, he hardly shows himself to be a moral hero for at best remaining publicly agnostic about the legitimacy of the Protocols.

Such thinking could only thrive in an Ivory Tower built on sand. Kadhim should be sacked. And Bernstein should go back to school for a lesson in the reality of the world we live in. It's not a free speech issue. It's an issue of teaching the next generation to hate the conspiratorial Jews. Allow this to continue on our campuses and even "nonZionists" like Bernsten may find out more of us are "Zionists" than we think.

Kadhim teaches at a public university. He can be condemned from now to doomsday, but he can't be fired (as Klein requested from the Berkeley administration) if firing him would violate the First Amendment.

I recognize that these are troubling times for friends of Israel, and for Jews. But suspending our rational faculties isn't going to help matters.

 
[Eugene Volokh, 8/11/2003 07:36:10 AM]
Australian government-funded agency urges older women to become lesbians: From The Sydney Herald Sun, and it doesn't seem to be a joke:

Australia's leading relationship counselling body is urging lonely older single women to become lesbians.

Relationships Australia spokesman Jack Carney said men's shorter life spans, and their pursuit of much younger women, meant women in their twilight years were often forced to turn to other women for love and companionship.

Mr Carney said the government-funded support group encouraged older women to explore lesbian relationships, which were seen as more nurturing and emotionally supportive. . . .

"As they get over 60, opportunities to get a man diminish substantially. Men marry younger women and they die about eight years younger, so there is a real male shortage," Mr Carney said.

"And as women get even older it gets much worse, so we ask them to entertain the idea of lesbian relationships." . . .

Myra Flynn, from support group Older Dykes, said some older women "defaulted" to lesbian relationships because of a lack of men.

Others had struck up relationships with men in the 1950s and 60s only because they could not be open about their sexuality, or they wanted a child.

"It's becoming more common and I've noticed a growing trend in bisexuality," she said. . . .

Founded in 1948 as the Marriage Guidance Council, Relationships Australia is a non-profit counselling organisation funded by both the Federal and State Governments.

In response to the pensioner stampede to the divorce courts, Relationships Australia has launched two courses on how to start again in relationships in old age.

(Thanks to The Canine Ladies for the pointer.)

 
[Tyler Cowen, 8/11/2003 06:01:26 AM]
The West is even better than you think ...according to a forthcoming Charles Murray book. Murray measures Western achievement and concludes that Western dominance through world history is simply stunning. As he presents a summary of his basic argument (see the link), I think he overstates his case for music and the arts. Non-Western arts and musics were often highly perishable before contact with the West (no musical notation, for instance, no museums for preserving fragile artworks, and often very humid climates). Gamelan music was already a wonder when the West discovered it, who knows what the Balinese were up to, musically, in 1350? Or just think of how good Pygmy music has been in the twentieth century. So even if we don't find older non-Western achievements written up in the history books, we should not discount their power and import.

 
[Jacob Levy, 8/11/2003 05:53:09 AM]
Bitter harvest: It's hard to devote as much attention, as constantly, as is warranted to the issue of rich-country agricultural subsidies and protectionism. On any decent moral accounting, this is literally one of the most important public policy issues in the world. The policies destroy a fair amount of wealth in the rich countries, and destroy an appalling amount of wealth and potential wealth in the developing world.

When we talk about whether "globalization" and "global free trade" have helped or hurt the poorest people in the world, we're operating on a false premise-- that these phenomena have reached the products these people produce. Textiles, generally the first category of manufacturing any economy can productively reach, remain heavily protected in the industrial world, and have been specifically exempted from free-trade agreements and tariff-reduction deadlines up until now. But the situation is even worse with agriculture, where the rich-country policies not only eliminate the possibility of any export-driven growth by the poor but actually distort poor countries' internal agricultural markets. In other words, the subsidies and protections both discourage the most likely road to alleviating poverty in the future and encourage poverty in the present.

The EU and Japan are, as is well-known, worse offenders than the United States on this front, and are more resistant to making any changes. (It is somewhat less well-known that Australia, an almost-unsubsidized agricultural exporter, is decisively on the side of the poor countries; the bloc of states seeking agricultural free trade in the Doha round of negotiations is known as the "Cairns group," after the Australian city where they first met to plan strategy.) But the U.S. is plenty bad enough, and of course has gotten worse under the Bush administration's farm bill.

As I said, it's difficult to write about this often-- because it doesn't change, there's little new news to report, there's little by way of entertaining politics around it, and there's little political possibility of change anytime soon. The Doha round might fail entirely; and I don't see any sign that, even if there is an agreement, it will go anywhere near as far as is necessary. But the NYT is admirably trying. Its series of "Harvesting Poverty" editorials

is focusing on the damaging impact that American, European and Japanese agricultural subsidies and trade barriers have on farmers in developing nations. The project is being led by editorial writer Andr�s Martinez, who is travelling to Asia, Africa, Europe and South America this summer to research the issue.

If you haven't been reading them, you should-- they're well-done, and do a good job of explaining the mechanics of how the subsidies hurt both rich-country consumers and poor-country producers. And Martinez' globetrotting provides them with enough detail to make the editorials seem new, not like restatements of basic policy truths that have been known for years. UPDATE: In response to this post, let me clarify. Textiles haven't been exempted from all free trade agreements, nor are they always excluded entirely. (For that matter, there's been occasional small progress on agricultural products.) But when they're included, the tariff-reduction schedules have often been stretched out much longer than those for other manufactured goods (this was true of the last GATT accord). NAFTA went farther faster in a number of ways than GATT or many other agreements. But just because the U.S. has opened its doors to some Mexican textiles does not mean that it has opened them to still-lower-cost producers in Africa or Asia.

See also Ron Bailey on the same topic.

Sunday, August 10, 2003

 
[David Bernstein, 8/10/2003 05:06:40 PM]
God's Chosen People? A comment on the Little Green Footballs blog provides an occasion for me to tackle a sensitive subject, one that seems to arise in conversation and on the Net all the time: isn't it racist that Jews believe themselves to be "God's Chosen People?" My understanding is as follows:

(1) It can't be racist because Jews aren't a race, and don't think of themselves as a race; anyone can become a Jew through conversion, which is not an especially difficult process [Edit: except for the circumcision part at the end for uncircumcised males; Reform rabbis, I think, are satisfied with a symbolic circumcision involving one drop of blood], and Jews come from all racial and many diverse ethnic groups. So one can ask about religious chauvinism, but not racism.

(2) The origins of the "God's Chosen People" idea seems to have been at a time when the Hebrews were still not entirely monotheistic, which they weren't until the 6th century BCE, the era when Ezra and Nehemia brought the monotheistic views of the exiled Jews of Babylonia to the Land of Israel, and enforced them with the authority of the King's law ("cast out your Gentile wives") against a largely recalcitrant public. Before this, being Jehovah's chosen people didn't mean that the Phillistines, etc., weren't chosen by their own gods, and many Hebrews, as is amply documented in the Prophets, hedged their bets by sacrificing to Ba'al, Ashteroth, and other pagan gods.

(3) Okay, but how does that relate to today? It relates because Judaism, unlike Christianity and Islam, has never been a universalistic religion (though it was moving in that direction in the early Roman period, until several disastrous revolts interceded), but, because of its tribal and non-monotheistic origins, is a religion meant for a specific group of people either born into the religion, or who voluntarily adopt it by becoming part of the group (you can't become a member of the Jewish faith without becoming a member of the Jewish people, though old-line Reform Jews may beg to differ). Christians, raised in a universalitic religion, often don't understand that Jewish theology has always been different than traditional Christian theology. Christianity traditionally taught (and many denominations still do, though Catholics and some others make exceptions for Jews and their original covenant) that only Christians can go to heaven. Judaism's view of heaven--including whether it even exists--is murky, but it's clear that even for the most Orthodox Jews, Gentiles can be in God's good graces provided that they obey the Seven Laws of Noah (no idolatry, blasphemy, murder, theft, illicit sex, eating from living animals; courts of law must be established--rules that Jews are supposed to encourage, though it's bit a bit tough over the last two millenia, being at the mercy of hostile nations and all). So while I've experienced in conversation the fact that Christians often think Jews are chauvinistic or snobby in being a community that doesn't seek converts, it's not a question of exclusivity; rather, theologically there is no particular reason to seek converts. Indeed, at least for the Orthodox, encouraging Christians to become Jews wouldn't be a great deal for the Christians. Right now, Christians only need obey seven basic rules of morality to be in God's good graces, but if they became Jews they would need to obey 613 commandments that regulate every aspect of their lives.

(4) That's all theology, and history, but what about in practical terms today? Do Jews feel superior because "chosen?" First, most Jews today aren't especially religious, so the choseness concept is somewhat irrelevant. But even among the Orthodox, it's not what you might think. I went to Orthodox Jewish schools for much of my pre-college education, and, while I'm sure one can find occasional chauvinistic passages in Jewish texts (after all, there are 3,000 years texts), we were never taught that Jews were superior to anyone else. Choseness was an issue of Jews being obligated to obey commandments that Gentiles were not obligated to obey, as required by the covenant of Abraham and the covenant at Sinai with God. These covenants guarantee Jewish survival, promise the Land of Israel, and a large population (as numerous as the stars in the sky, etc.), but seem otherwise to come mostly with obligations, not benefits. And when millions of your people were slaughtered in the last century (not only by the Nazis, but, as I recall, a couple hundred thousand by the White Russians in the revolutionary period), and hundreds of thousands more in prior centuries of exile, it becomes quite difficult to associate the Covenant of Abraham with God's special love. Moreover, if one reads the traditional Jewish prayer book, it's very clear that the underlying conception of the God of Israel in Judaism is not like the touchy-feely Jesus, God of Love, of much of American Christianity (at least as I perceive it as an outsider), but is much more akin to a crazed monarch who must alternatively be showered with praise and humbly reminded of His promises to Abraham to prevent Him from calling down his wrath upon the Jews. So, as far as I can tell, being the "chosen" simply means that Jews are in a particular contractual relationship with God that our ancestors made, one that is not always to our advantage, and that is without prejudice to the status of Gentiles before God.

 
[David Bernstein, 8/10/2003 03:53:53 PM]
Protocols Protocol: Roger Simon and Charles Johnson are unfairly criticizing Eugene for reporting instructor Abbas Kadhim's explanation of his discussion of The Protocols of the Elders of Zion (an anti-Semitic forgery about a Jewish plot to take over the world) in an Iraqi Arabic language class at UC Berkeley. Student Susanna Klein claims that Kadhim "announced before the entire class during a discussion on Zionism that he believes that the infamous text The Protocols of the Elders of Zion is not an anti-Semitic forgery but was in fact written by Jews."

Kadhim, in turn, claims in an email to Eugene that his reference to the Protocols "came about as a result of an un-invited monologue by Ms. Klein, as I was explaining the social [role?] of the 'Iraqi oaths' for students. I was merely telling the students about the Iraqi conventional wisdom, as opposed to the other side.... As you know, this issue of authenticity and the identity of the author -- or authors -- of the Protocols has not been settled between the Middle Eastern disputants (that is to say, no one said to the other, 'you are right.').... I am not in the business of endorsing one view over the other, at least in that debate that happened in the class."

So, at best, Kadhim refused to take a position when the issue arose in class regarding whether or not the The Protocols is an anti-Semitic forgery, which is the moral and logical equivalent of discussing Holocaust denial in class while refusing to state (in class, or even in a subsequent email to be published on a blog) whether the Holocaust occurred (another fact that is disputed in the Arab world, but is certainly not subject to legitimate debate). For that, Klein--and anyone else for that matter--can take Kadhim to task, as indifference and neutrality when discussing blatant anti-Semitic lies deserves condemnation, even (actually, especially) if the particular form of anti-Semitism involved in common in the Arab world, and may very well be believed by a significant fraction of students in Kadhim's class.

But Klein did not simply condemn Kadhim, or ask him to clarify his views, or to apologize. Rather, she wrote to the university administration asking that "the University of California investigate the matter forthwith and dismiss Mr. Kadhim from its staff." Given that request, it's important to know exactly what Kadhim said, and it what context it arose.

Without getting into a lengthy discussion of the relevant First Amendment issues (which you can find in my forthcoming You Can't Say That!, in the chapter on free speech and antidiscrimination rules on campus), it matters whether Kadhim gratuitously raised the issue of the authorship of the Protocols, or whether the issue was germane to class. It also matters whether Kadhim stated that the Protocols was written by Jews, or whether he simply stated that many people in Iraq and the Arab world believe that it was. The latter is a true statement, and the former a blatantly false one, one that would cast doubt on Kadhim's understanding of anti-Semitism in modern Arab culture, and thus on his competence as a teacher of Arab culture. (Kadhim, as Johnson points out, called his competence into question in a non-classroom context when he claimed in his email to Eugene that the Egyptian government did not endorse the screening of a mini-series based on the Protocols on state-controlled t.v.)

Kadhim can't be disciplined by the university simply because he chose not to condemn an anti-Semitic myth that came up in class; and campus Zionists certainly wouldn't want to open up that can of worms, lest pro-Israel professors start facing inquisitions initiated by Arab and leftist students, to be decided by typical campus kangaroo courts. Rather, to make a case for firing or disciplining Kadhim, one would have to show that he is either (1) using an Arabic language class as a forum for promoting his own anti-Semitic views, thereby violating his contractual obligation to use Arabic class time to teach Arabic language and culture; or (2) is endorsing blatantly false, albeit relevant, understandings of history, thereby demonstrating his incompetence.

It's still not clear to me from Kadhim's email why he believes his discussion of the Protocols was relevant to Iraqi Arabic language class. I don't know what "Iraqi oaths" are, or why Arab views regarding the authenticity of the Protocols are relevant to them, or to Klein's alleged "monologue." But if raising the Protocols was relevant, and if he did not endorse the view that the Protocols was written by Jews, then there is no grounds for disciplining him (absent some explicit university rule banning mention of the Protocols). On the other hand, if Klein's version of the facts is correct, there may be grounds (this is a notably murky area of First Amendment law) for disciplining Kadhim (for reasons (1) or (2) stated above).

Update: Shame on the Daily Cal for implying that the question of whether the Protocols is an anti-Semitic forgery is the subject of reasonable historical dispute ("many historians believe...").

 
[Tyler Cowen, 8/10/2003 12:28:51 AM]
Should economists think that Kobe Bryant is innocent? Don't we teach our students, first and foremost, that incentives matter? Didn't Kobe have huge and obvious incentives not to do it? Wouldn't an attention-seeker victim have some incentive to lie and stretch the story? Even if, heaven forbid, a guy had rape as his goal, rather than sex, wouldn't an economic model predict he would pick a different state and county? Yet I have asked a few economists, market-oriented economists, the kind who believe in the power of incentives, and they all think Kobe is guilty as charged (admittedly my sample is not huge).

Shouldn't these people turn in their doctorates and start reading Freud?

Some economists argue that economic laws apply to averages and aggregates, in a market setting, and not necessarily to individuals. Nobel Laureate Vernon Smith has done much work in support of this view. People can be crazy, but the overall market outcome can still be orderly. In a setting of "thick markets," simple buying and selling lead to smoothly-functioning institutions, even when people do not always understand what they are doing in a global sense. Order results even when people have intransitive preferences in a lone-person setting. There is experimental evidence for this view. This argument, however, would not support the traditional law and economics view of deterrence, which does not involve a context of thick markets. So maybe we can save economic science, but law and economics will take a big hit.

Gary Becker wrote a 1962 article ("Irrational Behavior and Economic Theory," Journal of Political Economy), which argued that even irrational behavior would lead to downward sloping demand curves over time. There are several versions of this argument, but think of it in these terms. Some people may buy more of an item when its price goes up, rather than buying less as economic models would predict. But over time those people will lose money and play an increasing small role in markets. You might imagine a law and economics analogy to this point. Some people might be irrational and stupidly commit more crimes when the penalties get stiffer. Yet they end up in jail for long periods of time, and do not influence the outside world so much.

Let us say this argument is correct (though it requires numerous assumptions). If we are in the short run, before the sorting and sifting kicks in, the argument has no bite. If we are in the long run, then we must expect the irrational people to already be in jail, on average. Since Kobe wasn't already in jail, the economist should hold a presumption of rationality on his part. Which brings us back to the initial dilemma. (By the way, Alan Nelson wrote a good philosophy of science piece called "Average Explanations.")

It is not obvious to me that innocence is the correct conclusion, so I am stuck on this one too. As time passes, I move further away from the view that people are rational in the economic sense. Rabbi Shmuley Boteach offers a theological reading of the event, drawing upon biblical ideas of sin and insatiability, which in fact may be more to the point. Whether Kobe is innocent of rape or not, he has admitted committing adultery.

By the way, if you think Kobe is guilty, you should be more worried about nuclear proliferation.