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Saturday, October 18, 2003


Short Memories: Andrew Sullivan has some nice prewar quotes from the media criticizing the administration for offering multiple rationales for the war. Then there's this from a NYT editorial on February 27th:

President Bush sketched an expansive vision last night of what he expects to accomplish by a war in Iraq. Instead of focusing on eliminating weapons of mass destruction, or reducing the threat of terror to the United States, Mr. Bush talked about establishing a 'free and peaceful Iraq' that would serve as a 'dramatic and inspiring example' to the entire Arab and Muslim world, provide a stabilizing influence in the Middle East and even help end the Arab-Israeli conflict. The idea of turning Iraq into a model democracy in the Arab world is one some members of the administration have been discussing for a long time.
There is more here from Maureen Dowd & E.J. Dionne.


ESPN dismissal of Gregg Easterbrook: If it's true that they dismissed him because of his Kill Bill / Jewish movie executives column, that's a shame, and a serious error on their part.

     I though Easterbrook's comments were unsound and quite unpersuasive, but I don't think they were anti-Semitic. He wasn't saying Jewish movie executives did anything worse than non-Jewish executives did, or more broadly that Jews were worse than non-Jews. His theory if anything seemed to be that Jewish experience should lead Jews to hold themselves to a higher standard than non-Jews. I don't buy this theory, whether it's put forth by Jews or others, and I think it can be unfairly constraining on Jews; but Easterbrook's espousal of this theory did not suggest any real hatred, hostility, or bigotry, only moral error.

     Yes, the reference to "worship money above all else" may lead readers to think that he's repeating the allegation that Jews generally are too greedy, and I think the use of this phrase was a mistake on many levels. But Easterbrook pointed out that plenty of Christian (and other) movie executives do the same, in a context that suggests his allegations of money-worship are aimed at Hollywood (also a common target of such allegations), not at Jews. Between this, and his apology -- which, while not correcting what I see as his substantive error, makes clear that he had no anti-Semitic intentions -- and the lack of any indication from his past that suggests his apology was insincere, it seems to me that this is a minor screw-up at most.

     Given this, the ESPN firing (if it was indeed prompted by Easterbrook's post) strikes me as a massive overreaction. ESPN has every legal right to do what it did. But readers have every right to complain to ESPN about its actions, for instance via this page.


No spoilers in this email: I've been reading the new Coetzee novel Elizabeth Costello. You probably know Coetzee just won the Nobel Prize in literature.

You will either love or hate this book. The basic set-up concerns eight lectures, all at different points in time, delivered by a successful prize-winning novelist, of course we are reminded of Coetzee himself, even though the protagonist is a female. The key questions concern what is a tale, what is the purpose of writing, where do stories come from, and how does art relate to religion. The end does something very daring, something you might not expect from Coetzee, and takes his writing into a more philosophical genre. And if you know his ouevre, when reading the book, you will think some of it is composed of pieces you have seen before from him. But this is on purpose, don't let it put you off, how it fits in will become apparent as you read.

I find the book sitting very well with me, definitely check it out if you have any interest in Coetzee at all. But if you don't know him already, start with Waiting for the Barbarians or Disgrace.


Freedom of choice and consistency: Here is a stimulating opinion piece from Steve Chapman. Consider his opening sally:

"Feminists champion a woman's right to choose. They have always taken the position that the right to privacy includes the right to decide what happens to their own bodies. They think such a personal decision should be made by individual women and their physicians, free from meddling politicians.
As Planned Parenthood Federation of America President Gloria Feldt puts it, "We stand for the principle that women — in consultation with their families and their physicians — should make their own reproductive and health decisions. Not politicians and not the government."
But this week, they changed their minds.
Not about abortion. On that intimate issue of women's physical autonomy, they still believe the government should get out and stay out. But when it comes to breast implants, they think women can't be trusted to decide for themselves. On the former question, they sound like hard-core libertarians. On the latter, they are models of intrusive paternalism."

Worth a read.


Ancient and Modern Constutionalism: My coconspirator Jacob Levy's paper on this subject is praised by Larry Solum (Legal Theory Blog).


Damn Yankees? Some readers interpreted my post yesterday, Whew, That Was Close, as a slam at the Yankees. Far from it. It was a slam at baseball. I don't like baseball enough to hate the Yankees. Apart from the fact that it is excruciatingly boring, baseball has the dubious distinction of being the only sport that it's OK for tweedy intellectuals to admit they like. Go Bears (wince)!

Friday, October 17, 2003


Senatorial Lunacy: Add my voice to the blogsphere's chorus against the Senate's vote to saddle Iraq with $10B in debt, make it appear that the US is after Iraq's oil revenues, obstruct our ability to get other nations to make grants rather than loans to Iraq, and make it that much harder to get the Iraqi debt incurred by the Saddam regime forgiven by other nations. Thanks to Instapundit for this link to Senate Lunacy, with a long list of left, right, and libertarian bloggers protesting this awful decision. Glenn repeats the following from one blogger:

That means that a coalition of greens, socialists, liberals, center left Democrats, center right Republicans, little-l libertarians, and conservatives in the blogosphere all think this is a shitty idea. Can we all be wrong?
My favorite was this:

Bush, the dummy, and DeLay, the evil Nazi, making more sense than any of the asshats that voted to saddle a nation that does not even really exist with 10 billion in debt. Jackasses.
Read it and weep.

UPDATE: David Brooks' writes about "The Good, the Bad, the Ugly" in today's New York Times on yesterday's vote.


Yankees lose World Series: So said a New York Post editorial, according to The Smoking Gun. Hard to believe the newspaper let a blooper like that through, but The Smoking Gun isn't known for hoaxes. Thanks to Best of the Web for the pointer.


Gay marriage: USD law professor Michael Rappaport (The Right Coast) criticizes David Frum's anti-gay-marriage op ed in the Wall Street Journal.


Brewing free speech / intellectual property controversy? Check out this (note: relates to sex) and then this. Legal analysis left as an exercise for the reader. Thanks to my former law student Lev Ginsburg for the pointer.


Bernard Williams: Here is Martha Nussbaum on Bernard Williams, a brilliant philosopher, recently deceased, this piece is a beautiful and thoughtful appreciation.

I am traveling for the next week, to a globalization conference in Knoxville (any food recommendations?), and to a Milton Friedman tribute conference, in Dallas, my blogging may be very light for the week.


Legal story: Jesse Walker points me to this item, apparently from a District Attorney in Texas:
I once had a Chief of Police write the train conductor/engineer a ticket for blocking the main drag in town. The fellow refused to sign the ticket so they Chief, in a moment of cerebral flatulence, instantered the recalcitrant train engineer. THEN he called me and ask ......"What do we do with the train?" Law School did not prepare me for such situations.


The Law of 14: Check out Jonathan Rauch's piece on the "freshness test" in Presidential candidates.


More about baseball? Kitchen Cabinet thinks the New York Times shouldn't be so unpatriotic as to cheer for the team opposing New York, and cites Jonah Goldberg to the same effect.

Well, I've never been a fan of patriotism, whether it's about rooting for your home sports team or rooting for your country's army in war, but I guess that's one reason why I would make a lousy fan. My thoroughly unhelpful attitude is that the best team should win and that you know which team is the best by observing who wins. However, I do enjoy the concept of baseball, and I recommend Eight Men Out, Eliot Asinof's account of the Chicago White Sox and the 1919 World Series (later made into a John Sayles movie).


Anti-Semitism and anti-modernity: Thus Blogged Anderson has some further thoughts on the Malaysian Prime Minister's comments.


Art: Reading the cases for today's First Amendment class, I came across the epigraph for NEA v. Finley in my casebook. It's still one of my favorite poem excerpts, so I thought I'd pass it along:
In the Neolithic Age savage warfare did I wage
For food and fame and woolly horses' pelt.
I was singer to my clan in that dim, red Dawn of Man,
And I sang of all we fought and feared and felt . . . .

But a rival of Solutré told the tribe my style was outré --
'Neath a tomahawk, of diorite, he fell.
And I left my views on Art, barbed and tanged, below the heart
Of a mammolithic etcher at Grenelle.

Then I stripped them, scalp from skull, and my hunting-dogs fed full,
And their teeth I threaded neatly on a thong;
And I wiped my mouth and said, "It is well that they are dead,
For I know my work is right and theirs was wrong."

-- Rudyard Kipling, In the Neolithic Age (1895)
(And, no, that's not what Finley was actually about -- my epigraphs are rarely that directly linked to the cases.)


This came from my college roommate this morning: I, along with many fans of Major League Baseball, was saddened yesterday when (shortly after midnight) Major League Baseball and the Players' Association failed to resolve their differences and, for the second time in ten years, were forced to cancel the World Series. I had thought that, after 1994, baseball and its players would understand that such a drastic measure would drive fans away and would be difficult to recover from. Still, the unthinkable has happened again and there will be no World Series this year.

That's my position, and I'm sticking with it.


Whew, that was close: With the losses of the Cubs and Red Sox I can now return to not caring at all about the supposedly intellectual game of baseball. If either, or especially both, had won their pennants, I might actually have watched a World Series.

UPDATE: Geffrey Norman comments on the playoffs here. His concluding line: "Anti-climax doesn't get any bigger than this."


Fascism . . . and Libertarianism: Michael Ledeen has an interesting piece on the much-neglected subject of fascism this morning in NRO, (which he then connects to the terrorists we are currently fighting). Here's a bit:

Most of the fascist leaders who looked to Rome for inspiration were not racists, and did not share the Nazis' vision of a great empire ruled by a single führer. They were intensely nationalistic, and believed that each national unit would develop its own unique form of fascism, which they saw as a "third way" between capitalism and bolshevism, both of which they despised.

They shared a wildly optimistic vision of human potential and a common political style. Above all, fascism foresaw a transformation of man from a supine servant of modern bourgeois society to a creative warrior who would transform the world in his new image. The fascists believed that the prototype of the "new fascist man" had been forged in the trenches of the first world war — above all, the willingness to risk all, and sacrifice all, for the cause — and that only such men were worthy of positions of power and prestige. . . . The values of fascism were the values of war, and fascist societies and movements were invariably led by military veterans with great charismatic appeal (we've all seen the crowd scenes, at least). And the interplay between leader and the faithful was ritualized to the point where many came to believe that fascism was a form of civic religion, and the interplay of ritual chants in response to standardized phrases by the leader was a sort of political mass.

Finally, fascism sought to engage its followers and enlist them in great spectacles of political and national enthusiasm. The best-known example is the Nazi propaganda film Triumph of the Will, which portrayed Hitler as a kind of superman, dominating the frenzied German crowds below him. These spectacles helped overcome one of fascism's most vexing paradoxes, namely that while the political doctrine emphasized individual creativity, the actual practice of fascist regimes imposed a monotonous conformity, enforced in the name of the collective, whether it be nation, race, or people. Communism, for example, never went in for political enthusiasm; it was (and is) didactic. No fascist leader would have dreamt of delivering endless speeches of the sort heard from Stalin, Castro, or Mao. Fascist speeches were much shorter, much more colorful, and far more emotionally intense.
Reading this reminded me of a much better analysis of historical fascism by David Ramsay Steele in Liberty Magazine a couple years ago. Unfortunately, Liberty's website is a few years behind. Searching for this article, however, led me to another piece by David on libertarianism called An Accident of Rebirth. Having lived through, and been deeply enmeshed in, the rise of the modern libertarianism (where I met David when he and I were students), I found his account of the influence of Rand and Rothbard wonderfully insightful. It provides a window into this phase of libertarianism for today's young libertarians. My only caution: David's criticism of 70's natural rights libertarians is not a criticism of how most libertarian natural rights theorists argue today. Today's libertarian natural rights theorists are firmly ensconced within the tradition of classical liberal natural rights theorists for whom consequences matter. I was led away from the Rothbardian/Randian form of natural rights by listening to lectures by former-Rothbardian George Smith (whose website, Philosophe, seems to be abandoned for over a year). (The result was my book, The Structure of Liberty: Justice and the Rule of Law.)

This symposium was in response to a poll by Liberty of its readers. The very choice it was testing--between natural rights and utilitarianism--reflects the Rothbardian libertarian mind set. In addition to the essay by David, if you scroll down, you find others on the question of rights vs. utility by David Friedman ("Rethinking the Data"), David Boaz ("No Contradiction Between Rights and Consequences"), Leland Yeager ("In Defense of Utility"), Tom Palmer ("The Case of the Missing Premise; or, The Axiom That Wasn't Categorical") and Pierre Lemieux ("Inescapable Facts, Unavoidable Constraints"). I particularly recommend the essays by Boaz and Palmer. Check it out.


Mother Teresa, the musical! is playing in Rome, to coincide with her beatification. I'd be interested to listen to the soundtrack one of these days.

But speaking of European musicals, I recently finished listening to Notre Dame de Paris, the French "Hunchback of Notre Dame" musical. The book is one of my favorite novels; the musical gets rave reviews on Amazon, but I can't figure out why -- most of the songs are the most vapid pop, nothing clever, and on the pompous side. As far as musical adaptations go, the Disney version is far better, though the plot isn't really much like the Victor Hugo plot.

Better is another musical I picked up while in Vienna last month: Mozart! by Michael Kunze and Sylvester Levay, which actually has some clever lyrics and catchy tunes. Of the more classical musicals, the German version of My Fair Lady (Cockney = Viennese dialect) is good; the German version of Fiddler on the Roof (called Anatevka in German), which I saw at the Volksoper, is not so greatly translated, not so energetically acted (I've been spoiled by Theodore Bikel), and unforgivably plays down the pogrom scene.


Nice: Ed Cone points to this article from The News-Record:
Ron Simpson knows guns -- and instantly knew the one in front of him Wednesday night was a phony.

Sure, the gun in the hands of the would-be robber at Action Video at 1058 Alamance Church Road had the look of a 9 mm, but Simpson, the manager, said he was "95 percent sure" the muzzle was too small to project a bullet.

"That is not a real gun," Simpson told the robber. "This is a real gun," he said, pulling a .25-caliber derringer from his front-right jeans pocket. . . .

Simpson picked up a cordless phone, dialed 911 and followed the robber outside. The fearful criminal stayed about a minute and ran before police arrived. . . .

Simpson carries the gun for protection and admits he's told employees not to risk their lives by fighting robbers. But to him, it was personal.

"Police don't suggest this, I know. But this is me. I'd do it again," he said.


Caterpillar vs. Disney: According to CNN,
Bulldozer maker Caterpillar Inc. wants to bury Walt Disney Co.'s "George of the Jungle 2" movie, which it alleges in a lawsuit filed late Tuesday in Federal Court in Peoria, Illinois, infringes on its trademarks.

The heavy equipment giant contended in the suit that the straight-to-DVD project about the hapless jungle man battling "bulldozing bullies" puts Caterpillar in a bad light, the Peoria Journal Star said Wednesday. . . .

The movie due to be released October 21 pits George against an industrialist seeking to destroy the jungle. . . .

George, played by Chris Showerman, fights "bulldozing bullies" who drive Caterpillar equipment. That could have a "negative impact on children that view the movie" for the bulldozer maker and its line of toys, the newspaper quoted Caterpillar as charging.
Well, yes, it could. But trademark law does not give trademark owners the right to control portrayals of their trademarks in works of fiction, even if the portrayals are negative. So long as the moviemaker doesn't make false factual assertions about someone -- so long as the work is clearly fictional, and not intended to represent any real claims that Caterpillar is somehow committing some crime or misconduct -- the moviemaker's speech is constitutionally and statutorily protected. See, e.g., Mattel v. MCA Records (9th Cir.), the "Barbie Girl" case, speaking about the "noncommercial use" except to the Federal Trademark Dilution Act:
[Reading the exception to refer only to uses that aren't sold for money] would . . . create a constitutional problem, because it would leave the FTDA with no First Amendment protection for dilutive speech other than comparative advertising and news reporting. . . . Fortunately, the legislative history of the FTDA suggests an interpretation of the "noncommercial use" exemption that both solves our interpretive dilemma and diminishes some First Amendment concerns: "Noncommercial use" refers to a use that consists entirely of noncommercial, or fully constitutionally protected, speech. See 2 Jerome Gilson et al., Trademark Protection and Practice § 5.12[1][c][vi] at 5-240 (this exemption “is intended to prevent the courts from enjoining speech that has been recognized to be [fully] constitutionally protected,” “such as parodies”). Where, as here, a statute’s plain meaning “produces an absurd, and perhaps unconstitutional, result[, it is] entirely appropriate to consult all public materials, including the background of [the statute] and the legislative history of its adoption.”

The legislative history bearing on this issue is particularly persuasive. First, the FTDA’s sponsors in both the House and the Senate were aware of the potential collision with the First Amendment if the statute authorized injunctions against protected speech. Upon introducing the counterpart bills, sponsors in each house explained that the proposed law “will not prohibit or threaten noncommercial expression, such as parody, satire, editorial and other forms of expression that are not a part of a commercial transaction.” 141 Cong. Rec. S19306-10, S19310 (daily ed. Dec. 29, 1995) (statement of Sen. Hatch); 141 Cong. Rec. H14317-01, H14318 (daily ed. Dec. 12, 1995) (statement of Rep. Moorhead). The House Judiciary Committee agreed in its report on the FTDA. H.R. Rep. No. 104-374, at 4 (1995), reprinted in 1995 U.S.C.C.A.N. 1029, 1031 (“The bill will not prohibit or threaten ‘noncommercial’ expression, as that term has been defined by the courts.”). . . . [See also] H.R. Rep. No. 104-374, at 8, reprinted in 1995 U.S.C.C.A.N. 1029, 1035 (the exemption “expressly incorporates the concept of ‘commercial’ speech from the ‘commercial speech’ doctrine, and proscribes dilution actions that seek to enjoin use of famous marks in ‘non-commercial’ uses (such as consumer product reviews)”); 141 Cong. Rec. S19306-10, S19311 (daily ed. Dec. 29, 1995) (the exemption “is consistent with existing case law[, which] recognize[s] that the use of marks in certain forms of artistic and expressive speech is protected by the First Amendment”). . . .
So the George of the Jungle movie is "noncommercial use" -- though it's sold in commerce, it's not commercial advertising, and thus fully protected speech and not "commercial speech" as the Supreme Court has defined it -- and therefore not legally punishable.

     I think the Mattel decision is correct, and that any other result would be inconsistent with the Supreme Court's First Amendment jurisprudence. Unfortunately, Caterpillar's claim isn't completely lacking in precedential support; some decisions have slighted First Amendment concerns in trademark dilution cases, see, e.g., Anheuser-Busch v. Balducci, 28 F.3d 769 (8th Cir. 1994). But even under those cases, I think Disney should win; and I think the Mattel case is both better reasoned and more likely to be followed by courts today.

     And fortunately, Disney is a rich company, with a reputation for being willing to litigate -- and the movie is about to be released, so it's unlikely that Disney will have the time to easily make the changes that Caterpillar seems to be demanding. So I think Disney will fight it, and win; and if the case leads to a published opinion, other speakers will derive the benefits of this victory.


Malaysian Prime Minister's anti-Semitic remarks: Reader David Rosenberg pointed me to the State Department response to Malaysian Prime Minister Mahathir's remarks:
QUESTION: New topic? Do you have anything to say -- and I have some follow-ups, too -- about the Malaysian Prime Minister's remarks at the Organization of the Islamic Conference, saying that the Jews run the world by proxy, and other such things?

MR. ERELI: Right. I would say a couple of things. One is, we've seen the statements. Two is, it's not the first time we've seen comments like this from that official. The third thing is that, let's be clear, the remarks are offensive, they are inflammatory, and we view them with the contempt and derision they deserve.

QUESTION: Can I just follow up on that? At the actual meeting: (a) did the Ambassador, did our representation there condemn the remarks, you know, publicly; and (b) has the State Department or does the State Department intend to ask the OIC to state something like, "This is totally crazy, it shouldn't be in an international forum like this," these crazy ideas shouldn't be crazily stated?

MR. ERELI: Well, we will certainly make our views known. As far as actions at the OIC summit, it is not customary for American diplomatic personnel to be at OIC summits since we're not --

QUESTION: I think there was there.

MR. ERELI: Pardon?

QUESTION: I think there was diplomatic representation. And I'm sorry, I don't have the name of the person who was there. It was a woman, I think it was.

MR. ERELI: As I said, it is customary for us not to be. Now, whether we were there or not in this one, let me check on that for you. But, so I'll have to check to see whether we were there or not.

And as far as making our views known, we do that customarily. I'm doing it from here, speaking on behalf of the U.S. State Department very clearly. And as to what we'll do at the embassy level, let me get you an answer for that. . . .
At least I like the "contempt and derision" part.


The Geneva Convention: Zev Sero catches the New York Times in a pretty important error. Here's a paragraph from their editorial about the Guantanamo prisoners:
The justifications offered by the administration are equally unpersuasive. The argument that the detainees are not prisoners of war because they are not uniformed members of a regular armed force has no foundation in the Geneva Conventions.
Oddly enough, they don't mention the provision from the Third Geneva Convention that governs this very question:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. . . .

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. . . .
The Times position is not completely logically incompatible with the Geneva Convention text: Perhaps their point is that art. 4(A)(1) applies to nonuniformed members of regular armed forces as well as to uniformed ones, so that those detainees who were members of regular armed forces but just not uniformed are covered. But that's a mighty subtle argument, and even it is assailable on various grounds; as I understand it, there's some legal controversy as to whether the four factors in art. 4(A)(2) have been understood as essentially covering art. 4(A)(1) as well (historically, I believe, spies and saboteurs who don't fight in uniform have not been treated as prisoners of war), and whether the Taliban itself is properly seen as a "regular armed force." Moreover, it would in any event apply only to a subset of the detainees -- those who fought in the armed forces of the Afghanistan government, and not those who fought as parts of separate nongovernmental organizations, for instance as al Qaeda.

     So the Times seems to be taking advantage of most readers' lack of knowledge of the Geneva Convention, coupled with the readers' trust in the newspaper's accuracy, to make a broad categorical statement -- "The argument that the detainees are not prisoners of war because they are not uniformed members of a regular armed force has no foundation in the Geneva Conventions" (emphasis added) -- that is at the very least highly incomplete.

UPDATE: Phil Carter rightly points out an important twist:
Eugene and Zev both miss another argument that could be made for why the Geneva Convention does not support our action. Art 5 of the Geneva Convention creates a rebuttable presumption that prisoners are to be considered POWs until determined otherwise by a properly constituted tribunal:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
An executive determination (like the one made by President Bush) cannot suffice under the Geneva Convention for this article, unless you buy the argument that the President himself is a "tribunal" under the meaning of this article. FM 27-10, the Army's field manual for the law of land warfare, is also quite clear about this requirement. In practice, the Army has constituted many such tribunals in Iraq, usually with mid-level officers (Captain through Lieutenant Colonel) with some connection to the detention operation (MP, JAG, Intel, Civil Affairs). These do not have to be formal proceedings, and they don't even have to be adversarial. The tribunals can conduct an ex parte review of each combatant to make this determination and report that in writing to the commander, with a courtesy copy to the ICRC. (The Red Cross is charged as the executor of the Geneva Conventions.)

However, in the absence of such tribunals, we may very well be in violation of the Geneva Convention. Not in the way the NYT suggests with its editorial, but in a technical and procedural way. I'm well aware of the dissonance between substantive law and procedural law, and how the former tends to trump the latter. If this is mere formalism, then why bother? I'm biased as a law student, but I tend to believe that the foundations of substantive justice lie in procedure. The way we ensure our principles are executed is by crafting procedures to carry them out. In the instant case, the Geneva Convention exists to promote humane treatment of prisoners of war, and it sets out procedures to ensure that this principle is practiced. America ought to follow those procedures, even if they are empty formalities, because it's the right thing to do.
Phil's point is a good one, and in retrospect I wish I'd at least briefly mentioned it. (I focused only on the substantive issue and not the procedural question, but Phil is right to remind us that the procedure is often very important as a means of making sure the substantive conditions are properly satisfied.) But again this is a subtle (though important) point that is hardly reflected in the Times' "The argument that the detainees are not prisoners of war because they are not uniformed members of a regular armed force has no foundation in the Geneva Conventions."

     Note also that, if I recall correctly, the Administration's position is that no "doubt [has] arise[n] as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4." (I take it that they read "any doubt" as "any plausible doubt," but that's probably a sound reading, since surely the language requires something more than someone saying "I doubt it.") If both the Taliban and al Qaeda are definitionally not covered by article 4 -- because they aren't part of the regular Afghan armed forces, or because those groups generally didn't follow the four conditions in 4(A)(2), and 4(A)(1) applies only to those forces which do generlaly follow the four conditions -- then (the Administration argues) there is no plausible doubt about the status of any particular detainee. I'm not sure if the Administration is right on this, and if it's wrong, then that is indeed a violation of article 5. But again, I'm pretty sure that this isn't what Times readers who haven't read the Geneva Convention would have taken away from the editorial.


Why non-profits call you on the phone: The "do not call" list does not stop them. And non-profits are finding telephone solicitation increasingly more profitable than direct mail. For the full story, read the economically sophisticated Mal Warwick.

Here is an opening salvo:

"Calling your donors on the phone seems intrusive. It's a technique widely known to be used by fraudulent charities. It puts your organization's reputation at risk because you may not be able to exert direct control over the individuals who make the phone calls. And, besides, you just hate it when somebody calls you at dinnertime to ask for money — and so does everyone you know!

Then why do so many organizations use the telephone so extensively in their fundraising programs?

The answer I give to that question is precisely the same as my response to those who ask why so many nonprofit groups use direct mail:

It works!"

$61 billion a year is raised by phone calls; this article shows you how the callers make their calculations.

Thursday, October 16, 2003


Notwithstanding... Eugene's occasional digressions, this is, roughly, a family blog.

Accordingly, I won't be blogging again until I'm sure I can do so without... um... colorful language about tonight's events in the Bronx...


Choosing a Pope: Eugene refers us to the betting odds on the next Pope. Here are some earlier betting odds, now obsolete.

The voting method for the Pope introduces some interesting problems of game theory. There are 136 eligible cardinals this time. The next pope needs 2/3 of the total, plus one. If the conclave remains deadlocked after 30 votes (usually about 12 days), a simple majority suffices.

Now say that there is no obvious winner with overwhelming support. How might the voting proceed?

Assume that each cardinal wishes to back the winning candidate, all other things being equal. You have more leverage if you are part of the winning coalition. So you may support your favored candidate at the beginning, but drop that support if it becomes clear your favorite has no chance. You will then switch to the next best alternative, which is some weighted average of how much you like the candidate and how strong a contender the candidate is. Of course you might never back a candidate you abhor, or a candidate whose chances are hopeless.

The first round of voting reveals information, namely who has how much support. Often this information is revealed in pre-voting lobbying, or now, in the betting market. We should expect eventual convergence, as the more popular candidates garner more support, and the less popular candidates become revealed as non-viable contenders.

You don't have to be the leader in the first round to become Pope. You might be the second or third choice of the voters who supported non-viable candidates, they will switch to you as their candidates drop out. You might then pull into the lead, thereby picking up yet additional support. Still, you have to become established as a leading alternative candidate, pretty early on in the game.

The voting method encourages conservatism of choice, and that indeed is my prediction for the day. Radical challengers have a hard time appearing inevitable or focal. They have a hard time picking up a snowball of support. Here is a tip sheet on some of the leading candidates.

Oddly, it can be worse for a candidate to appear "too inevitable." That forces many second-tier candidates to lose their supporters, which can coalesce support around somebody else, too quickly. There is an old saying: "He who enters a conclave as Pope comes out a Cardinal."

Now the betting market strongly favors Dionigi Tettamanzi, he has many supporters, read here. He appears to be a conservative candidate. Here are some of his writings, along with information on other potential candidates.

My prediction: if we get major reforms, it will be by stealth, and much later. When the choice is announced, Andrew Sullivan will be disappointed. But Andrew should have heart, and remember the old political saying, "Only Nixon Can Go To China."


Anti-Semitism: A first-rate post from Clayton Cramer:
Read the following statements from this news story, then try to guess who said this, and how many layers of tinfoil he has on the inside of his hat to keep out the mind control rays:
"Jews rule the world by proxy"


[], ... criticized what he described as Jewish domination of the world...


"The Europeans killed 6 million Jews out of 12 million, but today the Jews rule the world by proxy," [] said. "They get others to fight and die for them."


[] said Jews "invented socialism, communism, human rights and democracy" to avoid persecution and gain control of the most powerful countries.
Wow! They invented not only communism, but its two strongest enemies, human rights and democracy! Clever folks, those Jews!

So, who is this paranoid believer in conspiracy theories? Some guy living on a steam grate in New York City? A member of Aryan Nations, living in a ramshackle cabin in Montana? No, [the] prime minister of Malaysia. The whole story of his ranting and raving can be found here.

And who was he addressing? The Organization of the Islamic Conference. There is a real struggle for the future -- and it is beginning to look like Islam vs. the West.
Very well put. I hope the last sentence (which I take it to mean the Islamic countries vs. the West) is something of an overstatement. But given the intensity of anti-Semitic and anti-American poison being spread by government agencies and government officials in some of the leading -- and supposedly less extremist -- Islamic countries, I'm not sure that it is.

     Also quite troubling -- not surprising, of course, and perhaps unavoidable, but troubling -- is this:
U.S. Ambassador to Malaysia Marie Huhtala declined to comment on Mahathir's speech. Washington was angered over a speech he made in February, as host of the Non-Aligned Movement of 117 countries, in which he described the looming war against Iraq as racist.

Afghan President Hamid Karzai said he supported Mahathir's analysis, which also included steps for how Muslim nations can develop economically and socially.

"It is great to hear Prime Minister Mahathir speak so eloquently on the problems of the ummah (Muslim world) and ways to remedy them," Karzai said. "His speech was an eye-opener to a lot of us and that is what the Islamic world should do."


Smoking for science! Emir Kamenica, a grad student in my department, sends this request around to our fellow students:

Do you smoke? If so, do you always smoke for selfish reasons of pleasure? Do you want a rare opporunity to smoke for the benefit of others?

You can now smoke cigarettes and by doing so help the great cause of expanding economic knowledge. I am running an experiment on social interactions and smoking and I need some confederates to smoke at a bus station in Harvard Square. I cannot pay you, but (i) you will get to enjoy that irreplaceably smooth taste of burning tobacco, (ii) it won't take much of your time, (iii) you will get a FREE! copy of the paper once it's written, and best of all (iv) you will get to Smoke for Science!

Ah, science! Almost makes me wish I were a smoker.


Blogging From Israel: I'm blogging from an Internet cafe in Israel, where I recently arrived for a brief visit to attend my girlfriend's mother's funeral. Today, I ate breakfast in my hotel's Sukkah, had some pomegranite juice at a fruit stand, took a walk around Ramat Gan with my girlfriend's family (shiva will not start until the holiday of Sukkot ends), ate lunch at a kosher McDonald's, bought some chocolate, went eyeglass shopping, bought a diet Snapple at a convenience store, and then to the Internet cafe. All this to say that life is Israel goes on very close to normal, compared to the current miserable existence of Palestinians, beset by curfews, roadblocks, unemployment, etc. The Palestinians have brought calamity on themselves, and destruction of many innocent lives, all for nought--they are much further away from getting a viable state than they were when the Second Intifada started. They have clearly lost the war, and I just wish the Israeli government had some p.r./propaganda skills to drive this point home to them. Why Israel never drops leaflets, broadcasts directly to the Palestinians, etc., I don't know. I think it's a combination of right-wing contempt for Arabs and left-wing sentiment that Palestinian nationalism can never be overcome by anything as prosaic as a peaceful, prosperous life in a liberal Democratic Palestine next to Israel.


And Now for Something Completely Different: For those of you who reside in the DC area, you are invited to attend a "friends and family" performance this Tuesday night at 8:00 pm by Laughingstock, an improvisational theater group that brings laughter and entertainment to audiences at hospitals, community centers, shelters, and other social service organizations in and around Washington. Laughingstock is sponsored by the DC Jewish Community Center, Office of Community Outreach. The show will be held at the JCC at 16th and Q. It's a benefit for DC schoolchildren, so in lieu of an admission fee audience members are asked to bring school supplies. If you haven't seen improv before, this is your big, inexpensive chance. Oh yeah, did I mention that I am a member of the Launghingstock cast?


Compare this
Daniel Hamermesh, a professor of economics at the University of Texas at Austin, and Amy Parker, one of his students, found that attractive professors consistently outscore their less comely colleagues by a significant margin on student evaluations of teaching.
with this:
Equity, like all of us, prefers the rich and good-looking.


Interesting topics in philosophy: Via Crooked Timber and my friend Mitch Gunzler, two snippets from the American Philosophical Association's Calls for Papers:
Philosophy and The Onion. Now soliciting proposals for projected philosophical anthology on any aspect of The Onion, America's leading satirical newspaper. Brief, informal proposals are welcome at this stage. Submit to Graham Harman at (deadline for initial proposals is October 31, 2003)

The Undead and Philosophy. Abstracts are sought for a collection of philosophical essays on the theme of the undead. We are seeking abstracts, but anyone who has already written an unpublished paper on this topic may submit it in its entirety. Richard Greene & K. Silem Mohammad, Editors. (Submission deadline: December 15, 2003)
No, the first item doesn't seem to be itself from The Onion. Here, by the way, is the material from the site pointed to by the second item:
Abstracts are sought for a collection of philosophical essays on the theme of the undead. The editors are currently in discussion with Open Court Press (The publisher of The Simpsons and Philosophy, The Matrix and Philosophy, and the forthcoming The Sopranos and Philosophy, etc.) regarding the inclusion of this collection in a new book series dealing with philosophy and various cultural topics. We are seeking abstracts, but anyone who has already written an unpublished paper on this topic may submit it in its entirety. Potential contributors may want to examine other volumes in the Open Court series.

Contributors are welcome to submit abstracts on any topic of philosophical interest that pertains to the theme of the undead. We define "the undead" as that class of corporeal beings who at some point were living creatures, have died, and have come back such that they are not presently "at rest." This would include supernatural beings such as zombies, vampires, mummies, and other reanimated corpses. The editors are especially interested in receiving submissions that engage the following perspectives: philosophy of mind; the metaphysics of death; political and social philosophy; ontology and other topics in metaphysics; ethics and bioethics; aesthetics; cultural theory and globalization studies; race and gender; epistemology; philosophy of religion; phenomenology and existentialism. Possible topics might include, but are not limited to, the following: zombie-based critiques of functionalist theories of mind; historical treatments of the undead in philosophy; the films of George Romero, Danny Boyle, and Joss Whedon; the novels of Mary Shelley, Bram Stoker, Anne Rice, Bruce Campbell, and Poppy Z. Brite; critical writing by Julia Kristeva, Jalal Toufic, and Slavoj Zizek.
And The Simpsons and Philosophy: The D'Oh of Homer! is a real book, co-edited by Aeon Skoble, whom I know and like.


Sullivan on Rush and the Benefits of Intoxicants: One consequence of the prohibitionist mind set is a refusal to admit that a prohibited item, though risky, can be beneficial to one's life. The vehement opposition of both the Clinton and Bush administrations to the medical use of cannabis, voted in by the electorate and regulated by state governments, is one well-known example. In his new book (as yet unread by me, I regret), Saying Yes: In Defense of Drug Use, Jacob Sullum explores other personal benefits of moderate use of intoxicants. You can read his take on heroin from Reason Magazine here. It was this article that made me--someone who has not even tried marijuana but who favors complete legalization of all intoxicants for sale and distribution to adults--want to read the whole book. (For my analysis of the harmful personal and social consequences of drug prohibition see here and here.)

Now comes Andrew Sullivan to discuss the possible benefits to the conservative movement of Oxycontin's effect on Rush Limbaugh's on the air performance.

All this leads to a simple question people have so far avoided: was Rush actually high during his broadcasts? Given the enormous amount of drugs in question, given their addictive quality, I'd say that the odds that Limbaugh was high when he was broadcasting are pretty good. Some might argue that you need to have your brain on drugs to say the things Rush said. But I'd argue the opposite. In fact, it might be true that Rush was a better broadcaster because he was high. His particular blend of self-mocking, lacerating, funny and fluent commentary reminds me in a way of people on a kind of high. Or maybe this attitude is actually hard to sustain for so long at such a pitch--and so the drugs helped him endure the slog of daily broadcasting the way drugs can enhance athletes' performance. Either way, the drugs may well have helped him do his job well.
Find the rest here. I should add that I listen regularly to Rush, wish him the best, and do not consider him in the same league as Bill Bennett as a moralizing proponent of victimless crime laws. If Rush pontificated very often on drugs, I could not stand to listen to him, so I know such discussions were rare--and nearly always in response to libertarian callers who tried to persuade him, unsuccessfully, to support legalization. For this reason, while I condemned Bennett for actively pursuing prohibition of the vices of others (see my NRO piece, Do Unto Others: The Vices of Bill Bennett), notwithstanding his own legal vices of tobacco, then gambling, and obviously food, I have a soft spot for Rush and his current woes. Prohibition is an unjust and highly destructive policy (see my argument in the sources linked to above), but many reasonable people, somewhat inexplicably to me, persist in believing that the benefits of discouraging use by threatening punishment are worth the terrible price paid by those prosecuted and by society at large. Rush is one of those people. He was willing to defend his beliefs publicly when challenged, but prohibition was not one of his on-the-air priorities--perhaps now we know why. So I wish him the best, hope he changes his mind about prohibition when he emerges from rehab, but I will not be holding my breath.


Fidel Castro, book reviewer and theorist of language: Here is an excerpt from Castro's review of Garcia Marquez's autobiography. Garcia Marquez, a long-time apologist for Castro, also read here as well, is very ill with cancer and is racing against time to finish his life story.

Here is Castro's stated theory of language, which perhaps resembles his approach to politics: "He [GM] and I share a scandalous theory on the relativity of words in language. Also, as a public man obliged to write speeches and narrate events, I agree with the illustrious writer on the delight of finding the exact word - a kind of shared and inexhaustible obsession - until the phrase fits our criteria. Above all, I admire the fact that when an exact word doesn't exist, he calmly invents one. How I admire that licence of his!"

Wednesday, October 15, 2003


Now online: My new TNR column is up.

More importantly: the Red Sox won!


"Bet now on the next pope": The last thing I'd want to bet on, even if I were a gambling man, but I pass it along for those who might be interested . . . . Thanks to reader John Griffin for the pointer.


Oddities: In between clicks of "reload" on the Red Sox-Yankees score, I followed one of the various links to this lovely picture of former RNC chair Haley Barbour palling around with the racist Council of Conservative Citizens. Despicable, of course. Predictable, of course.

What's not predictable: follow the link, look to the left, then come back here.

The CCC's associated foundation has produced a special documentary about the Frankfurt School.
This documentary recounts the work of a group of Marxist theorists who sabotaged American culture and beliefs through Critical Theory and other destructive doctrines. Half of century of Frankfurt School conspiracy has evolved into the tyranny of Political Correctness.... Political Correctness did not happen by accident; it arose from a Communist conspiracy to demoralize and subjugate the American people .
This is nuts, unsurprisingly, and I'm not going to dignify it with a response. But it's nuts in a weirdly fascinating way. Why on earth did a bunch of Confederatistas happen to fixate on Adorno & Co. as the root of all evil? The topic seems a touch... obscure... for their tastes. And somehow I can't imagine many CCC members snapping up a documentary about midcentury German social theory.

Or is it just me? UPDATE: Josh Cherniss has more. And reader Jason Walta writes in:
The truth is that the right's strange obsession with Adorno, Horkheimer, and the gang is a fairly long-standing one. Thomas Frank has dug up some great stuff on this (I believe in his terrific Chicago-based 'zine, the Baffler).

For example, Pat Buchanan has an entire chapter on the Frankfurt School in "The Death of the West." The John Birch Society rag, the New American, has regular articles on the Frankfurters (and Antonio Gramsci), such as this one:
Even Rush Limbaugh has a few choice words for Adorno in one of his books, "I Told You So."

Just for fun, type "Frankfurt School" into the search engine at Paul Weyrich conservative organization, the Free Congress Foundation (, and see how many hits pop up.

I think a Cliff's Notes version of the wing-nuts' obsession with the Frankfurt School is this: the cultural decay of the U.S. is a plot orchestrated by the F.S., which is comprised of (1) Jews and (2) commies. 'Nuff said.


More on recusal, 4-4 ties, and Justice Scalia: Larry Solum has a very interesting post on this subject.


John Lott Responds to Mother Jones Article: Available here. My inability to independently reach a judgment on the substance of these issues--and the similar inability of others--is why I think it is so important to assemble an independent panel to assess the merits of this controversy. For me, this is what distinguishes the Lott affair from the controversy surrounding Michael Bellesilles. I could read for myself the truncated and misrepresented quotes identified by those who studied his work. I could understand how the probate data was wrongly reported. And I could judge for myself Bellesiles' shifting stories and denials. Therefore, I did not need the group of scholars empaneled by Emory to reach a conclusion about Bellesiles' scholarship (though apparently many historians did). In contrast, I do need a comparable panel whose motives I can trust here, and I am sure I am not alone.

UPDATE: A reader writes:

"I just read your post on the Volokh conspiracy. I must say I found it a bit disappointing. At the very least, having read the Mother Jones article and then Lott's response to it, you can surely see that his response is thoroughly evasive, and doesn't really address the thrust of the article at all. You can see a similar evasiveness in the interviews with Lott, which Mother Jones has made available. Doesn't that at least worry you?"
The simple answer is "yes, it does," and I had not meant to suggest the contrary in my post. This post was meant to let readers know of Lott's response, to renew the call for an independent panel to evaluate the substance of this multifaceted and often technical dispute, and to explain why I feel in a different position to judge its merits than I did with the Bellesiles scandal. I had thought that my previous post on the Mother Jones article in which I wrote "[U]ntil an investigation is conducted by some nonpartisan group, I now place more stock in Ayres and Donahue's results than in Lott's," made clear my worry about the reliability of Lott's data. Anyhow, I welcome the opportunity to deny any inference to the contrary.

FURTHER UPDATE: Tim Lambert analyzes Lott's reply here.


Justices thinking about 4-4 splits when deciding whether to recuse themselves: Some correspondents were surprised that Justices would think about the risk of a 4-4 split when deciding whether to recuse themselves. My sense from the messages is that people thought such decisionmaking was somehow improper, or that my suggesting that Justices would decide this way was an accusation of some degree of impropriety.

     I don't think so. Chief Justice Rehnquist has twice said in court opinions that the risk of a 4-4 split is a reason that Justices should avoid recusing themselves unless a recusal is really necessary. See Microsoft Corp. v. United States, 530 U.S. 1301 (2000) ("Finally, it is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here--unlike the situation in a District Court or a Court of Appeals--there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine Members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court."); Laird v. Tatum, 409 U.S. 824 (1972) ("[A] federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified. . . . There is no way of substituting Justices on this Court as one judge may be substituted for another in the district courts. . . . While it can seldom be predicted with confidence at the time that a Justice addresses himself to the issue of disqualification whether or not the Court in a particular case will be closely divided, the disqualification of one Justice of this Court raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled. The undesirability of such a disposition is obviously not a reason for refusing to disqualify oneself where in fact one deems himself disqualified, but I believe it is a reason for not 'bending over backwards' in order to deem one's self disqualified.").

     The point of my post was subtly different:
Sheer speculation about the Pledge case: John Noble, a participant on a discussion list that I run, asked: If Justice Scalia wasn't strictly required to recuse himself -- and though I'm not a legal ethics scholar, my tentative guess is that his recusal wasn't clearly mandated by the law, but was rather something on which reasonable judges could differ -- then might his recusal be a hint that he knew the Court would not split 4-4? He might either strongly suspect that, say, Justice Souter or Justice Breyer will join the four remaining conservatives to uphold the Pledge; or he might strongly suspect that, say, Justice O'Connor or Justice Kennedy will join the four liberals to strike it down.

Naturally, if Scalia felt that the recusal rules required him to recuse himself, then he would presumably ignore such considerations. But if it was a close question, then I think he might legitimately consider this factor, since 4-4 splits end up wasting the Court's time, and leaving the law unsettled. So -- the theory goes, and I'm not sure that it's right -- Justice Scalia's recusal might be a signal that he knows something about the Justices' likely votes, and that whatever they'll be, they probably won't be 4-4.
     Rehnquist was writing about the risk of 4-4 splits as a general argument to avoid recusal unless it was necessary. My post was quoting a suggestion that Scalia might be considering the risk of a 4-4 split in the particular case in deciding whether to recuse. But I think that while there's a potential difference here, it's not that great. It seems to me that the purely hypothetical reasoning that was speculatively assigned to Scalia is just as legitimate as that which Rehnquist publicly gave in his opinions; and it seems that this reasoning is not implausible, though I have no idea whether it's accurate.


Anti-race-preferences measures, politics, and turnout: My friend and fellow lawprof Gail Heriot (writing on the new The Right Coast profblog) has a thoughtful and interesting analysis of this:
A Michigan Civil Rights Initiative similar to California's Proposition 209, which passed by a wide margin in 1996, is currently being proposed. If passed, it would prohibit the State of Michigan from discriminating or granting preferential treatment on the basis of race, sex, color, ethicity or national origin.

Conventional wisdom has it that when such initiatives are put on the ballot, Republican candidates are hurt even though they tend to side with majority opinion in opposing racial preferences. The reason is voter turnout. Those who oppose racial and gender preferences seldom consider the issue to be the most important issue of the day. Hence putting it on the ballot will seldom cause them to turn out to vote if they were not going to do so anyway. On the other hand, those who favor such programs may bother to show up only because the issue is on the ballot. Once there, they vote for Democrats.

Under this view, it doesn’t matter whether voters overwhelmingly oppose racial preferences (as indeed polls indicate.) Nor does it matter that initiatives opposing racial preferences tend to pass by strong margins. All that matters is that having the issue on the ballot might induce a number of Democrats to turn out at the polls who otherwise would not have, thus disadvantaging Republican candidates.



Stupid porn tricks: A paragraph I recently ran across in Ginzburg v. United States, a 1966 Supreme Court case:
EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal; the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey.
Sounds more like Beavis & Butthead (Heh. Heh-heh. He said "Intercourse." Heh.) appeal than salacious appeal, but maybe times were different then.


You are what you eat: If you were interested by Eugene's and my musings on the verbs for "to be" and "to eat" (man ist, was man isst), then you'll be interested in David Janes's further exploration of the issue here and here.

David had started out arguing that "man ist, was man isst" is a false similarity, since "isst" is the result of an E to I change in "essen" (to eat), while "ist" is a form of "sein" (to be). I argued to him that given the similarity in Russian ("est'"), German ("ist"/"isst"), and Latin ("est") between "he is" and "he eats," something may indeed be up in a deep Indo-European sense; or if not, the coincidence is again a deep Indo-European one and can't be explained by a peculiarity of German conjugation rules. David's second post (the same as the one I linked to above) actually digs into Indo-European roots and confirms that, indeed, it's just a coincidence.

A poster in David's comments section adds that, among German languages, the "eats"/"is" similarity is pretty shallow -- it's obviously not present in English, nor is it in Dutch, so it's not even a West Germanic feature. But the Russian and Latin action may be parallel, independent phonetic developments; the poster gives an example from classical Greek and Hawaiian!


What Were They Smoking? Yesterday, several news outlets misreported the 9th Circuit medical cannabis case of Conant v. Walters that the Supreme Court declined to review. They claimed that this now meant that use of medical cannabis approved by state law could not be stopped by the federal government in the states comprising the Ninth Circuit. Actually, the Conant case involves whether the federal government can prohibit doctors from recommending medical cannabis to their patients--not the legality of patients acting on this recommendation and then obtaining the cannabis. Although the court had sympathetic things to say about medical cannabis (and Judge Kozinski in his concurring opinion did question the constitutionality of federal interferance with state initiatives legalizing medical cannabis), the First Amendment played a large role in the Ninth Circuit's decision. I was pleased, but not surprised that the Court denied cert. Had these reports of Conant been accurate, however, there would have been no need for me to argue the cases of U.S v. OCBC or Raich v. Ascroft, both of which do go to the issue of whether patients may cultivate and use wholly intrastate medical cannabis free of federal prosecution. Today, I see the reporting has been corrected.


Michael Newdow finds God? From a September story by Tony Mauro:
Newdow says he is hopeful that Scalia will recuse. "It would be cool if he does. God would be speaking."
Well, OK, I take it he must not have been completely serious . . . .

Tuesday, October 14, 2003


The Justice Department on 9/11 and thereafter -- a view from inside: A fascinating account by lawprof Eric Muller (IsThatLegal?) of what sounds like an even more fascinating talk by now-Judge Michael Chertoff, who was then the Chief of the Criminal Division at the Justice Department.


Fool for a client? Chris Mooney asks:
I'm assuming that atheist Michael Newdow still plans to try to argue his own case (as he told me he would earlier this year). I'd love to hear from some legal expert -- perhaps from someone over at the Volokh Conspiracy, where there have been good thoughts today on this case -- about whether Newdow can actually get away with doing that. Another good question is, if Newdow does argue his case, will the remaining justices eat him for breakfast, or simply dismember him?
     Well, Newdow definitely is allowed to argue his own case; occasionally litigants do that. (I believe that even nonlawyers would be allowed to argue their own cases before the Supreme Court -- though I'm not completely sure, and such a rule would not be constitutionally required -- but Newdow was trained as a lawyer.) The year I clerked, for instance, Silvia Ibanez, a lawyer-CPA from Florida, argued her case -- the Florida Board of Accountancy was going after her on some rather tenuous charges of false advertising, and she had a First Amendment commercial speech defense.

     But is it likely to lose Newdow the case? Well, a litigant is rarely likely to be as good as a really experienced appellate lawyer would be; and I imagine there are quite a few experienced appellate lawyers who'd do the case for free. On the other hand, very few cases are either won or lost at oral argument. The briefs matter a good deal more, and I hope Newdow is getting some expert advice on them (I vaguely recall that he has indeed been writing his own briefs), especially on the standing issue, where the Justices are less likely to already have well-formed opinions of their own. Oral argument, though, is rarely the deciding factor. (Incidentally, Ibanez won her case handily, though I recall that her oral argument was quite competent.)

     What's more, remember that this is likely to be Newdow's one chance to argue a case in front of the Supreme Court. How many lawyers can resist that? Yes, he probably should be more unselfish about this, and care more about the cause than about his own fun (and in fact he seems to have devoted a lot of time and effort to the cause, so you'd expect him to want to maximize its chances of success). But still, imagine yourself in his shoes. Could you really pass up an opportunity like this?

     So I suspect that Newdow is hurting his case's chances a little bit by arguing the case himself, especially as to the standing question -- but only a little bit. So I can easily understand why he'd want to argue this one himself, even given his devotion to the principle that he's championing.

UPDATE: A reader points out that Newdow would probably have to apply to the Court for a permission to argue "pro hac vice," because he apparently hasn't been a member of a state bar for three years; see Supreme Court Rule 6. The Court sometimes denies such motions, see, e.g., Buckley v. ACLF, 119 S. Ct. 23 (1998). On the other hand, I'm not sure whether such an application is needed when a party represents himself. Cf. Supreme Court Rule 9, which suggests the rule may be different when a lawyer isn't appearing "in a representative capacity," but presumably representing himself. The Court has at least once denied such a motion for oral argument pro se (Seattle Times Co. v. Rhinehart, 104 S. Ct. 1267 (1983)), but there the party wanted to split argument with another lawyer. So I suppose it's possible that the Court will refuse to let Newdow argue -- but I doubt it.


"Could the Patriot Act threaten the growth of e-commerce?" So asked the New York Times in a story yesterday reporting that online booksellers and other "e-tailers" worry the PATRIOT Act will be bad for e-business. Specifically, they fear "fewer online purchases of politically incorrect books" and are cutting down on data retention concerning online purchases. "This has certainly had a chilling effect on us, and our customers," says one bookseller, who is no longer able to track the buying habits of his customers because he no longer keeps such information, "so as to avoid the possibility of having to disclose it to the government." According to the Times, "online businesses . . . are good candidates for law enforcement requests” for business records under Section 215 of the PATRIOT Act.

Funny thing, though, the Justice Department claims Section 215 of the PATRIOT Act has never been invoked. Moreover, even if the Justice Department did seek business records, such as a suspect's book purchases, a federal judge would still need to okay the request. It’s not the PATRIOT Act that is curbing e-commerce, but exaggerated fears about the PATRIOT Act’s reach. Perhaps the Times should have asked: "Could hysterical reporting and editorializing about the Patriot Act threaten the growth of e-commerce?" Maybe the blame shouldn't fall on John Ashcroft, but the ACLU. Now that would have been a story.

(Thanks to an anonymous reader for bringing this article to my attention.)


The Fist Amendment: Some amusing stuff from Garrett Moritz (thanks to How Appealing for the pointer).


Scalia statement about the Pledge case: I'm not sure whether this is the only statement that Scalia has made about the Pledge case, but it's the one that I found, from an AP story:
Courts have gone too far to keep religion out of public schools and other forums, Supreme Court Justice Antonin Scalia says.

Although the Constitution says the government cannot "establish" or promote religion, the framers did not intend for God to be stripped from public life, Scalia said Sunday at a religious ceremony.

He contended that the Constitution has been misinterpreted both by the Supreme Court and lower courts. As an example, he pointed to a federal appeals court ruling in California barring students from reciting the Pledge of Allegiance with the phrase "one nation under God." . . .

Scalia, the main speaker at an event for Religious Freedom Day, said past rulings by the Supreme Court gave the judges in the pledge case "some plausible support" to reach that conclusion.

However, he said, such decisions should be made legislatively, not by courts.

The rally-style event about 50 miles south of Washington drew a lone protester, who silently held a sign promoting the separation of church and state.

"The sign back here which says 'Get religion out of government' can be imposed on the whole country," Scalia said. "I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." . . .
     This, then, might be the reason for Justice Scalia's recusal, though I stress again that I'm not sure whether the rules mandate recusal in such a situation, or whether they leave a considerable amount of flexibility for the judge.


Student Lawyer Magazine has a very nice review of my Academic Legal Writing, on p. 14 of this month's (Oct. 2003) issue. Unfortunately, it doesn't seem to be up on the Web anywhere, I'm sorry to say.


Sheer speculation about the Pledge case: John Noble, a participant on a discussion list that I run, asked: If Justice Scalia wasn't strictly required to recuse himself -- and though I'm not a legal ethics scholar, my tentative guess is that his recusal wasn't clearly mandated by the law, but was rather something on which reasonable judges could differ -- then might his recusal be a hint that he knew the Court would not split 4-4? He might either strongly suspect that, say, Justice Souter or Justice Breyer will join the four remaining conservatives to uphold the Pledge; or he might strongly suspect that, say, Justice O'Connor or Justice Kennedy will join the four liberals to strike it down.

     Naturally, if Scalia felt that the recusal rules required him to recuse himself, then he would presumably ignore such considerations. But if it was a close question, then I think he might legitimately consider this factor, since 4-4 splits end up wasting the Court's time, and leaving the law unsettled. So -- the theory goes, and I'm not sure that it's right -- Justice Scalia's recusal might be a signal that he knows something about the Justices' likely votes, and that whatever they'll be, they probably won't be 4-4.

UPDATE: Thus Blogged Anderson suggests that Justice Scalia may know that the case is going to get thrown out on standing grounds. That way his recusal won't change the result, and won't even deprive him of a chance to write a juicy dissent or concurrence. Makes sense -- we'll see if that it indeed happens.


Child Online Protection Act case: Oooh, and another unusually accurate prediction, from March 6:
The U.S. Court of Appeals for the Third Circuit just struck down the Child Online Protection Act (the heir of the Communications Decency Act) yet again. As you may recall, the court struck COPA down on the grounds that "contemporary community standards" isn't a proper test in cyberspace; the Supreme Court reversed and sent the case back down for further consideration; now the Third Circuit has held that the law violates the First Amendment for other reasons.

     I've read the decision, and think that it makes some good points and some not so good ones; unfortunately, I probably won't be able to blog about it for a while. But I can confidently make a prediction: The Supreme Court will agree to hear the case again. No prediction as to how the Court will come out.
     The Court has indeed agreed to hear the case; I still have no prediction about the outcome.


Pledge of allegiance, on the merits: Here's a slight reworking of my original (June 2002) analysis of whether the Pledge of Allegiance is constitutional under the Court's existing Establishment Clause jurisprudence. I do not speak here to the standing question.

     1. The Court has generally held that it's unconstitutional for the government to endorse religion, and to do things that have the tendency to coerce people (even via social pressure rather than the threat of legal sanction) into expressing religious views.

     If you apply these principles to their logical conclusions, "under God" in the pledge is indeed unconstitutional. After all, the government is endorsing all the sentiments in the pledge, and students may feel some social pressure to say it, even if they have the legal right to abstain. You can argue about how great that social pressure is, but it seems no less than the social pressure that the Court found coercive in Lee v. Weisman (1992), which struck down graduation prayers. (The Ninth Circuit originally held that the pledge recitation was both an unconstitutional endorsement and an unconstitutional coercion, but then revised its opinion to rest solely on the unconstitutional coercion grounds.)

     2. Various Justices have at times suggested that the Pledge is indeed constitutional. These suggestions were just relatively unconsidered dictum -- discussions of matters that really weren't at issue in the case -- and are likely to be seen by the Court as having only modest precedential effect. (Technically, they aren't binding precedent, but they do have some force, and after all even a square decision by the Court isn't a binding precedent on future Courts, which can reverse past decisions.)

     3. At the same time, Judge Fernandez's Ninth Circuit dissent makes a sensible argument that the endorsement and coercion tests should not apply to all references to God. America has a long tradition, as he points out, of "ceremonial Deism" -- the use of general and relatively nondenominational references to God (though of course all references to God do prefer some religious beliefs over others) to solemnize various occasions or sentiments. We see it in the Declaration of Independence, in the Star-Spangled Banner, in various other patriotic songs, in nearly all the preambles to state Constitutions, and in other contexts.

     These sorts of references, Judge Fernandez argues -- and Justice O'Connor, an important swing vote in these cases, has generally agreed with this -- should not be seen as unconstitutional, because they are such a firm part of American constitutional traditions. "In my view, the words 'under God' in the Pledge, serve as an acknowledgment of religion with 'the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.'" Wallace v. Jaffree (1985) (O'Connor concurring). Query whether Justice Breyer, who, with Justice Scalia's recusal, becomes an even more important swing vote, will agree.

     4. Even those who sympathize with the Ninth Circuit's decision, or who think that it's no big deal, might be troubled by the risk of the slippery slope. Will courts hold that government-run events can't feature all the stanzas of the Star-Spangled Banner? That they can't have people singing America the Beautiful? Some people might say "yes, and that's good"; but others might be quite troubled by courts forcing the rejection or bowdlerization of important parts of the American cultural heritage (much more important than the "under God" in the Pledge, which has only been around since 1954).

     Now these items can be distinguished from the "under God", perhaps precisely because of their cultural and historical significance. But will they be?

     We have indeed seen a slippery slope towards more and more extirpation of religious symbolism from American civic life (or at least that part that's conducted by the government). It started with the school prayer decisions (1962 and 1963) -- which I think are quite right. It went on to the Ten Commandments (1980), creches (1989), and graduation prayers (1992). Now it goes on to part of the Pledge of Allegiance, even though in the creche case the Court suggested that the Pledge of Allegiance would be treated differently.

     In a legal system that's built on analogy and precedent, principles often expand past the boundaries that even their authors originally urged. It's easy enough to imagine a future court expanding the "no endorsement" / "no psychological coercion" principles to The Star Spangled-Banner, even if we think that these principles shouldn't be so extended. Swing Justices might be worried about this, and therefore conclude that we should draw the line here, and retain the Pledge. Or not . . . .


Pledge prediction: I'm happy to say that this is one of the regrettably rare instances where my prediction about what the Court would do proved correct. The second half of my prediction was that the Court will reverse, and I would have gotten away with it if it hadn't been for that darned Justice Scalia. But now it's not so clear.

     I haven't followed the standing issue closely, so I don't know what are the chances that the Court would just vacate the case because Newdow, as noncustodial parent (I think that's what the problem is), can't complain about the alleged coercion of his child, or the alleged endorsement of religion to his child. But if the Court says there is standing, there's a decent chance of a 4-4 split, which would leave the Ninth Circuit decision on the books, and binding as to the parties, and would thus leave the circuit split in place (so the recitation of the Pledge would be unconstitutional in the Ninth Circuit but constitutional elsewhere). I think Justices Stevens, Souter, and Ginsburg are likely to take the hard-line no-religious-expression route, either on endorsement or coercion grounds. I'm sure Chief Justice Rehnquist and Justice Thomas will see no problem here, and I'm pretty sure that Justices Kennedy and O'Connor won't, either. The swing vote here would probably be Justice Breyer, who seems to have a marginally narrower view of the Establishment Clause than do Justices Stevens, Souter, and Ginsburg.

     If the case does split 4-4, the matter will probably come back up again to the Court in the future; the Ninth Circuit decision will be affirmed by the equally divided Court, but that won't set a precedent in favor of the decision. When that happens, Justice Scalia would likely not recuse himself (that he has commented in the past on the broad issue shouldn't, I think, be disqualifying, by the rather complex and often counterintuitive rules that deal with recusals); and if the next appointments to the Court are made by President Bush, the Pledge will eventually be upheld. But the next case raising this question will presumably take at least a few years to get to the Court again.


Pledge case: Howard Bashman makes some interesting points about today's grant of certiorari:
The Supreme Court of the United States grants writ of certiorari to review the Ninth Circuit's ruling in the Pledge of Allegiance case: This will undoubtedly be today's big news from the Court. Just a few quick observations. First, the Court will not be summarily disposing of this case without oral argument. Second, the Court is not guaranteeing a ruling on the merits, because the first question as to which the Court granted review concerns whether Michael Newdow has standing to pursue the case. Third, there were a total of three cert. petitions pending in this case, and while the Court granted review in one, it took the curious step of denying review in the other two (see pages eleven and twelve of today's Order List, accessible here). Finally, Justice Antonin Scalia recused from the Court's actions in all three cases, demonstrating that he will not be participating in the case, presumably because of his public comments on the merits of the case. I am a bit surprised by Justice Scalia's recusal, but I doubt that it will result in an equally divided Court on the whether the language of the Pledge violates the Establishment Clause. But what if Justice Scalia's recusal resulted in an equally divided Court on the question of Newdow's standing; could the Court then proceed to determine the Establishment Clause issue? Probably so, because an equally divided Court on the standing question would result in the affirmance of the Ninth Circuit's holding that Newdow had standing.
     Incidentally, this shows the value of Justices keeping quiet about contested currently litigated issues -- it's possible (not necessarily very likely, but possible) that without Scalia, the Court would indeed split 4-4 on the merits, and this issue will keep festering until the next case on the subject makes it through. If Scalia's recusal was indeed motivated by his public comments on the merits of the case, that makes the comments pretty expensive. And while there's value in Justices expressing their views in various contexts, it seems to me that such expression about this particular case could have been put on hold by just several months with not much loss for public discourse. (I'm not sure what exactly Scalia's comments were, and I'm not sure whether such a recusal was absolutely necessary even given the comments, but the best guess is that the comments were indeed the reason for the recusal, since I can see no other reason.)


Constitutionalism at George Mason University: I am very sorry to miss Jacob Levy's talk today, he is visiting at GMU, my home institution, and speaking on constitutionalism. I am pleased, however, that GMU Law has recently hired Ilya Somin, a freshly minted Harvard Ph.d. (political science) and J.D. (Yale). Ilya is a real bundle of intellectual energy, and I expect you all will be hearing more from him in the years to come (imagine that, a Russian-born, libertarian-oriented, legal scholar and polymath). I've only just met Ilya but he is very impressive. He writes on constitutional issues, blending empirical political science and legal reasoning.

Here is one of Ilya's papers, he argues that voters are very poorly informed; this paper is literally a gold mine of information about public opinion research, but set in a legal context. His conclusion: common charges that courts are "anti-democratic" do not provide a decisive critique of the judiciary. We need to counterbalance democratic pressures, not reinforce them in every way. Another of Ilya's papers, "Voter Knowledge and Constitutional Change: Assessing the New Deal Experience" (I can't find it on-line) looks at whether the citizenry becomes better informed in times of constitutional change. The answer: no. Ilya, as I read him, , fears that politicians can use times of crisis to manipulate voter opinion.

Monday, October 13, 2003


Suicide hotlines will now be staffed by economists. See how Financial Times advises people. (Admire also the proper use of "whom" in the question, something that I suspect rarely happens in calls to suicide hotlines.)
Dear Economist,

I do not know whom to turn to. A few months ago I discovered that my wife was having an affair with my boss. I lost both wife and job in quick succession. My wife also took the dog. As I cannot afford my mortgage repayments, I am about to lose my house as well. Betrayed and homeless, I feel very depressed. I have become so desperate as to consider taking my own life. Please help.

-- A.W., Dulwich

Dear A.W.,

Don't do anything rash. You are on the verge of making a terrible mistake, albeit one often made by naive practitioners of cost-benefit analysis.

more . . .
Thanks to Lawrence Krubner for the pointer.


Learning crime from a novel: For my "Crime-Facilitating Speech" article, I'm looking for an example of a novel (or a movie or other work of entertainment) that describes, (1) in detail (2) a nonobvious way to (3) particularly effectively commit a crime or escape detection for one's crime, and that is (4) a famous work, or one written by a famous author.

     All four elements must be satisfied, though it's not necessary that someone have actually committed the crime based on this book. Don't mean to seem too picky while asking for help, but I really do need something that meets all these criteria. Movies (such as Natural-Born Killers) that lead to copycat crimes, for instance, don't qualify; the ways of committing crimes that they describe are fairly obvious, and not particularly effective. Works that merely advocate crime also don't qualify. I'm looking for books that have the (usually unintended) potential to make it considerably easier for readers to effectively commit crime. If you have something that meets all these criteria, please e-mail it to me at volokh at Please also include a very brief mention of what the nonobvious crime is, so I can quickly evaluate it without having to read the book. Thanks very much, and sorry to be so picky.


The Task of Amontillado:
The thousand injuries of the young associate I had borne as I best could; but when he ventured to park in my allotted space, I vowed revenge. It must be understood, that neither by word nor deed had I given him cause to doubt my good-will. I continued to smile, and he did not perceive that my smile now was at the thought of his impending inundation.

He had a weak point, though in other regards he was to be respected: he prided himself on his connoisseurship of civil procedure. It was about dusk, one evening during the supreme madness of the hiring season, when I encountered him. . . .
You can find the rest of this, plus "Paradise Lost; New Business Found," "Ulysses, Esq.," "The Law Book of Job," "Portrait of the Lawyer as a Young Man," "A Midsummer Night's Hearing Before the U.S. Patent Examiner," and "Moby Dick, or the 'Whale': A Narrative About, But Not Necessarily Limited to, the Species Enumerated at 50 C.F.R. sec. 224.101(b)(xiv)," here and here. They are written by Kevin Underhill, and brought to you by the incomparable Green Bag (2d). Special bonus: They're all short, as good humor should be. (Thanks to Tim Sandefur for the pointer.)


What does "no means no" mean? Gregg Easterbrook and Dahlia Lithwick debate the "no means no" question in rape. I think that Dahlia's piece is closer to the mark; but what puzzles me in a lot of these discussions is the ambiguity in what the discussants themselves mean by "no" (and thus "no means no"), which can lead either to the parties talking past each other, or sometimes to inconsistency in a party's own argument.

     I would think that both Lithwick and Easterbrook would agree that "no" generally means at least "not right now." I suppose we can come up with hypotheticals (or even real incidents) where no is said the right way under just the right circumstances that it doesn't mean "not right now." But "not right now" is a very good place to start, especially when the parties don't know each other well enough to have any justifiable confidence in their ability to figure out each other's subtle signals. (If Easterbrook doesn't agree on this, then I think he's mistaken, and Lithwick's criticisms are quite sound.)

     I would also think that both Lithwick and Easterbrook would agree that "no" often doesn't mean "no, never" or even "no, not this evening." (It could mean that, but it often doesn't.) In fact, I suspect that most -- though probably not all -- people who make the "no means no" argument would acknowledge that women have a right to change their minds, both from yes to no and from no to yes.

     If I'm right that the "no means no" argument doesn't usually mean "no means never," then Easterbrook's point that "no" may mean "not now, but maybe after more wine" is something of a red herring, and doesn't really help much advance his argument. The simple "no means no" framing has misled him. And if I'm wrong, and most people who argue "no means no" do mean "no means never," then the simple "no means no" framing has misled Lithwick. (I set aside the question of at what point consent is made meaningless by intoxication; I assume the "after more wine" refers to something less than an intoxicating quality.)

     One way or the other, "no means no" seems to be getting ambiguous enough to be not that helpful. What's more, it doesn't really capture the heart of any particular factual debate. I haven't been closely following the Kobe Bryant trial, but I take it that the prosecution's argument isn't "she said no once, so though she willingly had sex with him afterwards, it's still rape." I take it that the defense's argument isn't "she said no, but Bryant immediately began having to sex with her against her will, because he thought she really meant yes." And I take it that even the other critics or defenders of Bryant, who aren't bound by the needs of litigation to make the most aggressive arguments possible, probably wouldn't suggest these scenarios.

     Rather, I suspect the argument would probably be, as I said, that "no means not right now, and he did it right now" or "no means not right now, but after a while she changed her mind." Either side's intellectual argument would, I think, be strengthened if they went beyond the ambiguous "no means no" to something more specific. (I set aside the issue of rhetorical strength, since that's not what I'm talking about here; and I'm sure that Lithwick and Easterbrook aren't just trying to score rhetorical points, either.)

     None of this will solve the problems at the heart of rape prosecutions. Whether it's "no" or "hell, no" or "this is rape" or "yes, yes" eventually followed by a false claim of rape, the trouble is that short of mandatory audio- and videotaping of all sexual behavior there will be tremendously difficult problems of proof in such cases. I have absolutely no solution to that problem; I'd like some miracle that will cause all rapists to be punished with extreme severity, and all nonrapists to be promptly acquitted (or, better yet, not even charged), but when I last checked that didn't qualify as a solution.

     But I do hope that being a little clearer than just "no means no" can help the policy discussions along in some measure. Sexual encounters may be fraught with ambiguity, but intellectual ones need not be.


New Article on John Lott Controversy: In today's Mother Jones is an article by Chris Mooney, Double Barreled Double Standards, providing a nice chronology of the controversy now surrounding the work of John Lott for those who may be unfamiliar with these details. It also provides useful links to the recent studies challenging Lott's work. While this could have turned out to be a hit piece, it seems pretty 'fair and balanced' for a journalistic account. The time is ripe for AEI to conduct a thorough investigation of all these issues--with a panel of accomplished outsiders--given that so many have relied on Lott's conclusions without the expertise to substantiate them for themselves.

There are two additional thoughts that occur to me in the wake of this article. First, in their reworking of the data, Ian Ayres and John Donohue show no decrease in violent crime as famously claimed by Lott and say that the crime figures might even show a slight increase in violence. (Lott always claimed that right to carry laws were accompanied by a small increase in property crimes, which he speculated might be the results of deterrence caused by concealed weapons.) If confirmed, this is indeed a significant revision in the empirical evidence.

But even this data show that right to carry laws do not lead to greatly increased rates of violence as has long been claimed by opponents of such laws. Lott's finding that violence declined in the wake of these laws was a welcome bonus for gun rights supporters, but debunking the hypothesis that violence would increase as a result of right to carry laws was highly significant as well. (Though, until an investigation is conducted by some nonpartisan group, I now place more stock in Ayres and Donahue's results than in Lott's.) This important conclusion seems to survive the controversy.

Second, while many academics claim the superiority of peer-reviewed journals over student-edited law reviews, this incident should give us pause. Lott's initial figures were originally published in a peer-reviewed journal. So was Michael Bellesiles' original probate survey that was subsequently debunked only when it was included in his high-profile book.

In my experience, both types of journals have their advantages and disadvantages. The peer review process tends to eliminate articles not within the mainstream of the profession or articles that lack sufficient originality. This bias tends to suppress rather than encourage diversity of views. And while this screening serves to eliminate some articles containing errors, I doubt most reviewers "run the numbers" or check citations for themselves, unless they happen to run against their own preconceptions. Nor do the editors of peer reviewed journals.

In contrast, for all their well-known limitations, my experience with law reviews is that they really do catch errors in quotations and citations. They also catch errors in reasoning, or require substantiation or clarification of claims. I have found myself adding whole sections of an article to respond to a well-founded question raised by student editors. For example, in my article, The Original Meaning of the Commerce Clause, I added a section on Gibbons v. Ogden in response to a simple question from an editor. Sometimes I will remove a claim or entire section because I think it is not worth the trouble to answer the good questions raised by editors.

The key is to take what student editors say seriously while maintaining one's independent judgment (and not getting annoyed). I know I can always win a real fight with a law review editor but I almost never have to and I can't recall the last time I did not revise my work in in response to some query or insisted on my way in the face of an expressed concern. So long as I resist the suggestions for merely stylistic changes which drain my voice from the work and sometimes introduce new errors in exposition, my articles are invariably inproved by the student editing process.

I should stress that both types of editing have their strengths and weaknesses. My point here is merely to question the smugness that some academics express about peer review as compared with student-edited journals. I, for one, would place more trust in the footnotes in a student-edited law journal that I would, say, in a peer-reviewed history journal.

On the other hand, lacking the expertise to independently evaluate it myself, I trust no statistical analysis until it is widely replicated and accepted (or not rejected) by those who are not sympathetic with the results. The main reason I had accepted the empirical claim that "More Guns Equal Less Crime" is that it had gone so long without refutation by the many academics who were well-motivated to challenge this result. Now that situation appears to be changing. Stay tuned.


Results from jazz album poll: Normblog did a "greatest jazz albums" poll, Miles Davis wins, click here to see the full and excellent list. My votes went heavy for Thelonious Monk and Sun Ra, with a nod to Cecil Taylor, I made no attempt to spread the wealth around. By the way, if you are into music lists, this site,, will ruin the rest of your day.


Religious practice in Oklahoma: According to this story (thanks to Hit & Run for the pointer):
Nashala Hearn and her parents are scheduled to meet with school officials to appeal the 11-year-old's suspension for wearing a hijab in violation of the district's dress code.

She has worn the headdress, which Muslim women wear for religious reasons, since Aug. 18, the first day of class at Benjamin Franklin Science Academy. The school even allowed the sixth-grader to pray between classes, her father, Eyvine Hearn, said.

But on Sept. 11, Nashala said she was called to the principal's office and had to call her parents about the hijab. They were told the headwear violated school policy.

She was suspended Oct. 1 for three days for wearing the scarf. After returning Tuesday from the first suspension, Nashala was suspended for five more days for wearing the hijab to school. . . .

Superintendent Eldon Gleichman isn't backing down. The dress code, which forbids the wearing of hats, caps, bandanas, or other headwear at school, was established to curb gang activity, Gleichman said.

Benjamin Franklin won't show favoritism to any religion, school officials said.

School attorney D.D. Hayes cited a 1998 U.S. Department of Education policy on "Religious Expression in Public Schools."

"Students generally have no federal right to be exempted from religiously neutral and generally applicable school dress rules based on their religious beliefs or practices," the policy reads.

Allowing one student to wear headwear would open the floodgates for other requests, Hayes said. . . .
This is all a very interesting analysis, but one thing is entirely missing from the article: Oklahoma law requires the government to grant exemptions from generally applicable rules to religious objectors -- even if that means running the (probably speculative) risk of "open[ing] the floodgates" -- unless there's a very strong reason for it not to. The Oklahoma legislature enacted this principle in 2000 as the Oklahoma Religious Freedom Act, and it seems to squarely apply here.

     This isn't a question of some rule imposed on Oklahoma by supposedly activist judges, or even by the federal Congress. (The article I cite mentions the 1993 federal Religious Freedom Restoration Act, but that statute has actually been held to be unconstitutional as applied to the states.) Rather, it's a principle enacted by Oklahomans' own representatives a mere three years ago. Unfortunately, though, neither the school district nor the newspaper seems to know or care about that. Everyone seems to be focused on federal law (which indeed probably doesn't give the student any rights to an exemption), but ignoring Oklahoma's own statutes. (For more -- perhaps too much -- on state religious freedom statutes, see here.)


Working Hard or Hardly Working? My family and friends like to tease me about how I supposedly work so little, given that I only teach a few hours a week, twenty-eight weeks a year. The fact that I find time to blog just adds to their amusement. It's true, of course, that my academic schedule is very flexible. But I have to admit that I sometimes get exasperated when non-academic acquaintances assume that my job consists primarily of preparing for class and teaching, and that I lounge around the rest of the time. Here's a list of my publications since 2001:
The New Wigmore: Expert and Demonstrative Evidence (Aspen Law & Business forthcoming 2004) (co-author)
“You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws” (Cato Institute 2003)
“Expressive Association After Dale," Social Philosophy and Policy (forthcoming Spring 2004) (symposium)
“Daubert in the States,” Jurimetrics (forthcoming Spring 2004)
“Lochner's Feminist Legacy,” 101 Mich. L. Rev. 2140 (2003) (review essay)
“Lochner's Legacy's Legacy,” 92 Tex L. Rev. __ (forthcoming 2003)
“Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” 82 Geo. L.J. __ (forthcoming 2003)
“Defending Civil Liberties from Antidiscrimination Laws,” 82 N.C. L. Rev. ___ (forthcoming 2003) (essay)
“The Lochner Story,” in Constitutional Law Stories (Michael Dorf, ed. forthcoming 2003)
“Improving Expert Testimony in the Asbestos Litigation,” Pepperdine L. Rev. (forthcoming 2003) (symposium)
"The Right to Petition Government" in The Heritage Guide to the Constitution (forthcoming 2003)
“Improving the Qualifications of Experts in Medical Malpractice Cases,” 1 Law, Probability & Risk (2002) (essay)
“Review of Barbara Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920,” American Journal of Legal History (forthcoming 2003)
“Review of Michael J. Phillips, The Lochner Court Myth and Reality: Substantive Due Process from the 1890s to the 1930s,” Law and History Review (Spring 2003)
“Review of Richard C. Cortner, Civil Rights and Public Accommodations: The Heart of Atlanta Motel and McClung Cases,” Ideas on Liberty (Oct. 2002)
“Disinterested in Daubert: State Courts Lag Behind in Opposing "Junk" Science, Washington Legal Foundation,” Legal Opinion Letter (June 21, 2002)
“Robert A. "Peg-Leg" Williams,” in Melvin Urofsky, ed., One Hundred Americans Making Constitutional Law (forthcoming 2004)
“Buchanan v. Warley,” in The Encyclopedia of Southern Culture (forthcoming 2003)
“Emigrant Agent Laws,” in The Encyclopedia of Southern Culture (forthcoming 2003)
“Junk Science in the Asbestos Litigation,” Mealey's Asbestos Reporter (Sept. 2002)
Review of Julie Novkov, “Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years,” ( historians' listserv).
“Junk Expert Testimony: The Battle Rages On,” 3 Engage: The Journal of the Federalist Society's Practice Groups 112 (2002).
“Tort Reform Lessons,” Aetna 2001 Annual Report (2002).
“Disinterested in Daubert: State Courts Lag Behind in Opposing ‘Junk’ Science,” Washington Legal Foundation, Legal Opinion Letter (June 21, 2002).
“Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test,” 41 Jurimetrics (2001).
“The Right of Expressive Association and Private Universities’ Racial Preferences and Speech Codes,” 9 Wm. & Mary Bill Rts. L.J. (2001) (symposium).
“Anti-Discrimination Laws and the First Amendment,” 66 Mo. L. Rev. 83 (2001) (symposium).
Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press, 2001).
I count three books (one co-authored), five law review articles, four additional invited symposium articles, three law review essays, two book chapters, four book reviews, two encyclopedia entries, two think tank studies, and four miscellaneous publications. Oh, and throw in five or six op-eds, too, as well as speeches at conferences, academic-related blogging, refereeing for peer-reviewed journals, and commenting on colleagues' papers. I probably work significantly harder now than I did as a (bored) young lawyer at a big firm. This stuff doesn't write itself.


"Shall not justify": A bit more on the Missouri concealed weapons controversy -- recall that the Missouri state court held that the right to bear arms section of the Missouri Bill of Rights,
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.
actually itself prohibits the wearing of concealed weapons, and essentially requires the legislature to outlaw concealed carry. The second clause isn't just seen as a limitation on the constitutional right (the constitution doesn't protect concealed carry), but as a limitation on private behavior (the constitution actually outlaws it).

     So here's another provision that also has very similar language, the religious freedom section of the same Missouri Bill of Rights (emphasis added):
That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his religious persuasion or belief, be rendered ineligible to any public office of trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his person or estate; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.
Does that mean that every time someone engages in religious practices that are "inconsistent with the good order, peace or safety of the state," that behavior is itself not just constitutionally unprotected, but unconstitutional? Say the state legislature decides not to prohibit certain practices that, in the view of a judge, are "inconsistent with the good order, peace or safety of the state" -- may the judge mandate that such practices be prohibited?

     I'm pretty sure that we wouldn't say this. Rather, we'd say that such practices aren't constitutionally protected, and the legislature may choose to outlaw them -- but that it's still up to the legislature to decide whether or not to outlaw them. "[T]his section shall not be construed to excuse . . . nor to justify [X]" isn't the same as "[T]his section itself prohibits [X], even if the legislature wants to choose to permit it." And the same, I think, goes for the right to bear arms provision.

Sunday, October 12, 2003


Interesting post-9/11 appellate decision related to anti-American Islamists: An interesting decision, which seems right (subject to the inevitable uncertainty about what precisely the defendant said). The defendant and her fellow passengers were pulled over at gunpopint on 9/11, based on a report that three people were driving on 9/11 wearing Islamic-looking robes. When she was being arrested, the defendant apparently said said “I am Maja Hadine [sic],”; “I am a warrior of Allah,” “I am at war with you and America,” and “Death to America." One police officers also said that the defendant said she would kill them, and another also heard her say that she could kill them, or wanted to kill them (which in context likely would sound like a death threat). (See here and here for pointers to news accounts about the trial and about a civil lawsuit filed against the police by the other passengers.)

     The court held (I think correctly) that the initial arrest was unconstitutional, and that the general "Death to America" / "at war with" / "warrior" statements were not punishable as threats. The court affirmed the conviction only based on the defendant's statements to two police officers that she would kill them (or at that she could kill them or wanted to kill them, which in context likely would sound like a death threat). The sentence? "The [trial] court found appellant guilty of aggravated menacing and sentenced her to one hundred eighty days in jail with all but eight days suspended but with credit for time served. She was placed on unsupervised probation for two years, ordered to pay $106.70 in costs, and prohibited from having unofficial contact with the Belmont County Sheriff’s Department." (According to press accounts, the 8 days were apparently what she had served before trial.)

     All in all, this seems to be (again, assuming that the police officers' account was accurate) a pretty decent showing for the court system. The police erred in the original arrest; the court didn't apply any relaxed constitutional standard in evaluating this arrest, even given that this happened on the day of the attacks. The court also held, I think quite correctly, that the general statements that revealed the defendant to be one of the nation's enemies, who sought "Death to America," were not illegal.

     The court also correctly found that more specific statements threatening to kill particular people were punishable (citing, incidentally, an anti-abortion terrorism case, Dayton v. Dunnigan, 103 Ohio App.3d 67 (1995), where "the defendant’s aggravated menacing conviction was upheld where he asked abortion clinic employees whether they had bullet proof vests and made reference to a Florida shooting at an abortion clinic"). And the sentence -- basically, 8 days of jail time plus two years' unsupervised probation and a small fine -- seemed to be relatively modest, given that the crime involved a death threat. The court apparently resisted the urge to punish the defendant particularly hard because she had revealed herself to be an enemy of our country who apparently endorsed violent attack on its citizens. Again, it's hard to tell for sure exactly what happened, just from an appellate court opinion and a few news stories; but it does seem like, on balance, despite the error (understandable, I think, but still an error) by the police in the original arrest, the judicial system treated defendant quite fairly. If anything, an 8-day sentence for threatening to kill someone (even under provocation) seems fairly light.


We are not worthy! According to a California newspaper,
Aides to Sen. John Vasconcellos confirmed the liberal San Jose Democrat called Republican Gov.-elect Arnold Schwarzenegger "a boob," said voters "made a mistake," and announced that when the Legislature reconvenes in January, "I'm not sure I'll go back."

Other liberal legislators, from the Bay Area and elsewhere, apparently are thinking about skipping Schwarzenegger's January State of the State address -- his blueprint for working with the Legislature to tackle California's deficit and other woes -- because they believe he will have nothing to tell them. . . .

Vasconcellos . . . told a Bay Area TV station Tuesday night, "If people want this actor to govern . . . they don't need or deserve me."

Vasconcellos, who would be termed out at the end of 2004 after serving 38 years in the Legislature, declined to talk directly with ANG Newspapers on Wednesday. . . .
We are not worthy, Senator! Give us the punishment we so richly deserve; resign, and thereby show us the error of our ways.

     On a more substantive note,
"It's very upsetting to somebody like John, who's devoted the kind of time he has to public service," said Vasconcellos spokeswoman Sue North.

"When Arnold first announced that he was going to run, John said to me, 'I wonder how he'd feel if I announced to him that I was going to direct his next movie,' " North said.

"How do people think that they can simply move into a situation like this with absolutely no experience and no knowledge of what's going on?" she said.
     Now this is a not implausible criticism in the abstract -- governing is a skill, and like all skills is probably helped by experience. Even if much of the policymaking and management can be (and has to be) delegated to experienced subordinates, the governor still has to be able to make the ultimate decisions, and a novice politician may make more errors in making such decisions than an experienced one would.

     Yet, first, Gray Davis, who seems to be as experienced as they come, seems to have fumbled things pretty badly; and the California Legislature, also filled with some pretty experienced people, apparently hasn't done a much better job. And second, if the product of over 37 years of experience and knowledge is petulance, spite, name-calling, and refusal to deal constructively with the voters' choice, then isn't that itself evidence that political experience may be somewhat overrated (or at least that it may be accompanied by some rather unfortunate side effects)? I doubt that a novice politician would approach things quite the way Sen. Vasconcellos is doing.


Replacing Social Security with individual retirement accounts is obsessive militant lunacy? And quality college education as a fundamental right and eliminating the use of pesticides isn't? (Link via Mark Kleiman.)


Missouri Constitution and concealed carry laws: Clayton Cramer has a persuasive and detailed response to the Missouri trial court decision striking down Missouri's concealed carry. According to press accounts, the court held that the last part of the provision
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons
actually prohibited concealed carry, even in the face of a legislative judgment that some people should be allowed to carry concealed. But this seems to be the wrong way of reading the provision. The second clause says that this article of the state bill of rights does not by itself "justify" a right to wear concealed weapons. It does not say "but the wearing of concealed weapons shall be illegal" or "but the legislature shall have a duty to outlaw the wearing of concealed weapons." The provision leaves the legislature free to ban concealed weapons, but it doesn't require such a ban.

     Cramer, who is a leading historian of 19th-century rights to bear arms provisions, supports this point with citations from late 19th century Missouri decisions. I expect that the trial court decision will be promptly reversed on appeal.

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