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Saturday, December 13, 2003


Seeking information on ancient Rome: I am looking for items that match all of the following conditions, and I'd love some help, if any of you would be kind enough to provide. Which items (products or processes) satisfy all these criteria:
  1. They were unknown to people in ancient Rome circa 150 B.C.

  2. They could be manufactured with then-existing technology and then-available raw materials.

  3. They would be at least modestly useful in that era.

  4. Even a nontechnically minded person today -- say, a smart 12-year-old -- would know how to make and use them.

  5. Their absence would be pretty clearly visible.
     One example is the stirrup: It apparently wasn't introduced into Europe until many centuries later; it's not hard to make; it can be quite useful for riders, and very useful for mounted warriors; anyone who knows they're possible and useful can know more or less how to make them; and if you see a rider without stirrups, you'll probably notice something wrong. I have heard it said (though I am less certain of this) that whipped cream was also unknown in Rome, but I'm not sure whether efficient whisks could be easily made using the metallurgy of that era. The technique of using cowpox as vaccination against smallpox also qualifies, since many laypeople today are aware of it, and aware that it was invented only several centuries ago. Penicillin might qualify, I think; most people know that it's bread mold, though I'm not sure whether just any old bread mold would do, and also how much treatment it needs to be useful.

     In any event, you get the point. As I mentioned, I need something that satisfies all the conditions. If it just satisfies most of them, that's not enough for me. If you have any tips, please e-mail them to volokh at . If the accuracy of the answer isn't obvious -- for instance, if it's surprising that the Romans didn't have this -- please also pass along some sources establishing the accuracy, if you have them. Thanks very much!

UPDATE: Here are some more that I knew of that I had forgotten to include: (1) arabic numbers (actually, my favorite example), including the concept of zero as a number, (2) sterile technique for surgery and wounds, (3) distillation, the basic principles of which many, though probably not most, people know, (4) the printing press (though presumably that would take tinkering to find suitable inks), and (5) the scientific method, though I suspect that many Roman engineers grasped it intuitively, but just didn't institutionalize it.

     Some suggestions that I hadn't heard of before that seem promising: (1) the horseshoe (though there's some controversy about when it was invented), (2) the toothbrush (especially if one can find suitable bristles, but I'm sure that's possible), (3) the compass, if one can find a magnet to magnetize the needle (don't tell me about other tricks for magnetizing it; the only thing a typical smart adult is likely to know about is using the magnet), and (4) the wheelbarrow. (Sorry not to give credit to people, but most of these were submitted by many people.)

     Common suggestions that don't seem to fit the criteria: Glass lenses (for eyeglasses, telescopes, and more) would be great, but I understand that the ancient Romans of 150 B.C. did not have clear glass -- am I mistaken? Gunpowder would not, I think, qualify; most people don't know the ingredients, and even if they know it's charcoal, sulfur, and saltpeter, they don't know what saltpeter is. (Don't tell me what it is -- the important point is that most people wouldn't know it.) Nor would various horse plow collars that people mentioned, no matter how useful they might have been; not common knowledge enough today, I think, nor would the typical smart modern person be likely to think them up.

     Geographical knowledge would be good, but unfortunately most of the general stuff that we know (there's America out there!) wouldn't be immediatley useful to the Romans, and most of the useful stuff (sail this many miles in this direction to get to this particular place) we generally don't know. Seriously, how accurate a map of the world can you draw from memory?


The First Pocket Calculator: The January Scientific American has a terrific article about the invention of the CURTA calculator, the first calculating machine that could both do arithmetical operations (including square and cube roots, to 11 significant digits) AND was truly portable (the approximate size and shape of a pepper grinder). Aside from the fact that it was an absolutely magnificent piece of mechanical engineering -- it used no electricity, and consisted entirely of a magnificent series of gears, cranks, levers, carry pins and the like) -- and a true milestone in the history of computing devices, the story of its invention is extraordinary. Curt Herzstark, the inventor, came up with the desing while imprisoned, and working as a slave laborer, in the Buchenwald concentration camp. File under "triumphs of the human spirit under unspeakable conditions."

Friday, December 12, 2003


Shamelessness upon shamelessness: According to the Associated Press,
A school board said it won't apologize for punishing a boy who said his mother is gay, insisting the boy was disciplined for behavioral problems, not using the word "gay." . . .

The Lafayette Parish School Board voted 5-3 Thursday night that it was "never the intent or purpose" to discipline the child for having used the word "gay."

The school board offered no further explanation.

ACLU lawyer Ken Choe expressed disappointment and said no new evidence had been produced to suggest that the boy had been punished for any reason other than the one given in the form. . . .
Refresh your recollection of the case by looking at the forms that the school sent to the parents, explaining exactly why the boy was being disciplined, here and here (or, if that doesn't work for you, here and here). Then ask yourself: Is the Lafayette Parish School Board majority morally fit to direct children's education?

     Incidentally, the CNN page containing the story again lacks any pointer to the smoking gun documents -- even though you'd think that they'd be very helpful to readers who are trying to figure out who's telling the truth here, and that they'd therefore make the story more valuable. These sorts of links ought to be good for the public, good for the news media, and good for the search for truth. As I asked before, why aren't they routinely included in news stories?


Iain Murray on Kyoto and the UK: Iain Murray passes along the following apropos the recent posts on Kyoto and the UK:
Britain’s shift from coal to natural gas wasn’t even primarily an economic decision but a political one. During the 1970s, the National Union of Mineworkers held Britain hostage, partly causing the downfall of Ted Heath’s government in 1974 and then presiding over the period of trade union dominance that the British people revolted against when they elected Margaret Thatcher in 1979. Even with her at the helm, the NUM, now led by the ultra-left Arthur Scargill, won a confrontation with her early in her ministry. But the NUM lost the titanic struggle in the great Miners’ Strike of 1984-5, after which Mrs T was able to break the power of the NUM forever by first privatizing the coal industry, then beginning the “dash for gas.”

I find it ironic to think that, if Mrs T had lost the confrontation with Scargill, Britain would almost certainly have taken the lead against the Kyoto protocol, with King Arthur reminding the people that he was not going to allow any international pressure to put in jeopardy the jobs and communities of Britain’s coal miners.

I have a little more to say on the way Europe stacked the Kyoto protocol in its favor in an article for NRO that you can find here.


Convoluted courts: The Pentagon Papers case (New York Times Co. v. United States) didn't involve a hard-to-decipher lineup, though its legal rationale (if there is one) is hard to decipher -- because the 9 Justices produced 10 opinions. And none of the Justices was even Jewish.


Convoluted Courts: I commented yesterday on the rather difficut-to-decipher lineup of the nine Justices in the campaign finance case. Thorne Loggins sent me this beauty, a true classic of the genre, from a decision of the full Fourth Circuit Court of Appeals (United States v. Rhynes, 218 F.3d 310 (2000)):

Judgment vacated and new trial awarded by published opinion. Judge KING announced the judgment of the Court, in which Judge WIDENER, Judge WILKINS, Judge LUTTIG, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ, and Judge TRAXLER joined; wrote the opinion of the Court with respect to Part III, in which Judge WILKINS, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ, and Judge TRAXLER joined; wrote the opinion of the Court with respect to Parts IV and V, in which Judge WIDENER, Judge WILKINS, Judge LUTTIG, Judge WILLIAMS, Judge MICHAEL, Judge DIANA GRIBBON MOTZ and Judge TRAXLER joined; and wrote an opinion with respect to Parts I and II in which Judge WIDENER (except perhaps for a footnote), Judge LUTTIG (in part), Judge MICHAEL, and Judge DIANA GRIBBON MOTZ joined. Judge WIDENER wrote an opinion concurring in part and concurring in the judgment. Judge WILKINS wrote an opinion concurring in part and concurring in the judgment, in which Judge WILLIAMS and Judge TRAXLER joined. Judge LUTTIG wrote an opinion concurring in part and concurring in the judgment. Chief Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER joined. Judge NIEMEYER wrote a dissenting opinion, in which Chief Judge WILKINSON joined and in which Judge TRAXLER joined with respect to Parts I and II.
And in Judge Widener’s separate opinion: "I concur in the result and in Parts I, II, IV, and V of Judge King's opinion, except, perhaps, n. 11, maj. at 320, and will explain below. . . . So far as this concurrence may be at odds with it, then, I may not agree with n. 11."


A transsexual divorce story: Reader James Glackin writes:
I was reading your post on the Iowa lesbian divorce. My first year out of law school, I was helping one of the more senior members of the firm on a divorce. The catch was, the husband had started the process to become a woman. When the judge came into the court room and saw two women, one plantiff and one respondent, I thought I saw steam come out of her ears. She was not happy and was about to unload on counsel until they explained the situation. Since the case was in Lawrence, Kansas, she thought that they were trying to take advantage of Lawrence's reputation as a liberal mecca on the plains. What did I learn that day? You wanna keep your hide intact, notify the judge of anything that may be out of the ordinary in a case. Judges don't like surprises.


Polluted Coverage: Gregg Easterbrook notes notes that when the Bush Administration decides to "relax" regulatory standards, it's big news, but when the Bush Administration adopts new regulatory initiatives, no one cares (or else they distort the story, as happened with New Source Review (see also here)).

Expect a replay of this when the Administration formally proposes the first-ever regulations of mercury emissions next week. Two proposals will be issued: A conventional command-and-control technology standard preferred by environmental activists and a market-based "cap-and-trade" proposal. The latter was leaked and beat up on by environmental activist groups last week, but don't expect any kind words about the companion proposal when it's issued as well.


Lesbian divorce in Iowa: My friend Arvin Tseng points me to this story:
A county judge approved a divorce for a lesbian couple who obtained a civil union in Vermont, saying he didn't realize he was signing a settlement for a same-sex couple, but ultimately decided to let his decision stand.

Iowa is one of 37 states whose law bans same-sex marriage. . . .

[Judge Jeffrey] Neary, who was appointed in January by Gov. Tom Vilsack, said he had the opportunity to change his mind but decided against it -- the divorce was permissible, he said, under a constitutional clause that requires states to recognize laws of other states.

"If I'm presented with a dispute that has to be resolved in my courtroom, or is before me that affects the rights of Iowans, I feel an obligation to solve that problem," Neary said. "I don't believe I'm recognizing same-sex marriage." . . .

Judges in Texas and Connecticut have rejected requests for civil union divorces, said University of Iowa law professor Ann Estin. . . .

Daniel Bray, an Iowa City lawyer and chairman of the Family Law Section of the Iowa State Bar Association, said the law is clear that marriage can only exist between a man and woman in Iowa.

"A divorce can be entered only when there is a valid marriage," he said.

At the same time, Bray said, Neary acted appropriately -- in this case, he signed a settled agreement, and it wasn't incumbent upon him to determine the participants' gender. . . .
     The glib response is that opponents of homosexual marriage should be happy -- one fewer homosexual marriage! But of course that has to be just a facetious answer; naturally, the concern of the opponents is that anything that treats homosexual marriages as marriages, even a divorce decree, helps increase the chances that they will become broadly recognized.

     Here, I'm not sure whether the judge's decision was outside the letter of Iowa law. Iowa law declares same-sex marriages void (not definitionally not marriages, but rather void, like incestuous or underage marriages are void), but it doesn't necessarily follow that one can't dissolve a void marriage. I remain agnostic on that, though if I had to choose, I'd defer to the judgment of Mr. Bray.

     But I do think the judge was quite wrong to say that "the divorce was permissible . . . under a constitutional clause that requires states to recognize laws of other states." Even setting aside the various reasons why out-of-state marriages may not have to be recognized under the Full Faith and Credit Clause, even if they had to be recognized, it doesn't follow that Iowa would have to allow their dissolution. Nothing in the Full Faith and Credit Clause requires Iowa to dissolve any marriages for which the legislature chooses not to allow divorces.


Probable cause and affirmative defenses: Several readers e-mailed me to suggest that it's OK for the police to arrest someone who clearly killed someone, even if seems very likely that the killing was in self-defense. Self-defense, they argue, is an affirmative defense, which is to say that at trial the defendant has to plead it and introduce some evidence of it. Therefore, the probable cause inquiry should focus only on the case-in-chief, not the affirmative defense.

     I don't think that's right. The Fourth Amendment is generally described as forbidding arrests unless there's probable cause to believe that a crime has been committed. If the police officer has probable cause to believe that someone has been killed, but no probable cause to believe that the killing is unlawful, then the Fourth Amendment test isn't satisfied.

     I did a quick search to see what the courts have said about this, and found very little. The one case that's squarely on point is on my side, but it's only a federal trial court case, Dietrich v. Burrows, 976 F.Supp. 1099 (N.D.Ohio 1997):
The test for probable cause is not whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect is committing an act that would be a criminal offense but for the fact that the actor has a valid affirmative defense. The test is whether the officer is reasonable in believing that the actor is in fact committing a criminal offense. Since the arresting officers had actual knowledge that the Dietrichs had a valid affirmative defense to the crime of carrying concealed weapons, the facts and circumstances did not warrant a belief that the Dietrichs were committing a criminal offense.
So I admit this isn't the strongest precedent -- but I know of no contrary ones, and I think that the case is consistent with how the Fourth Amendment rule is usually described.

     This, though, of course also leaves the question whether a reasonable police officer might still have had probable cause to believe the killing was unlawful. Jeff Sterling, for instance, takes this view (as well as the view that the probable cause inquiry shouldn't consider affirmative defenses). But if the press account is correct, then it's hard for me to see this. The woman says the man had broken into her apartment; even if they didn't trust her, there was presumably physical evidence of that. Texas law views self-defense quite broadly. (Just to give an example, it's even generally lawful to use deadly force to prevent someone from imminently damaging your property at night -- something that I believe is generally not lawful in many other states -- if deadly force seems the only realistic means to do so; Texas is pretty hard-core on this stuff.) I would think that, absent some evidence to the contrary, the situation in that case pretty clearly points to self-defense.

     Silver writes: "The dead man looks like a bad guy. But is it possible he just went there to talk? Not likely, I'll admit. But it is possible, and if it's true, then the wife ([Battered Woman Syndrome] aside) is a murderer." But the test for probable cause is not mere possibility; it's probable cause. If the police think that it's possible (though not likely) that someone is a criminal, they are free to investigate the person to try to develop probable cause. The Fourth Amendment, however, forbids them from arresting the person based on mere possibility.

UPDATE: Referring to the article mentioned in the original post, reader James Guinivan writes:
So "[p]olice say they didn't have a choice" and "it's up to the district attorney and the grand jury to decide about charges based on whether it's justifiable circumstances"?

I take it from this that if a police officer is attacked by a perp in the course of duty, and shoots the perp dead, then he or she is arrested and thrown in jail by others on the force? After all, they have no choice, right?

If, on the other hand, the police officer is simply put on administrative leave with pay pending investigation (as is done in most other jurisdictions that I'm aware of), then it would appear that the police do "make such decisions in the field" after all.


Equal treatment as hostility to Christianity? Eric Rasmusen also chimes in with the view that elimination of preferential treatment for Christianity -- the provision of equal treatment to other religions, or to the nonreligious -- is somehow hostility to Christianity. Here's the core of his argument:
The essential thing here is our starting point: America as a Christian country. If we begin with a country in which some states have established Christian denominations, and all of them are pervasively religious, and often specifically Christian -- with Christmas, Easter, Sunday, and Thanksgiving as holidays, oaths sworn on Bibles, prayer in public schools, tax exemption for churches, and so forth -- then a switch to neutrality on religion is a blow to Christianity. . . .

If our starting point was an atheist regime that persecuted religion -- like Red China -- then moving to state neutrality would be pro-Christian, not anti-Christian. But starting with a religious regime that promotes religion, moving to state neutrality is anti-Christian. . . .
(Rasmusen has more points -- check out his post -- but this, I think, is the heart.)

     As I mentioned, I think you can tell a lot about a worldview by seeing what is sees as "hostile" to something or "anti-" something. Consider tax exemptions for churches. According to Prof. Rasmusen, holding that such exemptions should also be extended to synagogues, is "anti-Christian," and presumably also "hostile to religion" (a term Prof. Rasmusen uses earlier in his post).

     How exactly is requiring equal treatment for all religions "anti-Christian"? We wouldn't say that requiring equal treatment for blacks and whites, after an era in which whites were the beneficiaries of formal discrimination, is "anti-white." (I'm specifically not talking here about supposedly remedial discrimination against whites -- only about equal treatment.) Why is requiring equal treatment for all religions "anti-Christian"?

     Or how exactly is letting people swear oaths on the holy books of their choosing, or letting them simply affirm rather than swearing, "anti-Christian"? It actually strikes me as perfectly sensible -- you want the oath to be seen by the oathtaker as morally binding, so why would you want a Hindu swearing on a book that he doesn't consider holy? But in any event, an evenhanded swear-on-your-own-holy-book (or affirm if you find no books to be holy, or if you oppose swearing on other grounds) isn't hostile to Christianity.

     Now it turns out -- as my original post made clear -- that some of the Court's decisions have been hostile to religion, because they've mandated discrimination against religion. These are wrong, and I have argued against them. The proper approach, I think, is equal treatment of all religions (and of the nonreligious), not discrimination either in favor or against them. But even if one concludes that the Constitution doesn't command such equal treatment, the equal treatment is simply not anti-Christian.

     GOVERNMENT SPEECH: One important point, though: As I also mentioned in my earlier post, there is indeed a credible claim that the Court's restrictions on government speech involving religious symbols (such as prayer in public schools, creches in public places, "God" in the Pledge of Allegiance) is hostile to religion. The difficulty is that where government speech is involved, allowing favoritism towards religion is preference for religion, and generally preference for a particular religion (again, whether or not one thinks that such preference is permissible) -- but requiring the government to not say anything religious can quite plausibly be seen as hostility to religion, since the government can then say anything except religious things.

     True equal treatment is possible as to tax exemptions, as to qualification for office, as to oaths or affirmations, and as to funding programs. It may not be possible as to government speech. This story about the Indiana University (Indianapolis) School of Law Christmas tree provides a good example of the difficulty (thanks to reader Ed Swaine for the pointer):
Law Professor Florence Roisman was the first to complain about the original tree. Even undecorated, she said, it was a symbol of Christianity on government property.

"The tree is placed there to celebrate a Christian holiday -- it is not put there in the middle of summer," said Roisman, who is Jewish. "To honor one religion and not honor others is exclusionary. This is unacceptable at a place that presents itself as inclusive of all people."

The Supreme Court disagrees. It has ruled Christmas trees are secular symbols of the holiday. At the same time, the court said putting up trees in a public place gives any other group the right to place a holiday symbol there. . . .

[Dean of Students Tony] Tarr said his decision to remove the original tree wasn't based on the law. He was trying to be sensitive to some student complaints. Roisman said she would have preferred several different displays and thinks the new one [which involves a smaller tree and some reindeer] is just as offensive.

Many law students also said it would have been better to have several exhibits than no religious display at all.

"Removal of that tree is more symbolic than it being there," said Kenneth Allsop, 25, a first-year law student from Utah who described himself as a Christian. "If you want to be inclusive, you shouldn't be taking things down."

"This is (political correctness) gone crazy. It's beyond ridiculous," said Matt Nicholson, a 23-year-old first-year law student from Marion. . . .
     I actually think the Court is right, and that the Christmas tree should not really be seen as a religious symbol -- it's associated with a religious holiday, like lights, eggnog, the Easter Bunny, and marshmallow peeps (yum!) are associated with religious holidays, but that's not enough to make it an endorsement of religion. But even if it were a core religious symbol, Mr. Allsop's view is quite plausible: Even if putting it up seems like a religious statement, taking it down seems like an antireligious one, precisely because taking it down means that the government may communicate all symbols but not religious ones.

     But while I sympathize with the argument that some court decisions in this area have indeed been anti-religious, I think it's very important to limit the argument to those decisions that indeed merit this criticism. Decisions that simply require the government to treat people and organizations equally whether or not they're Christian, Jewish, or anything else reflect a requirement of equality -- not hostility or anti-Christianity.


New spam scam: Just got a variant on the Nigerian spam scam, but with a twist: It purports to refer to someone who has the same last name as I do. "I now seek your consent to present you as the next of kin of the deceased since you are from the same country so that the proceeds of this account can be paid to you and then you and me can share the money in an agreeable percentage that we shall reach as we progress." Creativity -- I like that in a scam artist.


The church militant:
A 64-year-old minister shot a man dead on church grounds after the assailant attacked him and his son-in-law with a poker amid a string of assaults in an apparent drug-induced frenzy, police said on Wednesday.

The attacks on the minister and the five other people began on Tuesday when Corey Adams, 30, was denied the use of a telephone in the office of a low-income housing project.

In quick succession, Adams is suspected of striking and robbing an acquaintance standing nearby. He then attacked the apartment manager, an exterminator and an insurance agent, Henry Vance, 54, who was critically injured and still hospitalized, police said.

The Rev. Arthur Ford, one of six people attacked, got a handgun from his living quarters at the inner-city church where he is pastor and fatally shot Adams, police said.

Adams entered Ford's residence at The House of Prayer of the Apostolic Faith, took a poker from the fireplace and began beating the minister, and then the clergyman's son-in-law. . . .
Good for the minister -- and good for his son-in-law and the other people whom the maniac might otherwise have injured or killed. Turning the other cheek has its time and its place, and this wasn't it. Thanks to Dan Gifford for the pointer.


Arrested for legal self-defense? The Corpus Christi Caller-Times reports:
Police, prosecutors and women's advocates acknowledge that the public might find it strange that Noelle Richardson is facing a murder charge in the shooting death of her estranged husband.

After all, police say he broke down the door the night before she had a court date to seek a restraining order. Records show that he had stalked her and beat her before.

"The cops don't worry about self-defense," First Assistant District Attorney Mark Skurka said Wednesday. "They have to determine if a homicide took place."

Police say Richardson, 22, shot 23-year-old John Washington Richardson on Monday night with a 9mm semiautomatic handgun that police suspect he gave her before the couple separated. Investigators said Richardson shot him in the face after he broke into an apartment on O'Grady Drive, and that when he kept advancing she shot him again in the side. . . .

Police say they didn't have a choice but to arrest Noelle Richardson, despite what appeared to be an attempt to defend herself.

What happened to John Washington Richardson is homicide according to state law, said Lt. Rocky Vipond, the investigator who made the choice to arrest Noelle Richardson. Whether intentional murder, negligent homicide or manslaughter, Vipond said, police officers don't make those decisions in the field.

"Not everyone agrees, but I made a decision based on my belief that it's up to the district attorney and the grand jury to decide about charges based on whether it's justifiable circumstances," Vipond said. . . .

John Washington Richardson had a history of violent behavior against his wife, and it wasn't the first time he had broken into a residence where she was staying. Police said Tuesday that he was discharged from the Navy for ongoing domestic violence, in addition to several local police reports made against him by his wife. . . .
     I'm pretty sure that this is wrong. The police can only arrest someone if they have probable cause to believe that a crime has been committed. Homicide in self-defense is not a crime -- not intentional murder, not negligent homicide, and not manslaughter. Unless they have probable cause to think that it wasn't self-defense, which the article does not suggest, then an arrest violates the Fourth Amendment.

     Bringing the case before a grand jury, I think, may be a different matter: It's the grand jury's job to determine whether probable cause existed, and it seems to me that a prosecutor may decide that, regardless of his own views, he should leave the question to the grand jury (though I tentatively think that the better course is not to even bring before the grand jury cases that the prosecutor thinks weren't crimes, at least unless he thinks they're very close calls). But an arrest actually requires probable cause to believe a crime, not a perfectly legal act, was committed. (Thanks to Dan Gifford for the pointer.)

UPDATE: More on this above.

FURTHER UPDATE: Reader Jason Wolfkill points out that the prosecutor was acting permissible, at least under Texas law; under Tex. Penal Code sec. 2.03(b), "The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense." I still think it might be better for prosecutors not to bring before grand jury cases where they think the defendant is pretty clearly innocent, because she acted in self-defense; but at least Texas law does let prosecutors do this. I think this does not, however, affect the Fourth Amendment analysis of when police officers may arrest someone.


My Law and Literature syllabus for the Winter/Spring semester: The Torah
Aeschylus: The Oresteia, translated by Robert Fagles
Shakespeare: Winter's Tale
Isaac Asimov: I, Robot
Henry James: The Spoils of Poynton, Aspern Papers
Herman Melville: "Bartleby, The Scrivener"
Franz Kafka: "In the Penal Colony"
F.E. Peters: Islam, A Guide for Christians and Jews
Norman Mailer: The Executioner's Song

And yes, this year we are doing some films:

The Thin Blue Line
High Noon
Paths of Glory
The Sweet Hereafter

Thank you all for your previous suggestions, of course I cannot use all of them but in fact I am storing many up for the future.

Thursday, December 11, 2003


One problem with a simple "hostility to Christianity" interpretation of a complex body of law is that one starts missing things that don't fit the pattern. In an earlier post, I faulted Clayton Cramer for characterizing Torcaso v. Watkins, where the Court struck down discriminatory exclusion of atheists from various offices, as a manifestation of the Court's "hostility to Christianity." Equal treatment, I argued, is not hostility to Christianity.

     Clayton Cramer now responds:
Professor Volokh thinks I am a bit over the top on the "hostility to Christianity" remark. Let's see: a nativity scene or other overtly Christian symbol on public property will get a lawsuit in nothing flat--and the courts will take the position of removing it. The City of Beverly Hills used to have a variety of symbols visible over the streets in the holiday season, including a menorah.

The ACLU a few years ago tried to argue that a menorah is not a religious symbol, but a cultural symbol. However, that was as part of their effort to get anything Christian removed from the public lands. I don't recall ever reading about lawsuits to get Jewish or other minority religious group symbols removed from public spaces. Perhaps Christians are more tolerant of minority religions than the other way around?
Well, first this seems to be quite unresponsive to my original post, which spoke specifically of protecting atheists from discrimination. My post actually said that "I tend to agree that some of the Court's post-1947 jurisprudence has shown hostility to religion, for instance when the Court has mandated discriminatory exclusion of religious institutions from generally available benefit programs. And one might even argue that the mandated exclusion of religious symbolism from government speech is hostility to religion, though that's a somewhat harder issue, for complex reasons." I spoke, as Cramer's original post, of the mandate of nondiscrimination against atheists; it's odd that the update doesn't really confront that.

     But more importantly, in the very Supreme Court case that held that nativity scenes may violate the Establishment Clause -- a case conveniently called Allegheny County v. Greater Pittsburgh ACLU -- the ACLU sued to enjoin both a creche and a menorah. The Court ultimately upheld the display of the menorah, because it was part of a broader display, rather than just a stand-alone religious symbol; this result might be criticized, but it doesn't turn on whether the Menorah is Jewish or Christian, and it isn't the result that the ACLU sought. There are other lower court cases in which the ACLU has also sued over menorahs displayed on public property, and the ACLU also filed an amicus curiae brief before the U.S. Supreme Court arguing that it was unconstitutional for New York to create a special school district for a Hasidic community (Board of Ed. of the Kiryas Joel Village School Dist. v. Grumet, 1994); these, though, are less well-known items, so I can see how Cramer might have missed them.

     As to the suggestion that Christians are more tolerant of minority religions than the other way around -- well, it's interesting that Cramer's original post was responding to a post that criticized a Tennessee Constitution provision excluding atheists and those who deny the existence of "a future state of rewards and punishments" (which I'm pretty sure includes many, perhaps most, Jews; UPDATE: some correspondents suggested that most Jews take an agnostic position on a future state of rewards and punishments, rather than denying it, so I provisionally retract the "many, perhaps most, Jews") from office. Cramer was also criticizing a Supreme Court decision that struck down a Maryland provision that excluded atheists from office.

     These provisions, I strongly suspect, were enacted overwhelmingly by Christians, and were then maintained by Christians. Perhaps Cramer opposes these provisions himself, though nothing in his post even acknowledged that the laws might have been bad laws (though perhaps constitutionally permissible ones, under his view). But the fact remains that Christians have at times been quite happy to be intolerant of minority religions (or of atheists, who I take it deserve as much tolerance as minority religions) -- and their intolerance has extended to more serious matters than just exclusion of nativity scenes from public places.

     My working theory is that there are plenty of both Christians and non-Christians who are intolerant of other religions (or for that matter of very devout members of their own religion), and that are plenty of both groups who are quite tolerant of other religions; and I've seen no persuasive evidence that shows that either Christians or non-Christians are materially more tolerant than the other. But I do see some evidence that a world view that interprets all of the Supreme Court's modern Establishment Clause law as manifesting "hostility to Christianity" leads its possessors into error -- both the error of finding such hostility in rules that simply command equal treatment, and the error of making assertions that miss some pretty clear contrary evidence.

UPDATE: Clayton Cramer e-mailed me to say:
Obviously, I didn't mean that Christians are more tolerant than members of minority religions. That was intended as irony.

I didn't feel a need to attack the sense of the Tennessee law because it is pretty obviously not sensible in this day and age. That's a separate issue from its constitutionality.


More on UN's "Internet Takeover" Andy Oram at O'Reilly and Associates has a very interesting, and maybe even a very important, piece -- better than mine -- about about both the absurdity and the seriousness of the U.N.'s attempts to start mucking around in the Internet ecosystem. Worth a look.


The Rwandan broadcaster decision: I have not read the U.N. International Criminal Tribunal opinion myself (apparently it's 357 pages long), but if this Slate article is correct, then its reasoning (even if not necessarily the result) is quite dangerous:
In providing the legal justification for its decision, the tribunal cited several troubling precedents from European law in which journalists were prosecuted for hate speech and incitement. The tribunal repeatedly noted that under international law, countries have the right to limit freedom of speech to protect national security and public order, and an obligation to restrict speech that advocates "national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence." . . .

[Defense lawyer John] Floyd agrees that individuals who used radio to identify Tutsi civilian targets should be held accountable, but he believes the tribunal went too far in holding his client responsible for the genocide based in part on articles published years before it began. The hate-speech standards used in the Rwanda decision, Floyd argued, could also be used to prosecute a U.S. rap artist whose work is distributed in Europe, where strong language could violate laws outlawing "attacks on human dignity" or the publication of "insulting material likely to stir up hatred." More ominously, he warned that if a repressive government used a journalist's allegation as justification for a military campaign against a minority population, the journalist could be indicted by the International Criminal Court for incitement to genocide. . . .

[T]he ICTR judgment . . . relied largely on cases from Canada and Europe, where hate speech and incitement to discrimination are expressly prohibited by law. The tribunal cited as precedent the case of a journalist convicted in Denmark for "incitement to racial discrimination" based on a broadcast interview with a racist youth group. The decision was overturned by the European Court of Human Rights only because the journalist had "clearly dissociated himself from the persons interviewed." In another case, the European Court of Human Rights upheld the conviction of the publisher of a Turkish weekly because strongly worded letters to the editor accusing the Turkish army of massacring Kurds amounted to "hate speech and glorification of violence."

More ominously, the tribunal cited a Vietnamese press law that prohibits "the sowing of enmity among nations or people"; a Chinese law that prohibits broadcasts that "incite hatred on account of color, race, sex, religion, nationality or ethnic or national origin"; and a Ukrainian law that prohibits "propaganda or cruelty" as evidence of the seriousness with which some countries view their international obligation to suppress hate speech.

In fact, these examples demonstrate the extent to which repressive countries use hate speech and antidiscrimination laws to suppress legitimate dissent and criticism. China, for example, is the world's leading jailer of journalists, with 39 journalists behind bars. according to the Committee to Protect Journalists. Some repressive countries could be emboldened by the language of the tribunal's decision. . . .
I am not bitterly hostile to international courts in principle, but I'm skeptical of them in practice; and their willingness -- which might be unavoidable, given their status as international bodies -- to cite Vietnamese and Chinese law does little to diminish my skepticism.


Gifts: Have I mentioned recently that Academic Legal Writing (especially personalized) would make a nifty and thoughtful gift for your law student / young lawyer friends? Or that David Bernstein's You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws would make a great gift for an even wider range of people? Or that the same is true of Randy Barnett's The Structure of Liberty (his Restoring the Lost Constitution isn't due out until early next year), Tyler Cowen's Creative Destruction: How Globalization Is Changing the World's Cultures, and Jacob Levy's The Multiculturalism of Fear?


Kyoto Update: In regard to Tyler's post below, it is important to add that Britain's compliance with its greenhouse gas emission targets has little to do with any environmental policies it adopted, and nearly everything to do with broader changes in the British economy over the past fifteen years. Over this period, Britain's energy mix shifted dramatically away from coal, but this change was driven by economic -- not environmental -- concerns. So Britain cannot be held up as a model for Kyoto compliance, or the purported "ease" of reducing greenhouse gas emissions.

Should Germany manage to meet its targets in future years, this will also have nothing to do with its environmental policies. Kyoto targets are defined in reference to 1990 emissions. This means that Germany gets credit for emission reductions that result from the replacement of East Germany's Soviet industrial base with more efficient, modern facilities. This changeover should result in substantial emission reductions, even if it coincides with significant economic growth. In this way, Germany gets an environmental "free lunch" of the sort unavailable to other nations.


Free Speech and the Left: It's no coincidence that the five more liberal Justices voted yesterday to uphold rather draconian restrictions on freedom of expression, while the four more conservative Justices dissented. My just-published Texas Law Review article,"Lochner's Legacy's Legacy," has a salient footnote:
One of the great turnabouts of recent constitutional history has been that Supreme Court decisions broadly protecting freedom of speech from government interference are now considered "conservative." See, e.g., Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 206-15 (1991); Morton J. Horwitz, Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harv. L. Rev. 32, 110 (1993) (suggesting that the Court now employs free speech doctrine as a means of "preventing social change" instead of "producing social change"); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291, 291 (1989) (arguing that antipornography laws could be held constitutional under the First Amendment); see also J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 386 (predicting "that more conservative forces soon will overtake and appropriate the libertarian approach to first amendment law that progressives have used so effectively in the past"). For discussions of this phenomenon, see Kathleen M. Sullivan, Discrimination, Distribution and Free Speech, 37 Ariz. L. Rev. 439, 439-42 (1995); John O. McGinnis, The Left vs. Free Speech, Commentary, Oct. 1994, at 59. See generally David E. Bernstein, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws ch. 1 (2003) (discussing the growing reluctance of American liberals to support freedom of speech).
Sullivan notes that left-liberal solicitude for free speech arose in part because the great free speech cases for most of the twentieth century involved left-wing constituencies under assault from the government. Anarchists, communists, labor organizers, socialists, syndicalists, pacifists, and civil rights activists all benefited from the First Amendment. Sullivan, supra, at 439. Today, by contrast, the left believes "speech cases are often won by corporations, the media, and other powerful insiders.... Powerful private actors, such as pornographers and the media, are free to control, suppress, and distort the speech of others, and when they do, political processes cannot redress it." Mary Becker, The Legitimacy of Judicial Review in Speech Cases, in The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography 208 (Laura J. Lederer & Richard Delgado eds., 1995).


Kyoto update from George Will:
"Democrats denounced George W. Bush's "unilateralism" long before the Iraq war, partly because of his refusal to seek Senate ratification of the Kyoto treaty on global warming. The Clinton administration, which negotiated the protocol for two years and signed it in 1998, refused to send it to the Senate, which had voted 95 to 0 against ratifying anything resembling it. The European Union's environmental commissioner says 13 of the 15 EU members will not meet this year's emissions targets stipulated by the protocol. Only Britain and Sweden will comply; France, which lectures America about multilateral responsibilities, will not. Europe is failing to limit emissions even though its economy is stagnant, which makes compliance easier. Canada, another of America's moral auditors, is having second thoughts about a climate treaty that does not regulate such developing nations as China and India -- more than one-third of the human race is in those two nations -- because the treaty is an impediment to economic growth. An adviser to President Vladimir Putin says Russia will not sign the protocol. Doing so would sap Russia's economic vigor, ending Putin's dreamy goal of doubling Russia's GDP by 2010. So what exactly is distinctively unilateral with Bush's policy regarding Kyoto?"

The emphasis is mine, not Will's. Here is the link, the whole piece is worth reading, it covers many campaign topics of interest.


If not the longest, at least the most complicated: Eugene asked yesterday whether the Court's decision yesterday in the campaign finance case (McConnell v. FEC, available here, if you can stand it) was the longest in history. I don't know the answer to that -- but, relatedly, I think it might have the most complicated voting line-up ever. Here, verbatim, is the Court's own description of who lines up where in this one:

STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.
It's pretty gruesome -- a failure, I'd say, of the Court's law-making processes.

Wednesday, December 10, 2003


Volokh for the Supreme Court! At my Cato talk yesterday, John Leo of US News, the commentator, praised Eugene and then stated that "I envision him on the Supreme Court someday." From his lips to God's ears!


Rick Hasen on the campaign finance decision: Rick, a leading election law expert, strongly defended BCRA, but he is troubled by what he sees as "the Court's cursory dismissal of First Amendment arguments."


"Like the Volokh Conspiracy, Only Libertarian": Gene Healy of Cato writes: "I'm guest-blogging on Liberty and Power this week, by gracious invitation of Professor David Beito. They run a great site. It's like the Volokh Conspiracy, only libertarian!" I wonder how Gene would describe the Volokh Conspiracy. (And do visit Liberty and Power, which is an excellent site.)


Who Killed the Most Jews?: A lesson in peaceful coexistence, from the future generation of Palestinian leaders:
In a West Bank university election for the student leadership that focused on which party had killed the most Israelis, the violent Hamas swept to victory Wednesday, defeating Yasser Arafat's Fatah.
The campaign for the student government council at Bir Zeit University near Ramallah featured exploding models of Israeli buses and claims of prowess based on Israeli casualties.
Thanks to Mike Daley for the pointer.


Longest decision in U.S. Supreme Court history? Several people have pointed out that today's campaign finance decision (McConnell v. FEC) is probably the longest in U.S. Supreme Court history, weighing in at 298 slip opinion pages, if you include the syllabus and all the opinions; my word count (using WESTLAW and Word) puts it at over 90,000 words. It's just a bit longer than Buckley v. Valeo, the Court's monster 1976 campaign finance decision (if you want to do a word count yourself, remember to remove the West-provided headnotes before doing it).

     If anyone has verified that another Supreme Court decision is longer -- vague recollections and guesses don't qualify -- please let me know.

UPDATE: Reader Robert Litt points out that the 1888 Telephone Patent Cases (consolidated into one decision) occupied the entire volume 126 of U.S. Reports, but the bulk of that was the account of the lawyers' arguments and some of the exchanges at oral argument, which were generally included in the U.S. Reports back then. The actual opinion appears to take up fewer than 50 pages. Tim Sandefur, though, tells me that the Dred Scott case (1857) was over 100,000 words, not counting the arguments of counsel.


Careful with those packages abroad: Harvard lawprof Detlev Vagts pointed me to this interesting statute, 50 U.S.C. App. sec. 3(c), which appears to be still in effect (the act was enacted in 1917, but parts of it were enforced during World War II):
(c) [It shall be unlawful f]or any person (other than a person in the service of the United States Government or of the Government of any [friendly or neutral] nation, . . . and other than such persons . . . as may be exempted . . . by the [executive branch]), to send, or take out of, or bring into, or attempt to send, or take out of, or bring into the United States, any letter or other writing or tangible form of communication, except in the regular course of the mail; . . . Provided, however, That any person may send, take, or transmit out of the United States anything herein forbidden if he shall first submit the same to the President, or to such officer as the President may direct, and shall obtain the license or consent of the President, under such rules and regulations, and with such exemptions, as shall be prescribed by the President.
The statute is thought of as being applicable only in wartime -- but nothing in it specifically says so, or specifically limits it to communications with enemy countries or citizens of those countries. Sending a FedEx package to Canada would seem to be a crime. It's not clear whether international e-mail would be; it's a "writing," but not a "tangible form of communication."


Predictions about lifespan and insurance: My post about the dangers with long-term predictions led a reader to ask: Do life insurance companies' actuarial tables try to take into account advances in medical
technology when computing life expectancies? This is not the same matter at all as predicting world population in 2300; among other things, first, life insurance companies don't have to plan that far in advance, and, second, throwing up their hands and saying "we can't know" isn't an option for them where decades-ahead planning is involved. So I asked someone who knows these things, and here's the answer I got:
Not exactly my area but I know enough to be dangerous at least. The first thing to note is that how an actuary chooses a mortality assumption will vary on the use of the results. As an example, life insurance actuaries price (develop premium charges) for individual policies assuming very high
mortality. They do this because they assume (and have data to back it up) that individuals who are very healthy and have good family histories are less likely to buy individual life insurance policies. They also do this because collecting too little in premiums would be ruinous to the company and his or her career (of course one needs to be competitive so the actuary may get pressure from the marketing/sales department).

In general though, all actuaries should consider future improvements in life expectancy (caused by medical technology in some part) in all valuations. What I've read and seen though is very broad brush, not specific to certain medical or technological developments. As an example, we might take the most recent mortality table available and project 10 years of improvement at the same rate that mortality improved over the prior 10 years. Now you understand why Warren Buffett says actuaries are always looking in their rear view mirrors. This is called a static projection of mortality improvement and we select the 10 years to reflect the duration of our liabilities. A more sophisticated (and my guess what insurance companies use) is a generational mortality table. This turns a 2 dimensional mortality table (age and sex) into a three dimensional table where the third dimension is year of birth. This table would still use prior mortality improvement trends to estimate future improvements, so it is more sophisticated but perhaps no more accurate.

Demographers debate the issue of future mortality improvement and whether the future will look anything like the past. Some are convinced that shortly we will live forever (bad for Social Security, fabulous for life insurers), others think that we have significantly slowed improvements because we have cured early deaths (antibiotics, childbirth) and now are focusing on extending the last couple of decades and it's hard to raise the average significantly by changing the tail. One interesting note, we
estimated that the gap in longevity between males and females would continue to widen and recent information says males are catching up.

Hope that helps. There are actuarial standards out on that are called Actuarial Standards Of Practice and I know we have a mortality standard that recommends consideration of future improvements. There may be a more specific standard for certain insurance valuations out there that I am not aware of.
Seemed very interesting to me, so I thought I'd pass it along. Please don't ask me any questions about it, though; I have no answers myself, and don't want to presume further on my friend's time with follow-ups.


Newspapers are corporations, too: I've mentioned before that I think corporate speech should be just a protected as noncorporate speech. One piece of evidence for this position is that newspapers, magazines, broadcasters, and other media outlets tend to be corporations, too. So far, the restrictions on corporate speech related to campaigns have excluded the media, at least as to some of its functions ("news stor[ies], commentar[ies], or editorial[s]," in the BCRA statute that was just upheld). But (1) it's not clear why some corporations should have more statutory speech rights than others, and (2) these exemptions from the media are, under the Court's logic, matters of legislative charity; legislatures could, if they wanted to, restrict newspapers, TV stations, and cable programs owned by corporations just as they restrict speech by other corporations. (Likewise, though BCRA itself only covers broadcast, cable, and satellite communications, it could be easily extended to cover print communications, too, and other restrictions on corporate speech have indeed covered print.)

     Justice Thomas, I think, puts the matter well:
The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. "This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations."

Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of "the corrosive and distorting effects" of wealth accumulated by corporations that has "little or no correlation to the public's support for the corporation's political ideas," there is no distinction between a media corporation and a nonmedia corporation.

Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people.

What is to stop a future Congress from determining that the press is "too influential," and that the "appearance of corruption" is significant when media organizations endorse candidates or run "slanted" or "biased" news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy "circumvention" of the limitations of the current campaign finance laws?
[footnote:]It appears that "circumvention" of the campaign finance laws by exploiting media exemptions is already being planned by one of the plaintiffs in this litigation. See Theimer, NRA Seeks Status as News Outlet, Washington Post A09 (Dec. 7, 2003) (reporting that the NRA is looking to acquire a broadcast outlet and seeking to be classified as a news organization).
Indeed, I believe that longstanding and heretofore unchallenged opinions such as Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), are in peril. There, the Court noted that "[c]hains of newspapers, national news papers, national wire and news services, and one newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events." Despite expressing some sympathy for those arguing for a legally created "right of access" to encourage diversity in viewpoints in the media, the Court struck down such laws, noting that these laws acted both to suppress speech and to "intru[de] into the function of editors" by interfering with "the exercise of editorial control and judgment."

Now, supporters of such laws need only argue that the press' "capacity to manipulate popular opinion" gives rise to an "appearance of corruption," especially when this capacity is used to promote a particular candi date or party. After drumming up some evidence,[footnote 16] laws regulating media outlets in their issuance of editorials would be upheld under the joint opinion's reasoning (a result considered so beyond the pale in Miami Herald Publishing that the Court there used it as a reductio ad absurdum against the right-of-access law being addressed) . . . .
[footnote 16:] Given the quality of the evidence the Court relies upon to uphold Title I, the evidence should not be hard to come by. See Kane & Preston, Fox Chief on Hot Seat, Roll Call (June 12, 2003) ("GOP leaders such as House Majority Leader Tom DeLay (R-Texas) have labeled CNN as the 'Communist News Network' and the 'Clinton News Network' -- suggesting they only presented the liberal viewpoint and that of former President Clinton"); Jones, Fox News Moves from the Margins to the Mainstream, Shorenstein Center, Harvard (Dec. 1, 2002) (quoting Al Gore as describing Fox News and the Washington Times as "part and parcel of the Republican Party").


Chomsky Again: I've gotten much email to the effect, "of course Chomsky recognizes that some manifestations of anti-Zionism are motivated by anti-Semitism" but none of these correspondents has provided any citations to where Chomsky has acknowledged this. So has he? If you have a source, let me know. And remember, Chomsky reportedly wrote (I've not seen the original), "I see no anti-Semitic implications in denial of the existence of gas chambers or even denial of the Holocaust." This is not a man who easily recognizes obvious anti-Semitism.
UPDATE: With thanks to Barry Deutsch for the pointer, here is Chomsky's explanation of the above-quoted remark, which is full of typical Chomskyite evasions and changing-the-subject-to-the-evils-of-pro-Israel-group. Question for Chomsky: is he aware of any "scholar" who has denied the Holocaust and has not turned out to be an anti-Semite? Meanwhile, no one has as yet come up with a Chomsky quote acknowledging that some anti-Zionism is motivated by anti-Semitism.
UPDATE: The Strange Doctrines blog claims to have had the following correspondence with Chomsky:
Question: Do you acknowledge the existence of anti-Semitic anti-Zionism?
Chomsky: I can't technically "acknowledge" it, any more than you or I can acknowledge the existence of the moon, and for the same reasons.
Question: Okay, let me rephrase: Is there such a thing as anti-Semitic anti-Zionism?
Chomsky: Yes, just as certainly as there is such a thing as the moon. The only aspect of the question that is of some interest is what "strange doctrine" (to borrow your username) motivates people even to ask it, in either case.

Hmm. Why can't I acknowledge the existence of the moon?


Rehnquist and O'Connor switching sides: I tentatively think the Court's decision on soft money contributions was probably correct, or at least quite plausible. As I've argued before, I do think that contributions (as opposed to independent expenditures), should be more subject to restriction.

     I think the Court was wrong, though, to uphold restrictions on business corporations' (and some nonprofit corporations') and labor unions' right to express their support or opposition to candidates. There's a precedent for this -- Austin v. Michigan Chamber of Commerce (1990) -- but I think that it was mistaken, largely for the reasons Justice Scalia mentioned in that case, and that the Court was mistaken to extend it.

     A curious point, though: Chief Justice Rehnquist, who voted to allow the speech restriction in Austin, voted to strike it down here, and Justice O'Connor, who voted to strike down the speech restriction in Austin, voted to allow it here. Had Justice O'Connor not switched her vote on this, the restriction would have been struck down. I have no good theories to explain the change (other than simply saying that the Justices' views changed since then, but then the question is why they changed).


Why might Islam be bad for economic growth? In a recent post I considered whether Islam might be bad for economic growth. In particular Islam may be less compatible with the rule of law and capitalist liberal democracy. It is harder to argue that Islam as a religion discourages productive activity from its believers, Muslims have done very well in many settings, including the United States. Excellent comments followed from Kieran Healy, Brad DeLong, and Daniel Drezner.

Brad writes:

"I'm inclined toward political and organizational explanations--that the key problem lies in the form taken by the Muslim state seen not as an (incredibly imperfect) system for the collective self-organization and regulation of society, but as an alien military-bureaucratic organization sitting on top of it: slaves on horses, in Patricia Crone's formulation, at the service of whatever dynasty of ghazis or nomads most recently conquered the settled lands."

While recognizing how hard it is to test hypotheses in this area, the following are my favored (partial) explanations for why Muslim regions fell behind:

1. Competition among European states led them to embrace science and military technology, which eventually led to broader forms of progress. Drezner points out that many Islamic regions did not have comparable natural borders.

2. Christianity, with its emphasis on Christ crucified, laid the seeds for ideas of individual rights and sympathizing with the victim. These strands later sprouted into the rule of law, limited government, and the liberal worldview.

3. The special nature of the northern European worldview. Both the European Mediterranean and much of Islam are built on Hebrew and Greek ideas. Yet the overall European blend had this third, northern influence as well. We find it in the Icelandic sagas, British common law, much of Scandinavia, and parts of Germany.

The key question is to address why much of the Muslim world was wealthier and freer in medieval times. #1 suggests that the potential advantage of the West only kicks in at a certain level of scientific advance; ironically much of this science came from Islamic regions. #2 suggests that Protestantism and the Reformation may have been required for Western liberalism to get off the ground. #3 suggests that northern Europe and England served as a kind of exogenous kicker to the rest of the Continent. This doesn't answer the puzzle, but I see these factors as building blocks of any larger and more complex explanation.


Oops: The British Museum just acquired a set of "Iraq most wanted" playing cards for their permanent collection. You remember that set, Saddam is the ace of spades and various other villains are photographed on the other cards in the deck. American servicemen carried the decks around, presumably to spot and capture the baddies. Well, the museum was embarrassed when it turned out that the cards it ordered were not the real thing. It became apparent that "Made in China" was written on the back side of the cards. The museum is now seeking to buy another set, although it is becoming increasingly difficult to sort out "first editions" of the cards. Ebay auctions have the cards going for $300, and that is without any guarantee of authenticity. The cheapest copy sets now go for about $4. The story is from The Art Newspaper.


One of the World's Leading Experts on Equality Doesn't Like it Very Much: Courtesy of my colleague Craig Lerner, from the Rutgers University website:
LARRY TEMKIN is Professor of Philosophy. A specialist in ethics and social and political philosophy, Temkin is one of the world's foremost experts on equality. Professor Temkin graduated number one from the University of Wisconsin at Madison with a B.A.-Honors Degree, and received his Ph.D. from Princeton University. Professor Temkin has received numerous honors and awards, including Fellowships from the Danforth Foundation, the Mellon Foundation, the National Humanities Center, Harvard University's Program in Ethics and the Professions, and All Souls College, Oxford University. Before coming to Rutgers, Professor Temkin taught at Rice University, where he won eight major teaching awards, including each of Rice's highest teaching awards, as voted on by peers, current students, and former students.

UPDATE: This isn't meant as an attack on Prof. Temkin, who, as the final line of his bio (see the website) shows, doesn't take himself too seriously. Rather, I just thought the juxtaposition of "leading expert on equality" with "first in his class," etc., was amusing.


Biathlon: If you can combine cross-country skiing and target shooting, why not chess and boxing? Thanks to my friend Jesse Walker, of Reason, for the pointer.


Children's First Amendment rights: This is probably the least important part of the Supreme Court's campaign finance decision; but you'll surely hear plenty about all the other parts from other sources, so I thought I'd highlight something that you probably won't hear much about:
[The statute] prohibits individuals "17 years old or younger" from making contributions to candidates and contributions or donations to political parties. . . . Minors enjoy the protection of the First Amendment. Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. When the Government burdens the right to contribute, we apply heightened scrutiny. We ask [as to campaign contributions, which are less protected than pure speech] whether there is a "sufficiently important interest" and whether the statute is "closely drawn" to avoid unnecessary abridgment of First Amendment freedoms. The Government asserts that the provision protects against corruption by conduit; that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents. But the Government offers scant evidence of this form of evasion. Perhaps the Government's slim evidence results from sufficient deterrence of such activities by §320 of FECA, which prohibits any person from "mak[ing] a contribution in the name of another person" or "knowingly accept[ing] a contribution made by one person in the name of another." Absent a more convincing case of the claimed evil, this interest is simply too attenuated for §318 to withstand heightened scrutiny.

Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches -- e.g., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court's decision striking down [the ban on contributions by minors] as unconstitutional.


The Supreme Court's campaign finance decision is here.


Your man on the scene: So it happens that I'm spending the week in and around Geneva just when a blogospherically-important event-- the UN summit on the "information society" and the "digital divide" and "many other important buzzwords"-- is taking place there. Yesterday the tone was set by Robert Mugabe flying into town, the Swiss travel restrictions on him having been lifted for this event. I have mixed feelings about that. It seems to me that if a country is going to bother to have travel restrictions, then they shouldn't get waived at the drop of a hat. It's not as though Switzerland didn't know in advance that Mugabe might at some point have diplomatic reasons for travelling to Switzerland; many heads of state and heads of government do. What was the point of adopting the restrictions, then? Just to prevent the SOB from making in-person bank withdrawals? On the other hand, I wouldn't object if Switzerland opted out of the travel-restriction business altogether, holding it to be incompatible with the Swiss understanding of neutrality and acting as a good host for international organizations. The US and the EU and the Commonwealth have responsibilities as world actors; but there's a desirable place in the system for a state like Switzerland.

But that's not the point of this post. The point is to say: despite being in town, I have absolutely no special, inside, or on-the-scene information about the summit. Sorry. I could, of course, slap a GENEVA byline onto the post and repeat back stuff I've read in the same newspapers or blog posts that all our readers have read, and pretend that it was a scoop. For that matter, I've done stuff like that before, as a radio reporter. The reporter in the field asks the anchor back home in the studio, the one who has access to the AP wire, what's going on. Then, on the air, the reporter repeats it all back, closing with, "From Geneva, this is Jacob Levy for WKRP News."

But you, my good readers, are too wise for such a ruse-- especially since I've already told you that I'm spending all week in the library...

UPDATE: Crooked Timber beats the Conspiracy on this one-- someone who's actually inside the building...

Tuesday, December 09, 2003


World population: If people in 1700 tried to predict world population in 2000, what do you think their margin of error would be? Let's imagine even that these people in 1700 somehow magically knew everything that was going on in 1700 -- they could do a perfect census of who was alive in 1700, and how they were living. Seriously, could they possibly have figured anything out, without foresight about the immense social and technological changes that the next 300 years would bring? Not a chance, I think.

     If that's so, why on earth would we think that we can predict now what will happen in 2300, as this U.N. report tries to do (thanks to Juan for pointing to this report below)? Even setting aside the risk of truly catastrophic wars or plagues, think of how unpredictably medical technology -- reproductive, life-extending, and so on -- could affect the population. Consider the statement that in the projection that "some countries reach very high levels of survivorship by 2300. At that time, females in Japan are projected to have a life expectancy of 108 years, with males having 104 years." Doesn't this require knowledge about future medical technology that we cannot conceivably possess?

     Or consider this line: "In the medium scenario, the number of countries accounting for 75 per cent of the world population is
expected to increase from 24 in 2000 to 29 in 2100 and to remain unchanged thereafter." Why would we think that most of the "countries" that exist in 2300 would bear much relationship to the "countries" in 2000?

     How can this sort of long-term planning possibly make any sense? Seems like an odd sort of hubris.


More on the McDonald's Coffee Case: Curmudgeonly Clerk responds to my previous post on this case, by pointing out:

(1) That ANSI states that the proper temperature for preparing coffee could be as low as 170 degrees.
Duly noted, good info.
(2) That the jury in the case at issue knew whether burns from McDonald's coffee were common or rare, because they knew that at seven hundred people had suffered burns from McDonald's over a decade.
The Clerk implies that this means that burns were common, but I'm not so sure. That's seventy burns a year, some of them mild. How many millions (billions?) of cups of coffee did McDonald's serve in those ten years? (UPDATE: According to this website, the burn rate from McDonald's coffee was 1 per 24 million cups served, hardly common.) How many people burned themselves at home from coffee in that same period?
(3) Unlike coffee mugs at home, coffee cups at McDonald's are made to retain heat.
True, but many, perhaps most people who buy coffee at McDonald's get it to go, and would therefore want an insulated cup. The plaintiff in question was one of them. If she couldn't get hot coffee to go at McDonald's she might very well have taken equally hot coffee from home and put it in an even more insulated thermos.
(4) Testimony by Mr. Appleton, an executive at McDonald's, hurt the company.
Yes, from what I've read he seemed cold-hearted, concerned with the efficient solution rather than expressing sympathy for the victims of coffee spills. Yet I don't know any theory of Torts that suggests that liability should depend on whether the jury likes the attitude of a particular witness or not. Unfortunately, however, many cases are decided on such factors. Just try to present testimony to a jury regarding a rational cost-benefit analysis, the kind Torts professors tell students companies are supposed to do. The company involved will be stand accused of "putting a price on human suffering," and, as Prof. Kip Viscusi has shown, will likely be hit with punitive damages as well. Some system.
UPDATE: Ted Frank at has more, including the salient facts that many of the previous burn claims against McDonald's involved employees spilling coffee on customers, and that the horrible burns suffered by the plaintiff in the infamous coffee case were in part due to her attire.


More Illegal Preferences: Courtesy of a reader, I discovered that:
The Rocky Mountain News will become a training center for young Hispanic journalists under a program announced Wednesday by its parent, the E. W. Scripps Co.
The Scripps Academy for Hispanic Journalists will accept four journalists in the two-year program in 2004 and another four in 2005. After that, the program always will include eight participants on a rotating basis.


Population Dud: World population growth will slow significantly in the coming centuries, according to the latest United Nations population report, World Population 2300 (see also press release, news report). Whereas once it was assumed that the world’s population would hit 10-12 billion, the UN now forecasts a global population of 9 billion in 2300. This is a substantial increase over the present global population of 6.3 billion, but far less than once feared. Indeed, the UN once projected that global population would reach 10 billion in this century. No longer. The UN's new report reflects the more optimistic assumptions of most independent population researchers.

The lower projection takes the edge off many of the more dire predictions about population-induced environmental disaster. Accommodating a growing global population will require effort to be sure, particularly in food production and fresh water protection and distribution, but a slower rate of increase and lower aggregate population makes these obstacles significantly more manageable than some had feared. In short, it is further reason for environmental optimism.

The new report also has broader implications for environmental policy. For instance, it is further evidence that a recent UN climate change scenario forecasting a 10 degree F temperature increase is based on dubious (if not completely absurd) premises. The scenario – produced by the so-called SRES group of the Intergovernmental Panel on Climate Change – assumed rapid population growth would continue for decades, a finding the new population report undermines. The report also adopted unrealistic assumptions about economic growth in developing countries (too much) and technological change (little to none). A critique of the SRES report by David Henderson (former chief economist at the OECD) and Ian Castles (former chief statistician for the Australian government) is here.

UPDATE: I generally agree with Eugene's comments above to the effect that any prediction for the year 2300 is highly questionable, to say the least. Indeed, the report acknowledges alternative scenarios ranging from approximate two to 35 billion people. Nonetheless, I believe the new report is worthy of attention for two reasons.

First, the report includes population projections for the not-to-distant future -- projections that are significantly less speculative -- and concludes that population growth over the next several decades will be much less than once predicted. Global population growth by 2050 likely to top out around 9 billion, the report estimates, not the 10-12 billion that the UN used to predict (or the even higher numbers some environmental activists suggested). (The medium scenario in Figure 1 here shows the projected trend in the near to medium term.)

Second, the report's overall message -- population growth is a less severe environmental concern than many have suggested over the years -- is a ueful tonic to much Malthusian doom-saying.


Leiter and Chomsky: Brian Leiter takes on the "Chomsky-haters" (including me, though I don't pay enough attention to Chomsky to hate him) who jumped on Chomsky for claiming that anti-Semitism "scarcely exists" in the West. Pejman and Mike Rappaport respond. The main issue: when Chomsky said "scarcely exists" did he mean "is a lot less prevalent than it was in Chomsky's youth?" I don't think so; scarcely exists is not, without modifiers, a relative statement. And remember, there is a political subext to Chomsky's remarks: the implicit denial of a relationship between anti-Semitism and anti-Zionism. (UPDATE: Indeed, Chomsky goes on to distinguish the "real" anti-Semitism of the past from current anti-Israel sentiment.)
UPDATE II: The exact quote from Chomsky is that anti-Semitism in the West "scarcely exists now, though it did in the past." To be clear, "though it did in the past" does not modify "scarcely exists now." If Chomsky had said, "it scarcely exists now, compared to how bad it was in the past," or "it scarcely exists now, relative to the past" that's a different statement. "Though it did in the past" actually emphasizes that Chomsky is in fact stating that it "scarcely exists now" on an absolute, not relative scalel.
UPDATE: Leiter has added a response to Rappaport.


You can tell a lot about a world-view by what it perceives as threatening or hostile. Clayton Cramer, whom I much respect for his work on gun control history, but with whom I have some rather deep disagreements, writes:
Concerning the [prohibition on atheists holding office in Tennessee]: the U.S. Supreme Court (wrongly, in my opinion) struck down Maryland's somewhat similar requirement in Torcaso v. Watkins (1961). I say wrongly because the First Amendment was never intended by the First Congress to apply to the states, most of which had provisions requiring officeholders to either believe in God or specifically to be Christians. (See here for a bunch of examples of how the Framers felt about religion.) The First Amendment was a limitation on the federal government alone.

The Fourteenth Amendment incorporates the First Amendment against the states, but there is simply no evidence that I have seen that the authors of the Fourteenth Amendment intended the First Amendment's prohibition on establishments of religion to include the broad hostility to Christianity that has become the norm in First Amendment jurisprudence from 1947 onward.
Let me set aside the original meaning question -- perhaps the Court was indeed wrong in Torcaso; not all bad, or even awful, laws are unconstitutional. What strikes me about this post is how it becomes something about broad hostility to Christianity. How does is it a manifestation of "broad hostility to Christianity" for the Court to hold that atheists have the same rights as Christians? What vision of Christianity, and of the proper role of Christianity in the country, would see a constitutional principle of equal rights for all religions, and for the irreligious, as "hostile" to Christianity?

     Actually, I tend to agree that some of the Court's post-1947 jurisprudence has shown hostility to religion, for instance when the Court has mandated discriminatory exclusion of religious institutions from generally available benefit programs. And one might even argue that the mandated exclusion of religious symbolism from government speech is hostility to religion, though that's a somewhat harder issue, for complex reasons.

     But the set of cases that have barred discrimination against or in favor of religious (or irreligious) groups -- Torcaso (barring discrimination against atheists), Larson v. Valente (barring interdenominational discrimination), Church of the Lukumi Babalu Aye v. City of Hialeah (barring discriminatory punishment of religious practices), McDaniel v. Paty (barring discriminatory exclusion of clergy from the legislature) -- are not remotely hostile to religion or to Christianity. They promote equality, not preference or hostility. The only thing to which they are hostile is religious discrimination.


A few reminders about e-mails: Just a reminder:
  1. If you want to respond to a post, please carefully check whose post it is, and e-mail the author. The bloggers' e-mail addresses are available on the left-hand side of the page; if you can't find them, that's probably because you missed them.

  2. If you think there's a post that one of the bloggers might like to read or link to, please include both the URL and the entire text of the post. When one is reading at home over a slow connection, it makes a huge difference to have the text right there. Also, please do include the whole post, and not just an excerpt.

  3. If you have a new blog that you'd like to mention to one of the bloggers, please pitch the post, not the blog. Don't say "check out my blog,"; rather, find a post that you think one of us would find interesting, and then send along its text and URL.
Thanks very much.


Iraqi Soccer: A nice piece by David Enders in Slate on the Iraqi soccer team's big win over the North Koreans in the qualifying tournament for the Asian Olympics. Bigger news for the people of Iraq, one suspects, than most of the other things one reads about in the newspaper these days. Sure, it's a cliche, but true nonetheless -- a good soccer game's a great substitute for international warfare (and a helluva lot more fun to watch).


UN TO DELAY TAKEOVER OF INTERNET (?) This is either a trivial bit of non-news, or the initial rumblings of what will become a big story. The World Summit on the Information Society is convening in Geneva this week under the auspices of the UN and the UN-affiliated International Telecommunications Union, and early word had it that this was going to be the venue for a major UN-led action to "take over control of the Internet." At least, that's how press reports characterized it. What preliminary discussions had focused on was a transfer of the Internet's "domain name system" -- the complex web of databases and servers that stores and manages the names and numbers on the basis of which messages are transmitted over the net -- from the hands of the Internet Corporation for Names and Numbers (ICANN), the private, non-profit corporation that was formed (with strong support from the US government) in the late '90s to manage the domain name system, and to place it somewhere within the U.N.'s orbit (thereby assuring greater governmental control over the system).

      The delegates have apparently tabled plans to actually do anything at this week's summit; instead, they'll be directing Kofi Annan to commission a study of the whole issue of "Internet governance," and report back to them in time for the next meeting next December.

      In all likelihood, nothing will ever come of this other than lots of talking and boondoggle trips for UN diplomats; among other things, the U.S. is strongly opposed to any UN takeover, and it's hard to see this happening without US support. But, still . . . the idea of placing this critical Internet resource under UN control strikes many people (even those, like me, who have been very critical of ICANN's actions in that regard) as largely appalling; it is very hard to argue that the net would have flourished under UN auspices up to now, or that a greater degree of governmental control would be a good thing for this medium, or that UN decisionmaking procedures would do anything other than compromise the technical consensus that still underlies the net's technical protocols. Worth, perhaps, keeping an eye on.


Can you trust a Sheriff's Department like this? Matt Rustler passes along this story from Kern County, California (which is north of Los Angeles, and contains Bakersfield):
On September 26, 2003 KGET 17 received an email containing a picture of a Kern County Sheriff's patrol car with an official looking sticker on the side reading . . . "We'll Kick Your Ass".

When contacted for an explanation, Sheriff Mack Wimbish told us he didn't have anything to do with it but that when he saw the decals he found out who was responsible and had them reprimanded. . . .

[L]ast week, KGET 17 asked Wimbish and his Assistant Sheriff Mike Lafave who ordered the decals made?

We were told it was a sergeant in charge of vehicles, but that the sergeant cannot remember who told him to do it, only that he remembers it was not the sheriff.

Now on to Tuesday, Assistant Sheriff Mike Lafave contacted KGET 17 and claimed, the sergeant now remembers, that it was the commander in charge of vehicles who told the sergeant below him to make up the stickers and have them placed on two cars.

Commander Chris Davis spoke out for the first time Wednesday. He is the commander in charge of that sergeant.

According to everyone involved, even Cmdr. Davis, there never was a direct order to pull off this gag.

"Basically when a supervisor says I like this, we do it," said Cmdr. Davis. "Perhaps he didn't realize the power he has as sheriff with a few words"

So what is the controversy over?

For the Californian it is because the sheriff claimed he knew nothing about the signs and that he thought they were doctored photos, when he now admits he knew they were stickers. . . .

For the public, it may be that the sheriff and assistant sheriff are blaming a commander who speaking publicly at some risk says they are wrong. . . .

The sheriff admits this was his idea in a way, because he walked around the department showing off a magazine drawing of a similar gag and said he thought it was funny. . . .
UPDATE: Several readers also pointed to this Kern County Sheriff's Department story:
Arvin Mayor Juan Olivares had just one request of a Kern County sheriff's deputy during a traffic stop -- "Don't call me dude."

The mayor of the city of 20,000 people about 20 miles south of Bakersfield planned to file an official complaint with the sheriff's department, seeking to have the deputy fired for what he calls disrespectful behavior.

"I asked him five times, 'Please officer, don't call me dude.' I'm not a dude. I'm 41 years old, I'm a businessman, I'm a Christian and I consider myself a gentlemen," Olivares said Monday. . . .

"He was calling me dude and laughing about it," Olivares said. "I don't think Kern County needs that kind of leadership."
I sympathize with the mayor, though the relevance of his Christianity (or even his gentlemanliness) escapes me.


New Op-ed on the Solomon Amendment: I have a new op-ed on the Solomon Amendment posted here. An excerpt:
Liberals are up in arms over the Solomon Amendment because it prohibits universities that receive federal funding from discriminating against military recruiters who must follow the anti-gay "Don't Ask, Don't Tell" policy. Liberals don't like that policy, don't want it, and argue that the Solomon Amendment interferes with their right to set university rules that are more open to homosexuals. Indeed, a group of Harvard Law School professors has just announced its intention to sue the government to overturn the Solomon Amendment.

The irony, of course, is that the same liberal "civil rights" activists who now oppose the Solomon Amendment, adopted in 1996, had supported previous efforts to ensure that the federal government could use its financial power to force private universities to obey draconian antidiscrimination rules. In other words, the troubling consequences of government regulation of universities' internal affairs have come full circle.


From Lausanne: I've arrived safely, after a thoroughly unpleasant Alitalia flight that might well look like a joyride by comparison with my flight back, if Alitalia goes on strike.

I love Switzerland, as always. I think it occupies a place in my heart somewhat akin to the place that Sweden used to for social democrats. On the other hand, I'm staying in the Hotel Rousseau, which delights me somewhat less. This morning drove past a turnoff maekd for a museum at Coppt, the chateau of Jacques Necker and, later and more importantly for my purposes, Mme de Staël and her circle in exile. (The de Staël- Constant group is often referred to as the Coppet Circle.) Tempting; but the library matters more...

The quadrangle outside the university library here in Lausanne has a pasture with thirty-odd sheep and two donkey grazing. I have made it a (very subordinate) goal of my week here to learn why...

Monday, December 08, 2003


Speaking at the Cato Institute Today: I'll be speaking at the Cato Institute today (Tuesday) at noon about my book You Can't Say That! John Leo of US News and World Report will provide comments. If you are in the DC area, come by and say hello, and enjoy the free lunch afterwards. If you aren't you can watch the event live here.


William Blythe IV: My student Kevan Choset passed along this question: For what is William Blythe IV most famous? The answer is here.


The Infamous McDonald's Coffee Case: Left-wing Naderite types and trial lawyers have been stewing for years over the negative publicity given to the case of a woman who won [edit: a jury verdit of] over $2 million [edit: later reduced to "only" $480,000 by the judge] from McDonald's after spilling hot coffee in her lap, resulting in severe burns. Don't people realize, they ask, that McDonald's served its coffee at approximately 185 degrees, at least 20 degrees hotter than other fast food chains? And that other people had also been burned by the coffee? Well, here's the problem for me. If you make coffee at home, it is brewed at 195 degrees or higher, and it is recommended that it be served immediately. Coffee is typically (or at least properly) kept at 180 degrees or slightly higher in a carafe to maintain taste.
So the next time someone tells you that the McDonald's case was legit, ask them whether a person who burns themselves at home on coffee should they be able to sue the coffee producer or the company that made the brewing equipment. No? Well, why can they then successfully sue McDonald's and even get punitive damages for burning themselves on McDonald's coffee served at the same or lower temperature than it gets served at home? (Not to mention the "dangerously hot" tea typically served at home at just under boiling temperatures!).


The Memos and Ms. Jones, Continued: The reactions to my post on Elaine Jones' alleged efforts to prevent the confirmation of any judge to the U.S. Court of Appeals for the Sixth Circuit while the Michigan affirmative action case was pending, lest the Senate provide an additional en banc vote against the constitutionality of racial preferences in education, are widely split. Pejman is outraged. The view at Ciceroinian Review, on the other hand, is that Ms. Jones' actions cannot be sanctionable without prohibiting any member of the bar from lobbying over judicial nominations. This is a fair point -- and I still doubt Ms. Jones will be sanctioned -- but I think this case can be meaningfully distinguished: According to the memo, Ms. Jones made clear her intent was to influence the en banc vote on this specific case -- a case in which she was involved. Whereas it may be perfectly permissible for lawyers to lobby Congress for or against the confirmation of judges to courts before which they will appear, it nonetheless strikes me as improper (and potentially sanctionable) for a lawyer to engage in such lobbying in order to alter the outcome of a specific, pending case. Moreover, while lawyers may engage in such conduct on a regular basis, rarely is there evidence that they sought to alter the outcome of a specific, pending case in such a fashion.

To recap, in my prior post I tried to make the distinction between this purported delay of this specific judge with an eye towards influencing the outcome of this specific case, on the one hand, and the more general obstruction of judicial nominees with an eye toward shifting the overall composition of the courts. While the latter is clearly permissible -- even if objectionable in some instances, the former may cross the line. In this regard, the alleged conduct here is different in kind than the past and present conduct of both conservatives and liberals in the confirmation fights.

Also, since I received lots of questions asking about my views on other aspects of the confirmation fights, here are prior posts on the history, including the Fortas filibuster and the vicious cycle of escalating obstructionism.


"Individual": Here's something that annoys me (no, I'm not saying it's wrong, just annoying) -- the word "individual" used instead of "person," as in "we punish individuals to deter them from committing crimes." Why use a five-syllable word when a two-syllable word will do? "We punish people to deter them from committing crimes" strikes me as much more accessible and less stilted.

     Sometimes, you need to use "individual" to distinguish individuals from corporations or other collectives, or to stress that something belongs to individuals one by one; "individual rights" is one example. ("Individual rights" is also something of an idiom, which is more familiar than "personal rights.") But setting that aside, "individual" seems to me to be useless formality.


Is Islam bad for economic growth? A recent study by Marcus Noland, which is receiving wide press, suggests that Islam is not bad for economic growth. I am not convinced.

The core evidence consists of cross-sectional comparisons. If you do a growth regression (think in terms of correlations, see the link for more detail), and include many relevant variables and many countries, Islam does not have a negative impact on growth. In fact under some specifications Islam has a measured positive effect on growth.

These correlations miss the point. To the extent that Islam has negative effects, it operates through indirect mechanisms. Islamic countries have a difficult time establishing democracy and rule of law and good economic policy. True, if you include enough proxy variables in the regression -- such as good policy -- the influence of Islam will wash out. Islam is an indirect cause of some problems, not the direct cause, and the direct causes may well have more statistical significance. But the point remains that Islam can influence the variables that matter.

The study uses intra-national comparisons as well. Muslims in the United States have done quite well. Muslims in India and Ghana are not poorer that non-Muslims in those countries, adjusting for the relevant variables (Malaysia of course is an exception, I might add that in the case of India Hinduism might be bad for growth too, not to mention the animism that is common in Ghana, so this is a comparative result against some not so impressive contenders.) But again this is missing the point. The fact that Islamic individuals can do well, when embedded in some other economic and legal order, does not mean that Islamic countries can sustain such institutions. In fact I think that Islamic philosophy and theology make it harder to have a liberal legal order.

I haven't covered all the relevant evidence, such as the greater wealth of Islam in medieval times, but be skeptical of this study. The real proof is in the pudding, and we are still waiting to see a truly stable and prosperous Islamic democracy.


Toast: At the dinner following the Berkman Center conference on alternatives to traditional copyright, people were suggesting various toasts, for instance ones that oppose digital rights management as a means of enforcing copyright. These, though, proved to be a bit controversial -- for instance, while I'm not a fan of digital rights management, I'm not persuaded that it's worse than the alternatives; I remain agnostic on that.

     I think I found one, though, that satisfied everyone:
To the Progress of Science and the useful Arts.
A nice generic toast for copyright conferences, I think.


Noble Savages? I had somehow missed the controversy last Summer over a San Francisco rape crisis center that required volunteers to agree that they would be comfortable participating in various seemingly unrelated political ventures, including "protesting the war and supporting Palestinian liberation and taking a stance against Zionism." Yes, a Palestinian takeover of Israel would lead to all sorts of advances for victims of domestic violence; for example, instead of victims of incest having to deal with their emotional pain, their mothers will instead simply put them out of their misery to preserve family honor.
Seriously, how come so many "progressives" consistently ally themselves with illiberal Third World movements? (In the Palestinian case, not only radical feminists but also certain gay rights activists oppose Israel with its generally Western and liberal attitudes towards women and homosexuals in favor of a Palestinian society with antedeluvian views on these matters.) Is it simply Rousseauian belief in the "Noble Savage,"* who, once liberated from oppression by modern Western forces will somehow turn out to be the model of progressive enlightenment? Or something even more silly or pernicious?

*Phrase used advisedly to try to encapsulate others' beliefs. I don't think folks in the Third World are savages (though some aspects of their cultures may be savage), nor do I think they are inherently more or less noble than individuals living in more liberal and prosperous nations.


The Saudis and Terrorism: US News' report is must reading. For what it's worth, when I was 13 I wrote a letter to President Reagan opposing the sale of AWACs to Saudi Arabia, arguing that the kingdom was authoritarian, unstable, and only a friend of convenience to the West (yes, I was a bit precocious).


Putzmeister Update: Believe it or not, inspired by my previous Putzmeister post, a reader refers me to a 2002 Federal Circuit case called Schwing [!!!] GmbH v. Putzmeister Aktiengesellschaft, in which the Court stated that "[t]here is therefore a need for pumping equipment that is capable of moving large volumes of heavy, viscous material. Such equipment needs reliable, long-lasting seals." Putzmeister attempted to meet the need with a product called the Bastardring. The first version did not work: "The Bastardring I was prone to failure due to the tendency of the elastic ring to be squeezed out of place. Putzmeister changed the configuration of its pumping technology in 1992 to the 'Bastardring II.' The Bastardring II has an annular extension on the cutting ring, but not on the shutter mechanism."


Walter Olson on David Bernstein's You Can't Say That: It's in yesterday's New York Post. (Walter is a noted author on employment law and tort law, and the founder of

Sunday, December 07, 2003


Most Annoying Christmas Song: While "Do They Know It's Christmas" is certainly annoying, especially because the relevant folks were animists and Muslims, I have to vote for "Grandma Got Run Over By a Reindeer," followed by "Jingle Bell Rock." My favorite is the Waitresses' Christmas song (Christmas Wrapping). When I'm in a bad mood, I also like "Father Christmas" by The Kinks.


What About Israel? From the Madison Capitol Times: "The point of Kinzer's piece is that Turkey -- on its own and led by Muslims -- is becoming the Mideast's first true democracy."


Whitewashing Justice Brandeis: Adam Cohen has a silly, or perhaps just poorly informed, piece in today's NY Times praising Justice Brandeis's jurisprudence in general, and his dissent in New State Ice v. Liebmann (1932) in particular:

Brandeis believed, above all, that the law had to keep pace with society. Defending an Oregon maximum-hour law, he submitted what became known as the "Brandeis Brief," two pages of law and more than 100 pages of facts about the harm from long workdays. It won the case, and revolutionized American law by focusing courts on the real-world consequences of their rulings.
This is conventional wisdom, but the conventional wisdom is wrong. The case at issue was Muller v. Oregon, involving a maximum hours law for women only. A careful reading of the case makes it clear that Justice Brewer, speaking for the Court, upheld the law because it was common knowledge that women's "constitutions" were weaker than men's and therefore women needed special workplace protections. Brandeis's brief was noted as simply further support for the conventional wisdom, but was totally superfluous to the outcome. (In fact, Oregon's neglected brief, which did contain the relevant legal citations, was probably more important to the outcome.) And while Brandeis's brief is considered a great innovation, the real credit for courts beginning to pay attention to "social facts" belongs to Joseph Lochner's attorneys, who won the (unjustly) infamous Lochner v. New York case by submitting a brief presenting statistics showing that baking was not an especially unhealthful profession, statistics the Court quite clearly relied on in ruling a maximum hours law for bakers unconstitutional in that case. In any event, the truly progressive opinion on special laws for women was issued in 1923, when Justice Sutherland wrote an opinion in Adkins v. Children's Hospital invalidating a minimum wage law for women because after the 19th Amendment, women were equal citizens and could not be discriminated agaisnt. Brandeis dissented, consistent with both his opposition to the Court's Lochnerian decisions and the utter sexism of his Muller brief. (For more on this, see my forthcoming Michigan Law Review piece, "Lochner's Feminist Legacy," here.

...New State Ice concerned an ice maker who violated Oklahoma's Ice Act by operating without state permission. Oklahoma believed ice —scarce then, and critical to preserving food — was a public concern, like electricity or railroads. The conservative court majority, skeptical of all economic regulation, ruled that Mr. Liebmann had a right to make ice.
Actually, the state had granted an ice monopoly to a few favored companies (new entrants needed to obtain a certificate of public necessity to compete, which the state wouldn't grant), and the Court was expressing traditional Anglo-American skepticism of government grants of monopolies. Only four of the Justices at the time were strong Lochnerians, but the decision was 6-2, with Justices Hughes and Roberts joining the majority, and only Justice Stone joining Brandeis.

Brandeis dissented partly as a matter of judicial deference. He noted that the Oklahoma Legislature believed unregulated ice-making would lead to "unnecessary duplication of facilities," high prices and poor service. As long as it was not acting arbitrarily, he argued, it should be able to impose its rules, whether or not the court deemed them wise.
Cohen can't take "unregulated" to mean non-monopolized without distorting history. The only regulation the relevant statute put in place was restricting entry. And does anyone in their right mind believe that government-sponsored monopolies or monopsonies give better service with lower prices than companies in a competitive market? And why isn't it arbitrary to give an ice monopoly to a politically powerful companies at the expense of other producers and of consumers?

Brandeis went on to make two more innovative points. True to his progressive values, he argued that government had an affirmative duty to seek out new approaches to the problems that confront society. The Depression, he wrote, had caused "an emergency more serious than war." Since "economic and social sciences are largely uncharted seas," he argued, the rational way to advance society was through "experimentation," the same "process of trial and error" as in the physical sciences.
Perhaps, but in fact the Oklahoma statute at issue had not been passed during the Depression, but in 1925. It was pure special interest legislation of the most reactionary sort, not an innovative response to economic emergency.
I think it's fair to say that of all the Lochner era Supreme Court's decisions invalidating economic legislation, New State Ice is probably the easiest to defend, and is a poor choice for Mr. Cohen to rest his argument upon.

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