Archive | February, 2007

Prison Rape and the Limitations of Government:

This post by Ampersand rounds up the recent blogosphere reaction to the scandal of widespread prison rape. As he notes, conservative, libertarian, and liberal bloggers all agree that more should be done to curb prison rape. Yet, he concludes, “this is a curious case where it appears that everyone agrees, yet nothing ever gets done.”

For what it’s worth, I agree with everyone else that we should do more to prevent the rape of prisoners. But the government’s failure to address the problem is not accidental. Government is responsive to those who have political power, and prisoners are the classic example of a group that has almost no power, and is generally unpopular with those who do. In most states, prisoners don’t even have the right to vote, and of course their ability to wield political power in other ways (activism; campaign contributions; lobbying, etc.) is also extremely limited. Most of the general public, by contrast, is either unaware of the problem of prison rape or doesn’t care about it very much. And, of course, measures to make it easier for prisoners to sue or otherwise alleviate their plight will be strongly opposed by prison guards unions and other influential interest groups.

This is an extreme case of an important broader lesson about the nature of government: it usually can’t be relied on to protect the political powerless or even the relatively weak. As I have blogged in the past, the same point applies (albeit with less force) to claims that a strong government will be good for the poor. Because the poor have little political power, government intervention is more likely to cut against their interests than in their favor – especially when the needs of the poor conflict with those of middle class or wealthy interest groups. [...]

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Is John McCain’s website suggestive of NAZI iconography?

It was a pleasure to see Ann Althouse at the New York Law School conference yesterday.

Ann has a post today on a disturbing line of attack on John McCain’s website, which uses as much black, white, and gray as possible:

John McCain has an aesthetically pleasing website, which is distinguished by the very low color level. Instead of the usual florid blue and red, it uses elegant, crisp black, white, and gray. Perhaps that calls to mind some beautifully photographed black and white movie. Bring on the liberal commentators, and what movie do they think of? Of course, it’s “Triumph of the Will,” which, admittedly, is a film known for its crisp black and white photography (to go along with its Nazi propaganda).

Here’s Atrios:

Imperial Stormtrooper Chic

And Ezra Klein piles on:

Atrios is right, John McCain’s new campaign web site is totally “imperial stormtrooper chic.”

The color scheme strikes me as more evocative of 1930s Hollywood than NAZI iconography. NAZI colors are black, white, and definitely (blood) red.

Here is a page of 1933-45 NAZI propaganda posters.

Here is a page of 1030s Dutch political posters, some of which appear to be pro-labor or progressive.

I have no idea how representative these selections are. While there are certainly more black-and-white (and low color) posters in both collections than one would see in the 1930s French or Swiss travel posters that are sold on the market today, that may reflect more the desire to depict travel (or food) in more colorful terms.

Germany, 1933:

Germany, 1933:

Netherlands, 1933:

Netherlands, 1933:

The four posters I copied here are neither the most, nor the least, colorful on either site. They all are from the same year, 1933.

The few FDR posters I’ve seen are not particularly colorful [...]

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Not Just Valentine’s Day — Great Leader Kim Jong Il’s Birthday:

Symposiums on Kim Jong Il’s Undying Feats Held:

Pyongyang, February 14 (KCNA) — Symposiums on the undying feats performed by Kim Jong Il were held by working people’s organizations….

The speakers profoundly explained the imperishable feats performed by Kim Jong Il for the times and history, noting that his birth was a great auspicious event which opened a bright prospect before the continuity of the Juche revolutionary cause and accomplishment of the human cause of independence.

They said Kim Jong Il, genius of thought and theory, scientifically formulated the revolutionary idea of President Kim Il Sung and steadily developed it in depth to meet the demand of the developing revolution, thus clearly indicating the road ahead of the times and humankind….

Thanks to Jules Crittenden for the pointer. [...]

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Thelonious Monk Quartet Plays Blue Monk:

One of my favorite YouTube clips these days is this terrific performance of the Thelonious Monk Quartet playing “Blue Monk.” The clip was recorded live in concert in Olso, Norway, on April 15, 1966. The wonderful Charlie Rouse is on tenor, with Ben Riley on drums and Larry Gales on bass. It’s a very tight group that by this time had been playing together for two years, and it shows. The camerawork is marvelous throughout, too. Great stuff.

  If you’re interested in hearing more, I would start with Monk’s Dream, a 1962 recording that pairs Monk and Rouse with John Ore on bass and Frankie Dunlop on drums. If you don’t mind a CD with mostly solo piano, I’m also very partial to Monk’s 1957 Prestige recording Thelonious Himself.

  UPDATE: The clip was removed due a terms of use violation a few hours after my post, which seems odd given that it was up for almost a year and had been viewed many thousands of times. (I had assumed that there was no copyright violation given how long it had been up in the open.) In any event, I have substituted a performance of ‘Round Midnight from the same concert. If this one is taken down, too, I guess it will show that some lawyers can’t find YouTube on their own — but they can find it when there’s a link from the VC…. [...]

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Of Course It’s Academic Freedom:

Asaf Romirowsky, “associate fellow at the Middle East Forum and manager of Israel & Middle East Affairs for the Jewish Federation of Greater Philadelphia,” writes in the Washington Times:

Post-September 11, the most intense debates about “academic freedom” have involved Middle Eastern studies, especially the Israeli-Palestinian conflict. The “right” to teach Israel as original sin and the Israel lobby as a Jewish conspiracy controlling America has been challenged, and, unfortunately, has produced even more virulent rhetoric and overt attacks on Jews. Academia has unconsciously exposed Jews and Israelis as the canaries in the coal mine. If universities are indicators of social trends, then anti-Semitism is becoming more acceptable in the guise of anti-Zionism. Only Jews are unworthy of having a sovereign state, thanks to various sins past and present.

Such attitudes are shockingly common on university campuses, and are protected by “academic freedom.” Does calling for the destruction of a state and the dispersal of a people qualify the protections designed by Dewey and Lovejoy? Fortunately, most Americans agree neither with the idea that Israel should be abolished nor with the blanket protections that currently constitute “academic freedom.” The gap between academia and the public is increasing, in part because on moral issues, like defending democracy against jihadi terror and rigorous free speech, the public realizes that universities are on the wrong side….

Of course arguing that Israel shouldn’t exist as a state (a view, I should stress, that I most certainly don’t endorse) is within the scope of academic freedom, both the freedom to engage in academic discussion defined narrowly (e.g., in a scholarly publication or in an academic panel) and defined broadly (e.g., in a broader political discussion on campus or off it). Whether Israel should exist as a country — or whether Palestine, the U.S.S.R., [...]

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Gun-related data for criminals who shoot police officers:

The FBI recently completed a major study of shootings of police officers. Titled “Violent Encounters: Felonious Assaults on America’s Law Enforcement Officers,” the document is not currently available on the web. The publication Force Science News, which comes from the Force Science Institute, of the University of Minnesota, Mankato, has reported on the study. Regarding firearms, FSN writes:

“Predominately handguns were used in the assaults on officers and all but one were obtained illegally, usually in street transactions or in thefts. In contrast to media myth, none of the firearms in the study was obtained from gun shows. What was available ‘was the overriding factor in weapon choice,’ the report says. Only 1 offender hand-picked a particular gun ‘because he felt it would do the most damage to a human being.’

Researcher Davis, in a presentation and discussion for the International Assn. of Chiefs of Police, noted that none of the attackers interviewed was ‘hindered by any law–federal, state or local–that has ever been established to prevent gun ownership. They just laughed at gun laws.'”

The summary of the study also provides information that many of the criminals who attack police officers are fairly skilled at gun use, and, unfortunately, diligent in their training.

The FBI website says that “Violent Encounters: Felonious Assaults on America’s Law Enforcement Officers is available from the UCR Program Office, FBI Complex, 1000 Custer Hollow Road, Clarksburg, WV 26306-0150 or by calling 888-827-6427.” I tried the 888 number once, and got a recording. [...]

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Is More Money the Answer to the Public Use Problem?

My final post responds to the common suggestion that more money is the “answer” to the public-use problem. (Many thanks, again, to Eugene for inviting me to guest blog this week. It’s been great fun!)

First, The Relationship Between Compensation And Deterrence Is Uncertain

“More compensation” proponents frequently argue that above-market compensation will deter inefficient takings. The difficulty with this argument, however, is that Takers tend to respond to political incentives rather than economic ones. And, in the economic development context, political incentives may favor overinvestment in questionable projects. For example, the fact that Takers n frequently give away property as part of an “incentive package” may suggest that the deterrent effects of increased compensation will be limited.

Proposals to limit Takers ability to spend state and federal funds on economic development takings offer a more promising way to deter inefficient projects. While Takers may well perceive that the political costs of spending someone else’s money are very low, local officials spending local money are constrained by the political need to keep taxes low. They also operate underlegal constraints that disfavor an aggressive takings policy, including debt- and tax-limitations. Were local Takers forced to internalize the costs of their takings, it is reasonable to assume that eminent domain would become a much less attractive economic development tool. (One potential pitfall of this approach is that it might increase the risk of undercompensation, as many state relocation assistance laws limit protection to projects funded by state or federal funds.)

Second, Higher Compensation May Impede Political Resistance

If higher compensation levels will not deter inefficient government takings, then effective political resistance becomes all the more crucial. Yet, Takers may use high compensation levels to limit resistance. Both Kelo and Poletown illustrate this phenomenon. In Kelo, only seven property owners objected to the [...]

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Global Warming For Thee But Not for Me:

The Associated Press has a story about climate change that has been getting some play in the blogosphere:

  It may be cold comfort during a frigid February, but last month was by far the hottest January ever.
  The broken record was fueled by a waning El Nino and a gradually warming world, according to U.S. scientists who reported the data Thursday. Records on the planet’s temperature have been kept since 1880.
  Spurred on by unusually warm Siberia, Canada, northern Asia and Europe, the world’s land areas were 3.4 degrees Fahrenheit warmer than a normal January, according to the U.S. National Climatic Data Center in Asheville, N.C. That didn’t just nudge past the old record set in 2002, but broke that mark by 0.81 degrees, which meteorologists said is a lot, since such records often are broken by hundredths of a degree at a time.

  Over at Powerline, Scott Johnson (who I had the pleasure of meeting in person a few months ago) suggests that the story may be all hot air. He points to the following comment from reader William Katz:

  The story lists the usual “global warming” horrors. Then, toward the end, the writer casually informs us that January temperatures in the U.S., presumably the home of environmental original sin, were essentially normal, “ranking only the 49th warmest since 1895.”
  As Gilda Radner used to say: “Never mind.”

  I’m no expert in global warming, but isn’t Mr. Katz wrongly assuming that the causes and effects of climate change occur in the same place? It’s been 15 years since I looked at this issue closely, but I thought that it was called “global warming” and not “national warning” or “New Jersey warming” because potential causes of climate change introduced in one place tend to have a global effect. [...]

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Brian Tamanaha on “Popular Myths About the Legal Realists”

At Balkinization, Brian Tamanaha has an interesting post on common misunderstandings of Legal Realists. It resolves some contradictions that I had never understood (in part, I had taken Jerome Frank, who is a bit of an outlier, as a typical Realist).

Llewellyn’s point was that the Realists were indeed critical of mechanistic accounts of judicial decision-making—as deductive and exclusively rule-focused—but they did not commit the opposite error of suggesting that judging is purely subjective and not legally constrained. Rather, the Realists brought attention to other stabilizing aspects of the craft of law and judicial decision-making besides just the legal rules. While they denied that law was certain to the extent that formalism portrayed, they agreed that there was a great deal of certainty and predictability in law (though not attributable to the legal rules alone). They also argued that in some cases policy decisions were called for and should be done openly by judges, although they recognized that many cases were routine and determined by the legal rules.

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Trouble with This Site?

If you’re now having trouble with the site that seems to be linked with the digg code — e.g., occasional error messages and offers to debug the script, conditions that sprung up after late Wednesday night, when we turned it on — please post a comment or drop me an e-mail (volokh at Our digg code has some temporary flaws (which we hope will go away in a few weeks, as a new PowerBlogs feature is added), and I wanted to know if they affect enough people that we should just drop the code.

I’m looking for problems you’re having now — we had more problems Thursday morning, but I think we fixed most of them. Thanks! [...]

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Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:

In his recent testimony before the Senate Judiciary Committee, Justice Anthony Kennedy forcefully argued for a pay increase for judges and against allowing TV cameras in the Supreme Court.

Perhaps needless to say, I disagree with Justice Kennedy on both issues. For my critique of arguments for a judicial pay increase, see here, here, and here. In addition to the various arguments for a pay increase that I have criticized in previous posts, Justice Kennedy adds the claim that “judges are being lured off the bench into academia” because law professors supposedly have higher salaries than judges do. Unfortunately for Kennedy, there is little if any proof that significant numbers of federal judges are in fact leaving the bench to become lawprofs. Indeed, it is far more common for professors to leave academia to become judges than vice versa. I can think of numerous prominent law professors who have left academia for the judiciary. The fact (noted in the article) that one district judge recently left the bench to become Dean of Duke Law School (one of the top 15-20 schools in the country) is hardly proof of a trend.

Moreover, as Paul Caron of Taxprof Blog (a supporter of judicial pay increases) points out, the average law professor at “full professor” rank makes about $136,000/year, almost $30,000 less than the salary of a federal district judge. Only 3 of 88 law schools responding to a recenty survey cited in Caron’s post reported average full professor salaries higher than $165,000/year.

As for TV coverage of the Court, I remain unpersuaded by Kennedy’s arguments against it, though I won’t analyze the issue in detail here. Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to [...]

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Education Week Online Survey on Utah School Choice Plan:

Education Week polls site visitors on whether “Utah’s plan to offer a statewide school voucher program is a good idea.”

I think the results of such self-selected online surveys are bunk, since they’re unrepresentative of the views of any group other than the group that happened to answer the survey. On the other hand, while I wouldn’t quote such surveys or run such surveys, I’m not averse to participating in such surveys …. [...]

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“Journalism Programs End Race Criteria”:

So reports an AP story:

More than two dozen urban journalism programs throughout the U.S. will not use race as a criteria for enrollment under a settlement with a white high school student who was rejected by one of the programs.

The Dow Jones Newspaper Fund and other principals agreed to the settlement in return for the Center for Individual Rights withdrawing its legal challenge of the programs, both parties said Wednesday.

In September, the center filed the class-action lawsuit on behalf of Emily Smith, 16, who said she was accepted last spring to the Urban Journalism Workshop at Virginia Commonwealth University. One week later, she said, she was rejected after program sponsors learned she was white.

Under terms of the settlement, neither VCU, Dow Jones nor any of the principals admitted to any wrongdoing. VCU also agreed to pay $25,000 to Ms. Smith and her attorneys and admit her to the program next summer….

The settlement requires VCU and other programs sponsored by Dow Jones to select students “without regard to race.” The programs also agree to publicly acknowledge they will offer no preferential treatment or discriminate against any prospect “on the basis of race or ethnicity.” …

I know the CIR people well, and think very highly of them — this sounds like quite a significant victory. [...]

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