Wednesday, January 14, 2004

The Civil Rights Cases: I'm teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875's prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress's power under the 13th and 14th Amendments. In debates over Lochner and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority's opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involvig inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy (see link for a further discussion) the debate over Lochner has been.
UPDATE: Tim Sandefur has an interesting response, arguing that the public-private distinction enforced in the Civil Rights Cases reflects the same sort of classical liberal view of state and society as Lochner. Perhaps, but the liberal scholars I've noted seemed to imply that the Civil Rights Cases themselves were decided based on a Lochner-like liberty of contract or property rights theory, which is simply false. And I think the ultimate schism in the Civil Rights Cases Court was over how much the Reconstruction Amendments changed the balance of federal-state power, especially vis-a-vis Congress's power to aid African Americans, and not over generally differing views of state and society. Harlan was the lone dissenter in the Civil Rights Cases, and though he dissented in Lochner, he also either wrote or joined some of the most significant liberty of contract cases. Overall, Harlan falls into both the nationalist and "moderate Lochnerian" camps, supporting strong Congressional regulatory authority in a variety of areas, but also having a somewhat narrow view of the states' police police powers.
FURTHER UPDATE: A reader agrees with my point on Lochner, then adds,
the much more interesting--and much more damning--debate goes to the legitimacy of the "federalist" reasoing deployed in The Rights Cases. In short, the Court was wrong. The 13th and 14th Amendments by their very terms are assertions of federal power vis-a-vis states and citizens. Relying on southern states' civil rights laws was really
laughable in the way it blinked at the enforcement problems. Remember, the 14th amendment's text: "nor deny to any person...equal protection of the laws." Enacting a law denying equal protection and failing to enforce laws that "guarantee" equal protection both sound like denials to me. Further, the 14th amendment does not preclude a *private remedy,* but at most merely defines a violation as requiring state action.
I agree, but in 1875, and even 1883, it was not clear that state courts would fail to guarantee blacks' access to common carriers and inns, and indeed there were successful lawsuits in southern state courts against train companies and others who mistreated black customers. The situation in the South was rather fluid until the 1890s, when Jim Crow hardened and blacks were disenfranchised. That said, it's also true that the Supreme Court stuck to its guns in a few cases in the first decade of the 20th century, holding that individuals denied enjoyment of their civil rights by private action had remedies only in state courts that clearly weren't going to aid them. In short, I agree with the reader that a violation of "equal protection of the laws" can include states not enforcing facially equal laws, and that, if Congress acts to redress such a situation, it is acting within its powers under Section 5 of the 14th Amendment. But the Supreme Court still has to distinguish between such situations, and pure federal power grabs, as it did in the recent case of United States v. Morrison, holding the Violence Against Women Act unconstitutional in part based on the Civil Rights Cases. It's a debatable point, but I find that it streches credibility to believe that women in the 1990s were being systematically and unequally denied remedies in state court for violence committed against them by men.
Bernstein Critics: Thanks to Eugene's defense of me below, but it raises an interesting issue: there are a few folks out there who love to complain about my posts (you know who you are). Others have complained about other Conspirators. [Edit: And I don't mean occasional disagreement or criticism, I mean, "So and so is ruining the Volokh Conspiracy."] Yet, there is handy-dandy way to exclude any of us from your daily reading:[name of blogger], which regular readers are aware of. So why do the complainers continue to read my (or their) posts? I can only assume that I (or they) fall into the "love to hate" category, the way some conservatives just can't wait to fisk Paul Krugman, or some liberals curse at Rush Limbaugh every day (halevai I should have their audiences!) Interesting phenomenon, that.
More on BK: My previous post on Burger King's "generous" offer to give customers a Whopper without a bun for the same price as a Whopper with a bun reminded me of an even better story about BK. In the days before the Veggie Whopper, at a time when I subscribed to Vegetarian Times, I recall that BK told vegetarian inquirers that a vegetarian Whopper was available--a Whopper with the normal bun, lettuce, tomato, pickle, and mayo, but without the burger patty. Burger King "generously" offered this vegetarian version of the Whopper for exactly the same price as a regular Whopper.
BTW, the best deal in vegetarian fast food is by far and away Taco Bell's Bean Burrito[edit: I have yet to try the new "Cheesy Bean 'n Rice Burrito]--order it without the cheese if you are vegan or are watching your weight, or just don't like icky Taco Bell cheese. It's only 79 cents and quite tasty (I have visions of Tyler, who is of course an expert on local ethnic dining, cringing as he reads this).
UPDATE: I've been reminded to mention the short-lived left-handed Whopper. And here is evidence that as of 2001, it was possible to get charged more for a Whopper meal sans meat than for a regular Whopper meal.
Talk about Jews getting on people's nerves: A blogger complains that my friend and coblogger David Bernstein's posts "about judaism" are "getting on [his] nerves," and says that if David doesn't "shut up about judaism (or at least post about something else every once in a while)," or else the blogger will "chang[e] the permalink" ("or maybe not"). I'm actually delighted that David posts a considerable amount about Israel and about American Jews (not, technically speaking, about Judaism), as well as about lots of other topics (see here for all David's recent posts, which include various other subjects).

     If people dislike posts about topics related to Israel and to Jews, and think it would be best if the bloggers "shut up" about the subject, then by all means those people should change their permalinks or do whatever else it takes to insulate them from such apparently annoying, unimportant, or unworthy topics.
Silent letters: We all know about the common "silent e," but which letters in English are silent at least in some words? "Silent" is, I realize, not a fully well-defined term, but I mean a letter that is not pronounced (rather than just pronounced in a distorted way, as the first "l" in "colonel"). I exclude situations where two letters in a row have the same sound, for instance the last two letters in "bass" or "clock"; I do not treat either as silent. A word is acceptable if it (and the pronunciation that shows the letter's silence) is listed as an English word in any standard online dictionary. Don't complain that the word is "really foreign" because it's borrowed from a foreign language. Most English words were borrowed from some other language.

     I've put up my current tentative answer here; e-mail me if you have words that match some of the letters for which I don't yet have words. No need to send any words for letters for which I already have words, unless the current word is potentially controversial, and the replacement is open-and-shut.

UPDATE: Got lots of e-mails, too many to respond to all individually, I'm afraid, though I appreciate all of them. We now have everything except f, q, and v. "Lacquer" and such don't qualify, I think, for the same reason that "dock" doesn't qualify; "halfpenny" is possible for "f" (thanks to Ken Hirsch), and, surprisingly, "fifth," but apparently both are sometimes pronounced with the f and sometimes without; "chef d'oeuvre" and "roman a clef" are listed by my New Shorter Oxford as still being foreign phrases; "marijuana" is the only one for "j," and I'm looking for something better. So if you have genuine silent f's, silent j's, silent q's, and silent v's, let me know.
Primary prediction restated: A year and a week ago, I said the following.
With the Democratic presidential field almost complete, I offer my first NH primary prediction, 55 weeks in advance. Richard "Eyebrowless Man" Gephardt, who utterly failed to connect with NH voters in 1988, will utterly fail to do so again in 2004. Protectionism, unionism, and midwestern agriculture subsidies just aren't the core issues for NH Democrats. He will finish no better than fifth, behind at least Kerry, Lieberman, Edwards, and Dean. In the 1984 NH Democratic primary there were Democrats who finished behind write-ins for Ronald Reagan on the Democratic ballot. Success for Gephardt in NH will be finishing ahead of write-ins for Bush, and ahead of Al Sharpton; and he might not pull those off.
Latest tracking poll results:Gephardt in fifth place, behind Dean, Clark, and a Lieberman-Kerry tie, within the margin of error of Edwards, Kucinich, and Sharpton.
Conundrum for the day: Here is a philosophical problem I am working on, it also draws on some aspects of tort law, your comments are always welcome:

"There is an arbitrariness in defining the relevant class of risky events. In my lifetime as a driver, I stand some (fairly low) chance of killing an innocent pedestrian. Few people would argue that I should be prohibited from driving. Assume, however, that science prolongs (fit) human life forever, at least unless you are struck down by a car. My chance of killing an innocent pedestrian then would approach certainty, given that I plan to continue driving throughout an eternal life. In fact I could be expected to kill very many pedestrians. Should I then be prohibited from driving? When we make a prohibition decision, should we measure the risk of a single act of driving, or the risk of driving throughout a lifetime? Measuring the bundled risk appears to imply absurd consequences, such as banning driving for people with sufficiently long lives.

Alternatively, measuring the risk of only the single act is vulnerable to counterexamples. Imagine an involuntary game of Russian roulette with very many chambers in the gun, played very many times against me. The chance of my death from any single firing is very small, but surely we would prohibit such a game, looking at the high overall risk of the bundle. In this case we consider the bundled risk, but does this mean that we should stop immortals from driving cars?"

Addendum: I am posing this question in a framework where individual rights have some meaning. So if a given activity (however defined) crosses some threshold level of risk, vis-a-vis its victims, we will consider prohibiting it, even if the associated benefits with the activity are high. We remain with the question of how to circumscribe the activity and thus arrive at a unique measure of risk. Of course some people will view this dilemma as an argument against the idea of rights, and in favor of utilitarianism. Also, please note that this is a fabricated scenario, as philosophers are wont to do. It doesn't matter whether in reality the car will someday be superseded, accidents will cease to be deadly, that the driver is perhaps also a pedestrian, or whatever. It is a deliberately stripped down example to force us to confront how we think about compounded risks.
More on Brazil: Since this blog is now your source for Brazilian immigrant fingerprinting news, we bring you this other tidbit, again from our correspondent David M. Rosenberg:
A flight crew from American Airlines (originating in Miami) refused to submit to the fingerprinting process in São Paulo this morning. The captain allegedly made an obscene gesture to the Brazilian police officers, and the crew was detained and brought to a police station to give a statement. Apparently, the crew will have to return to the US. There was no problem with the passengers on the flight. As of now there is no word from American Airlines, and it is not clear whether or not this incident will impact on the ability of the crew to gain future entrance into Brazil.
Pretty unprofessional behavior, it seems to me. If you want to fly into a country -- especially as a professional part of whose income flows from interacting with the country -- you should follow its immigration laws, especially ones that impose such relatively minor burdens.
Over at TNR: The New Republic website is hopping in the pre-Iowa-caucus countdown.

TNR's [entirely correct] endorsement of Lieberman
The multi-day brawl among TNR writers about that endorsement
Succinct cases for several of the other candidates: Robert Greene for Wesley Clark, J. Peter Scobolic for Clark, Michael Crwoley for Dick Gephardt, Michelle Cottle for John Edwards, Jonathan Cohn for Howard Dean.

Noam Scheiber has come out as the author of &c, which is now his personal blogspace. Combine that with Easterblogg, Dean-o-phobe, and Ryan Lizza's Campaign Journal, it increasingly looks like the least blog-like TNR web-only content is the column space rotated between bloggers Dan and me.
Is this what conservatism has come to? President Bush is planning a new pro-marriage initiative, read The New York Times account. The centerpiece calls for the government to provide $1.5 billion in training "to help couples develop interpersonal skills that sustain "healthy marriages."" In other words, subsidized marriage education and counseling. One bureaucrat from HHS assures us that "All services will be voluntary." The Times speculates whether this is not a sop to conservatives, given that Bush may not offer a strong and full push for a constitutional amendment to ban gay marriage.
Information Requests: Sometimes, when I ask readers for information about a given topic, I get reader emails beginning with "I'm sure many people have mentioned X ..." Sometimes that's true, in which case I will update my post to note that I now now about "X". Often, however, the reader who sends this is the only reader who informed me about "X," and "X" is very interesting So, don't hesitate to respond to a query from me or another blogger; information that you think is obvious or well-known may not be.
Suicide Murder in Israel: Two interesting things about today's suicide murder in Israel. First, the bombing occurred at a checkpoint for Palestinian workers. While Israel is blamed for "immiserating" the Palestinians by cutting off their jobs, whenever Israel tries to let more Palestinians work, Hamas, Jihad, et al. intentionally target the checkpoints, to force Israel to crack down and ensure that Paletinians stay poor and miserable, and thus more likely to support terror! So much for Hamas being a "social welfare" organization, as France has argued. Second, the bomber would have been caught but for Israeli squeamishness about having male soldiers inspect a Muslim woman. Muslims demand respect for their sensibilities, but how often do they condemn their fellow Muslims when they abuse Western sensitivities to their concerrns to commit suicide murders?
Prescient Warnings about Civil Rights Legislation: It is well-known that opponents of the 1964 Civil Rights Act warned that it would lead to racial preferences, and that these concerns were pooh-poohed by proponents. I am looking for other examples of warnings by opponents of the Act labled "extremist" or "hysterical" at the time that have been vindicated, whether in the '64 Civil Rights Act itself or in subsequent legislation. I'm not looking for "States Rights" arguments, but arguments that, for example, the public accommodations provisions would eventually lead to the regulation of private clubs, that the list of groups covered by civil rights laws would eventually expand dramatically, etc. Is there a good book or article describing the arguments made against the Act? (I recognize that some of these arguments were insincere, as they were made by folks with a segregationist agenda, but that does not mean that they turned out not to be prescient).
A good example of what I'm looking for is Eugene's now-famous post on how opponents of the ERA warned in the '70s that it would eventually lead to court-imposed gay marriage.

Tuesday, January 13, 2004

The Other Middle Eastern Refugees: Interesting piece in Ha'aretz. My girlfriend's parents and their families were among the thousands o Jews forced to flee Iraq, leaving their (substantial) property behind, 50+ years ago. Her late mother left to her children the deed to the land her father bought for her in Baghdad when she was born.
Silence in school: I'm not sure that "completely bann[ing] all talking [in an elementary school] before and between classes and at lunch time" is a First Amendment violation, as Tim Sandefur suggests. But it seems to me to be a mighty silly and unworkable rule, likely only to teach students to have contempt for rules, and for school.
Almost fair: Dahlia Lithwhick's opinion piece in Slate on today's Supreme Court oral arguments in a disability accommodation case has a pretty striking item:
You'd have to look long and hard to find a civil rights plaintiff more deserving of empathy than George Lane. But then you'd also have to look long and hard to find five Supreme Court justices capable of manifesting empathy. Today is a triumph of mean-spirited grousing at the high court, all sung to the dolorous tune of "What do those handicapped people want from us anyway?" . . .

What [a sovereign immunity case, under the Court's current sovereign immunity / 14th Amendment jurisprudence] always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated. The court still worries about racial discrimination, and Chief Justice Rehnquist was won over by the plight of working mothers in last year's big sovereign immunity case -- Nevada Department of Human Resources v. Hibbs. But, sadly, the court just doesn't seem to care very much about the disabled. It's almost fair to say that they find the disabled annoying -- at least that is the tenor of today's session. . . .
Well, here's a tip: When it's "almost fair" to say something, that's a good signal that it's actually not fair to say it. (Otherwise, it would be "actually fair," rather than "almost fair.") No, there's no evidence that the Justices find the disabled annoying. Rather, they're trying to figure out how the longstanding state sovereign immunity principles interact with disabled rights statutes; one can answer that the sovereign immunity principles (which, incidentally, I don't like either) can prevail without being annoyed by the group that the statute is trying to protect.

     Another bit of evidence that the column is at most "almost fair" comes in the column's discussion of the distinction between intentional discrimination and failure to accommodate:
Scalia starts: "It depends on what's meant by discrimination. The handicapped not getting an elevator may not be a constitutional violation." [Deputy Solicitor General Paul] Clement replies that when the handicapped can't vote, that's a fundamental right being burdened, and it should trigger strict judicial scrutiny. Rehnquist says that voting discrimination means "a person is not allowed to vote, as opposed to not being facilitated in being allowed to vote."

Clement sees no difference. Nor do I. When groups are systematically barred from the polls, you have a constitutional problem whether you call it a denial or a refusal to facilitate. But Scalia contends that being "turned away because there is no elevator is not a constitutional violation." He adds, "An inaccessible voting place means nothing at all. It merely means the state didn't go out of its way to accommodate the handicapped."

You know, just like the states didn't go out of their way to integrate schools. Who are these people?
Actually, school segregation is an excellent example in Scalia's favor. "The states didn't go out of their way to integrate schools" is simply a mischaracterization of what many states did -- many states did explicitly, by law, segregate schools. The uncontroversial examples of unconstitutional segregation come precisely from cases of explicit legal discrimination based on race.

     When you get to situations where the states really simply "didn't go out of their way to integrate schools" -- for instance, when there is residential segregation (not mandated by state law), so that some schools end up being mostly black, others mostly Hispanic, and others mostly white -- the situation is much more controversial. Under current federal constitutional law, a state does not have a constitutional duty to "go out of [its] way to integrate" such schools. Some people argue that the state should have such a duty, either constitutional or statutory. But that's a much more controversial question -- certainly not the sort of issue one can just contemptuously dismiss with "Who are these people?"

     Even opinion pieces about the Court work rather better, I think, when they take care with their analogies, and don't haughtily condemn plausible distinctions with suggestions that all decent people must surely share the writer's perspective. And when they strive to be actually fair, not almost fair.

UPDATE: Dahlia Lithwick, whose work I have often much admired, and whom I like a great deal personally, e-mails me with this:
One of the drawbacks to not having cameras at the court is that I can only assert, without good proof, that some of the justices (including Scalia) were so full of contempt for the disabled yesterday that it was shocking. Maybe the transcript will capture some of this, likely not.

You and I have disagreed before about questions of nuance and tone. They are tough to measure empirically. Part of my job is to report those things -- subjective as they may seem.
     This is a fair point -- Lithwick was there, and I wasn't. I am always quite skeptical when people infer others' attitudes from tones of voice or facial expression. My sense is that such subjective inferences often reflect more the inferrer's attitudes towards the other person, rather than the other person's attitudes towards the subject. If I think that X is clearly in the right, then skepticism towards X's legal position -- especially expressed in an impassioned legal argument -- can often be misperceived by me as contempt towards X. But perhaps my skepticism is overstated, at least in this case; I leave it to readers to decide.

FURTHER UPDATE: Another reader, who was also there, says he had a similar reaction to Lithwick's, though as to only a couple of the Justices, not the Court generally. I stand by my skepticism, but I wanted to pass this along because it does strengthen Lithwick's argument.
Sitegeist: Check out the 2003 Year-End Google Zeitgeist. Thanks to Jim Herd for the pointer.
Hold My Buns! Drudge links to a report noting that bowing to the low-carb craze, Burger King will now offer bunless Whoppers, for the same price as Whoppers with buns. How is this different then in the past (1) ordering the Whopper, but stating, "no bread please"; or (2) ordering the Whopper, and throwing the bread away, feeding it to birds, etc.?

Next thing you know, automakers will "offer" cars without tires for the same price as cars with tires. New advertising slogan for Burger King: "Offering you less, for the same price!"
Reading recommendation: Curiously enough, Josh Chafetz and I both finished Iain Pears' The Dream of Scipio yesterday. It's quite strikingly different from Pears' earlier An Instance of the Fingerpost -- more philosophical, more emotionally intense and absorbing and ultimately draining, and more romantic. Instance is fun; I'd have a hard time saying that about Scipio. As someone drawn to intellectual disciplines of commentaries-upon-commentaries, I did enjoy Scipio's device of using a text written in the earliest plotline as a key part of the two set later; but I think Fingerpost's related literary device (interlocking plots told from different character's perspectives) was ultimately more successful. I think I'd finally say that Scipio doesn't fulfill its ambitions quite as well as Fingerpost fulfills its ambitions-- but that Scipio's ambitions reach higher. I highly recommend both.

I really ought to have blogged about Instance (one of my favorite novels) before when people were talking about Quicksilver-- Instance is very different from Quicksilver, but those who enjoyed the latter might well enjoy seeing a different historical-fiction take on some of the same characters, in a different literary genre (murder mystery/ political intrigue) and style (much as I love Neal Stephenson, Instance is vastly superior to Quicksilver as a piece of literature). John Locke, for one, comes across rather differently in the two books.
The Cubs' intellectual property claims: ESPN reports:
The Chicago Cubs and owners of the famous building-top seats have come to a 20-year agreement that would require the owners to pay the team millions of dollars each year, the Chicago Tribune reported in Monday's editions.

The owners of 11 buildings will pay the Cubs 17 percent of their gross revenue, which, with approximately 1,700 rooftop seats, could cost owners more than $2 million a year, Alderman Thomas Tunney of the 44th Ward told The Tribune.

The settlement stems from a December 2002 lawsuit brought against the owners by the Cubs after the team's plans to expand the bleacher sections in Wrigley Field failed. The team accused the owners of stealing the team's product, copyright infringement and unjust enrichment at the Cubs' expense.

Owners of two of the buildings have not agreed to the settlement and plan to fight the agreement in court. . . .
The two dissenting owners are in the right on the copyright issue, I think, and ought to win on that if they fight it. But the "unjust enrichment" claim is much closer.

     Copyright: The Cubs' copyright infringement claim is, I think, nearly frivolous. First, it seems likely that a sports event is not a copyrightable work. The broadcast of the event may be, because of creative decisions involved in how to film the event. But the action itself is probably not, because it's not creative expression. As the U.S. Court of Appeals for the Second Circuit held several years ago as to basketball games,
In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. ? 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works." The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.

Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.

What "authorship" there is in a sports event, moreover, must be open to copying by competitors if fans are to be attracted. If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship -- figure skating, gymnastics, and, some would uncharitably say, professional wrestling -- a performer who conceives and executes a particularly graceful and difficult -- or, in the case of wrestling, seemingly painful -- acrobatic feat cannot copyright it without impairing the underlying competition in the future. A claim of being the only athlete to perform a feat doesn't mean much if no one else is allowed to try.

For many of these reasons, Nimmer on Copyright concludes that the "[f]ar more reasonable" position is that athletic events are not copyrightable. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright ? 2.09[F] at 2-170.1 (1996). Nimmer notes that, among other problems, the number of joint copyright owners would arguably include the league, the teams, the athletes, umpires, stadium workers and even fans, who all contribute to the "work."

Concededly, caselaw is scarce on the issue of whether organized events themselves are copyrightable, but what there is indicates that they are not. See Prod. Contractors, Inc. v. WGN Continental Broad. Co. , 622 F. Supp. 1500 (N.D. Ill. 1985) (Christmas parade is not a work of authorship entitled to copyright protection). In claiming a copyright in the underlying games, the NBA relied in part on a footnote in Baltimore Orioles, Inc. v. Major League Baseball Player's Assn. , 805 F.2d 663, 669 n.7 (7th Cir. 1986), cert. denied , 480 U.S. 941 (1987), which stated that the "[p]layers' performances" contain the "modest creativity required for copyrightability." However, the court went on to state, "Moreover, even if the [p]layers' performances were not sufficiently creative, the [p]layers agree that the cameramen and director contribute creative labor to the telecasts." Id. This last sentence indicates that the court was considering the copyrightability of telecasts -- not the underlying games, which obviously can be played without cameras.
The Baltimore Orioles case that the Second Circuit cites does indeed suggest the contrary; but the Second Circuit is probably right in dismissing this as tentative and nonbinding dictum.

     But more importantly, even if a game is copyrightable, public viewing of the game doesn't violate any of the copyright owner's exclusive rights under the Copyright Act. It's not a reproduction. It's not a preparation of a derivative work. It's not distribution of copies of the work. It's not a public display of a copy of the work. And it's not a separate public performance of the work -- the performance is taking place on the field, with the copyright owner's authorization, and letting people onto your roof to see it isn't a separate performance. It strikes me as an open-and-shut copyright case, so solid that it should lead to the building owners not just winning on the copyright issue if the case comes to court, but also getting awarded attorney fees on the copyright portion of the case.

     Misappropriation: The harder question is whether the building owners' sale of viewing seats constitutes "misappropriation," a separate state-law tort, which does sometimes prevent people from supposedly unjustly enriching themselves by free-riding off the investment of others.

     In Illinois, the boundaries of the tort haven't been well-defined. The general principle is that courts must consider whether "the plaintiff's pecuniary reward for producing its intangible product would be severely reduced if other competitors could avoid production costs" by merely free-riding on the plaintiff's work, but at the same time keep in mind "that freedom to imitate and duplicate is vital to our free market economy." Board of Trade of City of Chicago v. Dow Jones & Co., Inc., 456 N.E.2d 84 (Ill. 1983). But naturally, these considerations are almost always in tension with each other. In this case, neither factor is very strong: The building owners' actions aren't likely to dramatically undermine the Cubs' revenue, so the plaintiffs' misappropriation case isn't that strong; but the building owners aren't really being that creative in their imitation and duplication, either, so the defendants' defense isn't that strong, either. The Cubs can argue that it's unfair to let neighbors free-ride off the Cubs investment. The building owners can argue that they have traditional rights as property owners to let people onto their property to watch whatever is visible from the property. It's therefore quite hard to predict just how the courts will decide the misappropriation claim.

UPDATE: Reader Alec McAusland suggests that the building owners may have reasons for settling beyond the fear of legal liability. Here's a Chicago Tribune article:
Also, said one rooftop source, the Cubs have agreed not to install windscreens blocking rooftop views as they did during the 2002 season.
Deception scandal at USA Today, involving foreign correspondent and Pulitzer Prize finalist Jack Kelley. Howard Kurtz reports in the Washington Post; here's the USA Today story about this; and The Zionist Conspiracy argues that a Kelley story that painted a highly unflattering picture of Israeli settlers was fabricated (USA Today says that "confirming the Jewish settlers story appears to be impossible"). I'm not up on all the details, but it seems like quite a problem. Thanks to Carolyn Stern for the pointer.

UPDATE: Reader Andrew Lazarus writes:
The Hebron settlers are absolutely awful (even in times of quiet they go on rampages against Arabs that are prosecuted in the most leisurely manner), but the Kelley story looks FAKE to me.

For security reasons (I assume), taxis in Israel are color coded. Israeli taxis are WHITE. Palestinian (West Bank) taxis are YELLOW. Settlers would never fire on a white taxi without at least investigating the occupants. I'm amazed even a confabulating journalist missed the color codes; I noticed it literally on the taxi ride from the airport on my first arrival.

Israel also used to color-code license plates even within the country, with Jews and Israeli-citizen Arabs getting different colors. This was dropped in the mid-1960s for a system where Arabs got plates with distinctive numbers. I believe this, too, was abolished, in the 1990s, but can still be seen on legacy plates.
Note that I have no independent knowledge on this subject (either on whether Hebron settlers are absolutely awful, or on the taxi color-coding item), but I thought it was passing along as one data point.

FURTHER UPDATE: Joe Schick, who posted the Zionist Conspiracy post cited above, also writes:
Further to the point made by Andrew Lazarus about the color of taxis, Kelley's reference to Highway 60 as the place where the shootings occurred is very suspect. That's the main road in the West Bank, going from the Ramallah area in the north to the Hebron area in the south. There are a number of IDF checkpoints on the highway and many Palestinians drive through, but USA Today could not find a single Israeli soldier or Arab civilian who witnessed anything resembling Kelley's report.
Reply and rejoinder: In the spirit of blogging, I note that Michael Knox Beran has responded to my critique of his article about slavery and the founders. Today's a teaching day so no rejoinder from me; and a fourth round of comments probably exceeds most readers' interest anyways, so I'll let my earlier comments stand and give Beran the last word.
Creative cities: do they grow more rapidly? Richard Florida, a Carnegie Mellon professor, has been arguing that cities must become trendy places to compete in the new economy. His book The Rise of the Creative Class has been a big hit. In his view a city should try to attract gays, bohemians, and ethnic minorities, all to lure creative workers. Those workers will in turn start innovative, fast-growing companies. To get entrepreneurial residents, Florida claims that cities should spend heavily on cultural amenities and adopt a progressive social stance.

This sounds intriguing but unfortunately it does not fit the facts. Read this devastating review. Here is one excerpt:
"The professor's creative index—a composite of his other indexes—lists San Francisco, Austin, Houston, and San Diego among the top ten [creative cities]. His bottom ten include New Orleans, Las Vegas, Memphis, and Oklahoma City, which he says are "stuck in paradigms of old economic development" and are losing their "economic dynamism" to his winners. So you'd expect his winners to be big job producers. Yet since 1993, cities that score the best on Florida's analysis have actually grown no faster than the overall U.S. jobs economy, increasing their employment base by only slightly more than 17 percent. Florida's indexes, in fact, are such poor predictors of economic performance that his top cities haven't even outperformed his bottom ones. Led by big percentage gains in Las Vegas (the fastest-growing local economy in the nation) as well as in Oklahoma City and Memphis, Florida's ten least creative cities turn out to be jobs powerhouses, adding more than 19 percent to their job totals since 1993—faster growth even than the national economy."

Nor do these same "creative cities" generate more small-size firms or attract more professionals. Read the whole critique, it is an object lesson in debunking pseudoscience. It also turns out that Detroit, a favorite city of mine, has been remarkably entrepreneurial of late.

Monday, January 12, 2004

Backing Up My Assertion: Several readers questioned whether Jews really give half of all money raised by the Democratic Party. I've seen this figure quoted for years, and it seems well-accepted. Here, for example, is the Washington Post in December: "Jews provided at least half the money donated to the DNC in the 1998 and 2000 election cycles". Another Post article, however, qualifies this by noting this refers solely to donations by individual donors, and does not take into account corporate and labor union donations, which have been, to say the least, substantial.

Some of the readers who wrote to me fear that mentioning such figures will stoke anti-Semitism. In my view, the high levels of Jewish participation in political activism is nothing to be ashamed of (though I'm not thrilled with many of the directions that activism tends to take), and, indeed, should be a badge of honor. As full, first-class citizens of the U.S., Jewish individuals have just as much right to donate to candidates as anyone else--they aren't doing so as part of a shadowy Jewish conspiracy, but as publicly-committed Democrats or Republicans who are also Jewish. Good for them!
Interesting Findings from the American Jewish Committee Survey of American Jewish Opinion 1. Do you approve or disapprove of the way President George W. Bush is handling the U.S. campaign against terrorism?
Approve 41
Disapprove 54
Not sure 5

Comment: This is ambiguous, as I suspect a fair percentage of Jews think the president has not been vigorous enough in opposing terrorism, especially Palestinian terrorism.

19. I would like you to rate your feelings toward some countries, institutions and people, with one hundred meaning a very warm, favorable feeling, zero meaning a very cold, unfavorable feeling, and fifty meaning not particularly warm or cold. You can use any number from zero to one hundred. How would you rate your feelings toward [ ].
Mean Score
a. Iran 27
b. The European Union 54
c. Saudi Arabia 29
d. Germany 45
e. Jordan 43
f. Egypt 45
g. Great Britain 77
h. Poland 56
i. The Palestinians 21
j. France 33
k. China 44
l. Syria 24
m. Turkey 52
n. India 55
o. The Vatican 51
p. Italy 62
q. Spain 62
r. Russia 51
s. South Africa 53

Comment: OK, France is bad, but worse than Egypt, whose official media engages in blatant anti-Semitism?

22. I'm going to read you a list of political views that people might hold. They are arranged from extremely liberal to extremely conservative. Where would you place yourself on this scale?
Extremely liberal 4
Liberal 19
Slightly liberal 17
Moderate, middle of the road 33
Slightly conservative 13
Conservative 12
Extremely conservative 2
Not sure 1

Comment: Judging from experience, I find it hard to believe that liberal Jews outnumber conservatives only 40% to 27%, but perhaps that's because I've been in and around academia too long.

25. Do you think the number of immigrants from foreign countries who are permitted to come to the United States to live should be increased a lot, increased a little, left the same as it is now, decreased a little, or decreased a lot?
Increased a lot 4
Increased a little 11
Left the same as it is now 43
Decreased a little 21
Decreased a lot 20
Not sure 2

Comment: This is surprising, as Jews have traditionally been pro-immigration. Perhaps 9/11 changed many minds; it certainly has caused me to rethink my views on immigration.

31. Which one of the following qualities do you consider most important to your Jewish identity?
Being part of the Jewish people 41
Religious observance 16
Support for Israel 6
A commitment to social justice 19
Something else 17
Not sure 2

Comment: The philosophy of Reconstructionism, which focuses on Judaism as an evolving religious civilization with an emphasis on peoplehood, has apparently won a smashing victory in the battle to define Jewish identity, soundly beating both religious observance and "a commitment to social justice."

37. Looking ahead over the next several years, do you think that anti-Semitism in the United States will increase greatly, increase somewhat, remain the same, decrease somewhat, or decrease greatly?
Increase greatly 10
Increase somewhat 39
Remain the same 42
Decrease somewhat 7
Decrease greatly 1
Not sure 1

Comment: Anti-Semitism has been steadily decreasing the U.S. for sixty years. But being a Jew often means being a bit paranoid, and for good historical reason.

38. In your opinion, what proportion of each of the following groups in the United States is anti-Semitic-most, many, some, very few, or none?
Most Many Some Very
few None Not
a. Asians 2 3 41 39 9 6
b. Muslims 28 27 33 8 1 3
c. Hispanics 3 6 51 29 6 5
d. Blacks 6 15 55 18 4 3
e. The Religious Right 20 21 37 14 3 6
f. Catholics 5 9 59 21 3 3
g. Mainstream Protestants 4 8 57 24 3 4

Comment: Surveys I've seen show the "religious right" to be no more anti-Semitic than Americans generally, and certainly nothing approaching the likely figures for American Muslims (many of whom recently immigrated from countries where anti-Semitism is rampant) or, for that matter, American blacks or Hispanics, who have higher than average levels of anti-Semitism (I know I should find the relevant stats to link to, but I can't right now; anyone care to help?). I'd wager, however, that only a small percentage of Jews actually know anyone in the religious right, and therefore are susceptible to both stereotypes and the constant fundraising letters from People for the American Way etc. Moreover, since a disproportionate percentage of American Jews are very liberal, they tend to overestimate the "evils" of any conservative grouping. Interesting that the survey didn't ask about the "far left", which seems far more anti-Semitic than the religious right.

You can read the full study here.

UPDATE: Reader Ronald Iltis provides a link to this 2002 ADL study of anti-Semitism in America, which confirms that both African-Americans and Hispanic Americans are far more anti-Semitic than are white Americans, and that "religion is not a driver of anti-Semitic propensities in the United States," nor, contrary to those who see Klansmen lurking in every conservative organization is "political ideology."
JUST SAW AND HAD DINNER with Howard Bashman, who came up to Harvard Law School to speak on blogs and appellate litigation for the Harvard Journal of Law and Technology. Check out the video of his talk here.
Volkswagen Phaeton drivers beware: Here is the scoop on the original Phaeton:
The son of the sun-god Helios. When Phaeton ("the shining one") finally learned who his father was, he went east to meet him. He induced his father to allow him to drive the chariot of the sun across the heavens for one day. The horses, feeling their reins held by a weaker hand, ran wildly out of their course and came close to the earth, threatening to burn it. Zeus noticed the danger and with a thunderbolt he destroyed Phaeton. He fell down into the legendary river Eridanus where he was found by the river nymphs who mourned him and buried him. The tears of these nymphs turned into amber. For the Ethiopians however it was already too late: they were scorched by the heat and their skins had turned black.
Not the best name for a car, eh? At least you should be sure never to lend it to your son.

     (Yes, I know that phaeton is also the name of a sort of carriage, and also a term for a touring car.)
Brazil fingerprinting decision: Reader David M. Rosenberg reports:
A judge in Rio de Janeiro has accepted the petition of the city to suspend the registration of photos and fingerprints of US tourists. For the time being, the decision only has effect in Rio (I'm not sure if it refers to the entire state of Rio de Janeiro, or just the municipality of the same name), but could be extended to the entire country. According to the press report I just read, the judge's opinion was as follows:
"If the United States of America has reasons to adopt the measures being questioned by the Federal Public Minister, then Brazil, without a plausible motive, seeing that the fear of terrorist attacks, happily, is not a part of [our] daily life, cannot do the same solely based on reciprocity because it would cause losses of millions of dollars to the national economy, and not just to the petitioner, by way of the flight of tourists confronted with restrictions on entering [Brazil] who will seek other destinations, and, consequently, the loss of the flow of North American tourists and the incalculable amount of money they would spend here."
UPDATE: David M. Rosenberg reports further:
The government of Brazil is now arguing that today's decision by the judge in Rio should not take effect due to the publication of an executive decision (authorized by the president of the Republic) mandating that the collection of photos and fingerprints for Americans continue to take place throughout the entire country of Brazil. A working group has been formed to study "rules for the control of the entrance of foreigners" that is mandated to conclude its work and make a report within 30 days. The executive order requires that the Federal Police (roughly equivalent to a combination of our FBI and ICE) continue to archive the photos and fingerprints while this working group is in existence.

According to the Ministry of Justice, today's decision by the judge in Rio didn't prohibit the collection of the photos and fingerprints; it just said that the Federal Police weren't obligated to collect this data. The publication of the executive order makes this obligation explicit. At this point I don't have a copy of the judge's complete decision (I'll look for it). The solicitor who made the original petition for the data collection has stated that due to the executive order, the Rio judge's decision is moot, however I haven't found a response from the city of Rio de Janeiro which brought the [successful?] action to have the data collection suspended.

Both judges (the one in Matto Grosso who ordered the collection, and the one in Rio who ordered it suspended) are federal judges. At this point, I think you will need somebody with some Brazilian legal training to help sort out the issues here, but it has clearly entered the realm of politics.
What should you eat? Hasn't all this talk about the Atkins diet made you suspicious? For years it was neglected and now many scientists are saying it works. Have there been so many big changes in our understanding in such a short time? The Atkins idea, after all, dates from the nineteenth century if not earlier. And surely it is easy to observe which diets work. I have read that most models (i.e., the private sector!) use some form of the low-carb diet. Are they so far ahead of scientists? Michael at asks some similar questions.

Like Chris Mooney, I tend to think the problem is usually not enough science. So I was hearted by this month's (February) Discover magazine (not yet on-line), which offers an extensive treatment of the latest scientific knowledge on dieting. The article, by Brad Lemley, is called "What Does Science Say You Should Eat?" Many of the results are based on an extensive Harvard study, started in 1976.

So what are we told?

1. White flour and sucrose, in large quantities, are bad for you.

2. The Mediterranean diet is very healthy. Whole grain foods and olive oils are good for you.

3. Eat lots of vegetables and seafood.

4. Avoid margarine, deep fried foods, and packaged baked goods. If you coop up a pig and feed it grains, it will grow fat.

5. Saturated fat is indeed bad for you, contrary to some revisionist accounts.

6. Eggs are fine but soy may not be.

Very little of this surprises me, but I am happy to see it supported by some real scientific evidence.
Canadian investigation of Muslim newspaper for anti-Semitic speech: From the Toronto Star:
Copies of a B.C. Muslim newspaper have been turned over to the province's hate crimes unit after it published an article accusing "the Jews" of everything from starting both world wars to staging the Sept. 11 terrorist attacks.

The Canadian Jewish Congress made a complaint seeking a criminal investigation into what it called "a virulently anti-Semitic article" published in The Miracle, a weekly newspaper distributed in Vancouver-area mosques.

The edition featuring the page-long list of misdeeds it claims were committed by Jews also includes a column by Liberal Senator Mobina Jaffer and an advertisement by local Liberal MP Joe Peschisolido.

"It isn't Arabs lying about and guilt-tripping us with 'the Holocaust' -- it is Jews," the article reads. "It wasn't Arabs who caused the Great Depression -- it was Jews. It wasn't Arabs who started WWI (the First World War) -- it was Jews. It wasn't Arabs who started WWII (the Second World War) -- it was Jews."

The Dec. 19 article, by Idaho resident Edgar Steele, blames Jews for 81 other items, ranging from pedophilia and organized crime to "race-mixing," militant feminism and "forcing us to allow homosexuals to lead Boy Scout troops."

The Miracle, published in Delta, has a circulation of about 2,500. Its editorial page claims it is dedicated to Islamic brotherhood and bringing "harmony amongst all Muslim and other communities."

Chief editor Nusrat Hussain said he had no regrets about publishing Steele's article.

"We try to keep freedom of speech and not necessarily that we agree with the article and that is what Canada is about," he said.

"We certainly did not publish it with intentions of hate crime. But if the Jewish congress considers it that, then of course it is their right to think that way."

Hussain said the newspaper published the article because the editors found it interesting. . . .
Steele is apparently not just an anti-Semite but also an anti-black racist; and my guess would be that he'd have relatively little love for Middle Easterners, too (and certainly not for the tens of millions of Muslims in black Africa, or for that matter for the east Asian Muslims). But, hey, hatred makes strange bedfellows.

     Also see this story for more information.
Just for Fun: Other than the Iowa Electronic Market, is there a way to legally bet from outside Vegas on who will win the Democratic nomination? My own suspicion is that contrary to the odds I've seen, there is a more than 15% chance that one of the "major" Democratic contenders other than Clark and Dean will get the nomination.
UPDATE: Several readers have referred me to, an Irish outfit. Any other suggestions?
Dumb Wedding: Can there be a dumber reason to rush a wedding than wanting to be able to cast an inconsequential vote (as all individual votes are) in the Iowa caucuses (via Opinionjournal)? And will the couple divorce so the new bride can go back home and vote in the Illinois primary, too?
Tobacco Deal May Violate Sherman Act: The Second Circuit has reinstated a lawsuit arguing that the multistate tobacco settlement violates federal antitrust law. When the settlement was announced, my entrepreneurial side thought about starting a new cigarette brand called "Death Sticks," and, when states tried to force my company to pay into a fund for the health problems caused by my unworthy competitors' cigarettes, to sue the heck out them, for both antitrust and constitutional violations. Maybe I should have.
Bad News for the Dems: From the AP:
U.S. Jews would overwhelmingly support any major Democratic candidate over President Bush if the election were held today, according to the 2004 Annual Survey of American Jewish Opinion.

Joe Lieberman, the only Jewish candidate, would defeat Republican Bush by the largest margin, 71 percent to 24 percent, the poll found.

In one-on-one matchups with the president, Howard Dean, Wesley Clark, John Kerry and Richard Gephardt would each receive about 60 percent of the Jewish vote, compared to about 30 percent for Bush, according to the survey conducted for the American Jewish Committee and released Monday.
30% would be about double Bush's total in 2000 among Jews (the article says that only 66% of those surveyed supported Gore in 2000, but retrospective polling is notoriously unreliable, polls done at the time showed 80%+ figures), and does not account for the 10% undecided, nor for the fact that some of Dean's bizarre statements re Iraq have not yet seeped into public consciousness.

Also, the articles notes a "slight" increase in Jewish identification as Republicans from 9 to 16%. That's not slight, that's almost double!

Jews are only about 2% of the population, but are older and vote more than other groups, so they are more like 4% of the electorate, and are concentrated in swing states. Moreover, Jews are responsible for giving about half of the money the Democrats raise (and 15-20% of Republican cash). This poll has to be ringing some alarm bells at Democratic headquarters in Washington.
Rats! Well, the Supreme Court refused to hear the McFarlane v. Twist case (in which I wrote the amicus brief). Too bad, but not unexpected: The Supreme Court agrees to hear only about 1% of the cases that it's asked to hear each year; the odds were always against us, even though I do think the case is certworthy. Still, it's an interesting issue, on which there's a real disagreement among lower courts. I hope the Supreme Court gets to revisit soon.
Now Shipping: Restoring the Lost Constitution: It looks like Amazon is now (free) shipping my new book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton), though the formal publication date is February 1st. My book tour starts next week in DC (Georgetown, Caltholic, George Mason & George Washington), and next Monday I will start posting weekly updates of the time and location of speaking appearances. Here is the jacket cover:

Israel and copyright law: Best of the Web writes, linking to this article:
"Israeli officials have drafted a copyright bill that would halt compensation to American artists and their record companies when their songs are played on Israeli radio stations and in Israeli clubs," the Jerusalem Post reports:
Other artists, Israeli and foreign, would continue to receive payment under current practices, sources in Washington familiar with the bill told The Jerusalem Post. . . .

Israel seems to be considering excluding US artists and companies from payment, since officials believe only artists from countries which are party to the Rome Convention--a 1961 copyright treaty that grants protection to performers, record producers, and broadcasting organizations--should be compensated.

While 76 countries, including Israel, are party to the convention, the US is not. Israel became a member in 2002.

The bill, if passed, could anger the US, which has been sharply critical in recent years of Israel's efforts to combat illegal copying of copyrighted and trademarked items. In May, the US rewarded Israel for improved police efforts in the area by removing it from its list of worst copyright pirates. Israel, however, remains on a watch list.
Such an attempted theft is an outrage, especially coming from a country to which America has been such a steadfast friend. It's also stupid since, unlike many other copyright scofflaws, Israel actually has an advanced, knowledge-based economy that produces lots of intellectual property that Jerusalem would presumably like America to protect.
     It seems to me, though, that Israel is not behaving badly here -- in fact, it's only threatening to do to American performers what American law already does for all performers.

     Under American law, performers are not paid each time their song is played on normal radio or on a CD player in a bar, though the composers and lyricists are. An example: Peter Gabriel (the performer) records his version of Suzanne, which was written by Leonard Cohen (the composer and lyricist). When a radio station plays the song in the U.S., or when a bar plays it on CD, Cohen is paid, but Gabriel isn't. (When a record company makes copies of the song, both Cohen and Gabriel are paid, not when someone merely performs the song.) Unfair? Illogical? Maybe -- but for historical reasons, that's the law.

     Under Israeli law, performers and composers are apparently both paid each time their song is played. (I'm not an expert on Israeli law, but this site and the Jerusalem Post article so suggest.) So Israel now gives all performers, American and otherwise, more rights than American law gives all performers. But the Israelis, upset that America doesn't give Israeli performers these rights (the Israelis don't care what America gives others), apparently want to play tit-for-tat, and put American performers in Israel in the same position as Israeli performers are in America. (I don't know where to find an English-language version of the proposed Israeli statute, but I'm pretty sure that it wouldn't affect the rights of composers, since the Jerusalem Post article refers to "performers," and to "artists," which usually means performers.)

     If I'm right, then the Israelis aren't engaged in "attempted theft," and aren't being "copyright scofflaws," under America's own rules. Our law doesn't believe in giving performers rights to payment when their recordings are played. We can't call the Israelis thieves or scofflaws for taking exactly the same view with regard to our performers.

     This is a pretty counterintuitive point; I don't fault the Best of the Web editor for not knowing this nicety of American copyright law, especially since the Jerusalem Post article doesn't explicitly note this distinction, either. But I did want to set matters straight (again, assuming my understanding of the Israeli proposal is right), and to keep the Israel for being blamed for doing to Americans what we already do to everyone, Americans, Israelis, or anyone else.

     OVERSIMPLIFICATION NOTES: (1) When I say "X must pay Y," sometimes I mean that X is required by law simply to pay Y, and sometimes that X is required to get a license from Y, which usually means he'll have to pay Y. Sometimes permission is needed, and sometimes payment is itself enough; I'm not going to get into this here. (2) When I say "pay performers" or "pay composers," that may often end up meaning paying those companies to which the performers or composers sold their copyright. ANOTHER NOTE: (3) You might wonder how composers can be efficiently paid whenever their songs are played (or how performers can be paid in those countries that mandate payment to perfoerms). The answer is the collection societies, such as ASCAP and BMI, from which radio stations, restaurants, and other businesses can buy blanket licenses that cover the works of thousands of composers; the societies then split the net revenues among the various composers, according to a formula that supposedly relates to the composers' likely market share.

Sunday, January 11, 2004

Yippee! Just finished grading my exams from last semester. What a load off my back.
Interview with Glenn Reynolds of Instapundit: Read here, just in case you missed it. We are one of his three favorite blogs. His favorite book is Neil Stephenson's Cryptonomicon, his favorite movie is The Stunt Man, his favorite composer is Bach, I can only say great taste all around!

Here is one nice excerpt:
"Can you name a major moral, political or intellectual issue on which you've ever changed your mind? > Loads of them. When I was a student, I thought that public-choice theory was self-serving conservative twaddle. When I became a lawyer/lobbyist, I discovered that it was exactly right.

What philosophical thesis do you think it most important to disseminate? > That there are more things in heaven and earth than are dreamt of in philosophy.

What philosophical thesis do you think it most important to combat? > That life should conform to a philosophy."

Read the whole thing.

Saturday, January 10, 2004

More things you won't find on this site, even though these search engine queries led some people here:
10 Jan, Sat, 13:18:20 Altavista: jesus conspiracy christianity
10 Jan, Sat, 14:00:57 Google: marvel comics characters jason mutant 143
10 Jan, Sat, 15:00:04 Google: thomas friedman synagogue
10 Jan, Sat, 15:04:15 Google: washington d.c. democratic primaries toothbrushing
10 Jan, Sat, 15:31:36 Yahoo: will tylenol cause speech slur
10 Jan, Sat, 15:43:30 Google: Conservatives Club letterhead
10 Jan, Sat, 15:48:15 Google: professors' views on hamlet's mother

"Danes claim blister gas find":
Danish troops have found dozens of mortar rounds buried in Iraq which initial tests show could contain blister gas, the Danish army said on Saturday local time.

The Danish army said the 36 120mm mortar rounds found on Friday had been buried for at least 10 years.

"All the instruments showed indications of the same type of chemical compound, namely blister gas," the Danish Army Operational Command said on its website, cautioning that further tests were needed.

Blister gas, such as mustard gas, an illegal weapon which former Iraqi leader Saddam Hussein said he had destroyed, was extensively used against the Iranians during the 1980 to 1988 war. . . .
I'll believe it when more thorough tests are done -- in the past, supposed discoveries of chemical weapons haven't panned out -- but I pass along the news for whatever it's worth.
Adobe anti-counterfeiting feature: Reader Jim Herd points to this Toronto Globe & Mail story:
Adobe Systems Inc. acknowledged on Friday it quietly added technology to the world's best-known graphics software at the request of government regulators and international bankers to prevent consumers from making copies of the world's major currencies.

The unusual concession has angered scores of customers.

Adobe, the world's leading vendor for graphics software, said the secretive technology "would have minimal impact on honest customers." It generates a warning message when someone tries to make digital copies of some currencies.

The U.S. Federal Reserve and other organizations that worked on the technology said they could not disclose how it works and wouldn't name which other software companies have it in their products. They cited concerns that counterfeiters would try to defeat it. . . .

Adobe revealed it added the technology after a customer complained in an online support forum about mysterious behavior by the new $649 "Photoshop CS" software when opening an image of a U.S. $20 bill.

Kevin Connor, Adobe's product management director, said the company did not disclose the technology in Photoshop's instructions at the request of international bankers. He said Adobe is looking at adding the detection mechanism to its other products.

"The average consumer is never going to encounter this in their daily use," Mr. Connor said. "It just didn't seem like something meaningful to communicate."

Angry customers have flooded Adobe's Internet message boards with complaints about censorship and concerns over future restrictions on other types of images, such as copyrighted or adult material.

"I don't believe this. This shocks me," said Stephen M. Burns, president of the Photoshop users group in San Diego. "Artists don't like to be limited in what they can do with their tools. Let the U.S. government or whoever is involved deal with this, but don't take the powers of the government and place them into a commercial software package." . . .

The technology was designed recently by the Central Bank Counterfeit Deterrence Group, a consortium of 27 central banks in the United States, England, Japan, Canada and across the European Union, where there already is a formal proposal to require all software companies to include similar anti-counterfeit technology. . . .

Richard Wall, the Bank of Canada's representative to the counterfeit deterrence group . . .[,] said nearly all counterfeit currency in Canada is now created with personal computers and ink-jet printers.

"We've seen a shift of what would normally be highly skilled counterfeiters using elaborate equipment to basically counterfeiters who need to know how to use a PC," Wall said.

Some policy experts were divided on the technology.

Bruce Schneier, an expert on security and privacy, called the anti-counterfeit technology a great system. "It doesn't affect privacy," he said. "It stops the casual counterfeiter. I can't think of any ill effects."

Another security expert, Gene Spafford of Purdue University, said Adobe should have notified its customers prominently. He wondered how closely Adobe was permitted to study the technology's inner-workings to ensure it was stable and performed as advertised. . . .
     It's hard to fully evaluate this, because for understandable reasons Adobe isn't revealing the exact details of this feature -- we don't know for sure, then, how much of a burden it is on law-abiding customers. It's also hard to tell for sure the circumstances of how the government persuaded Adobe to do this -- whether it was simply appealing to Adobe's public-spiritedness, or whether it was using heavier-handed tactics (e.g., threatening harassment of some sort).

     But if all is as Adobe describes, sounds to me like a pretty decent step on Adobe's part (though it might have been better if their documentation had at least mentioned this). Counterfeiting is a serious problem, and if businesses can voluntarily do what they can to prevent crime with relatively little burden on the law-abiding, that's generally pretty good.
More on Saddam as POW: Phil Carter agrees with my analysis from last night, and has more.
Faked survey results: From the Washington Post:
A survey a judge cited in his decision to move Scott Peterson's capital murder trial out of Modesto contained made-up information, criminal justice students who conducted the survey told a newspaper.

The 10-county survey suggested that more jurors without bias could be found in the San Francisco Bay area or Southern California than in Stanislaus County, which includes Modesto, home town of Peterson's slain wife, Laci.

But several of the California State University, Stanislaus students who compiled the report told The Modesto Bee they used a lot of fake information because it had been too hard to gather all the data properly. The students requested anonymity, the paper said. . . .
For more on the story, see here and here. Some polling experts say, probably correctly, that the professor should have supervised the students better, and not required them to call on their own time and money -- not because the students' conduct is excusable, but because it was foreseeable, and the professor had a duty to the users of his survey to try to deter even inexcusable misconduct by the students.

     Oh, and here's something pretty annoying:
One of the seven unidentified students said Friday, "I'm really disappointed in the school. They never said how Dr. Schoenthaler didn't have permission to do this and they seemed more upset with the students. It wasn't an approved assignment."

A self-described spokesperson for the unidentified students said Friday that they are worried about backlash for their whistle-blowing, but continue to stand behind the decision.
Oh, how disappointing! The administration is more upset with students who cheated than with a professor who supposedly violated an internal administrative Human Subjects Review rule (1) that's aimed at protecting survey subjects, not at protecting the surveytakers or the accuracy of the survey, and (2) that would have been largely superfluous at protecting the survey subjects here, because the research project had none of the attributes (e.g., administration of medical procedures, questioning about embarrassing information, danger of revelation of private data, etc.) that justify Human Subjects Review requirements. So the professor's violation, if it was a violation (I don't know the details of how broadly applicable the CSU rule is), is a very small thing compared to the students' misconduct.

     And "whistle-blowing"? Does the connotation of that term really apply to the situation when someone alerts the press about his own cheating (and, incidentally, tries to avoid any punishment for it)? Does the connotation of "backlash" really cover the possibility that a cheater would be punished for his cheating?

     Thanks to How Appealing for the pointer.
Establishing a New Court for Terrorists: There is a particularly thoughtful article by Thomas Powers in the current Weekly Standard (Due Process for Terrorists? The case for a federal terrorism court) that's not what you'd expect. Powers contends that the Bush Administration should take the initiative to protect both the national security and the due process rights of detainees by proposing to Congress that it establish a new federal court in which to try accused terrorists. Though the author is clearly sympathetic to the claims that terrorism presents legal challenges that cannot be dealt adequately with in federal civilian courts, he also is skeptical of the effectiveness of military tribunals. In addition, he criticizes the Bush administration's passivity in response to criticism and court challenges, some of which are valid, and challenges the administration to protect the rights of the innocent--whether innocent victims of terror or those innocent of terrorist activities.

. . . .INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.

To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. . . .
As I said, this article is unusually thoughtful and presents a proposal well worth considering seriously.

Supporting Ethnic-Religion Based States: I occasionally get email from readers suggesting that Israel is unworthy of support, or even existence, because it is an ethnic/religion-based state. So what about Poland? After World War II, Poland expelled its Germans and Ukrainians, absorbed Poles tossed out of Russia, and tolerated pogroms against the remaining Jewish population (for one source on all this, see here). A state that was ethnically and religiously diverse before WWII became homogenously ethnic Polish and Roman Catholic, and by design. No one talks about this much anymore, because there are no irredentist elements within and near Poland demanding that Poland either has no right to exist or must otherwise accommodate their corporate identities. (As an aside, this, I believe, is why Benny Morris argues that Ben-Gurion was too moderate in his War of Independence policies--I should also note that Morris, to his own surprise, came across evidence that the Arab powers ordered the Arab women and children of Palestine to evacuate the area, a point likely to be lost in the furor over his interview.)

I would add that no one after WWII, when Poland engaged in "ethnic cleansing," claimed Poland had no right to exist, and that at the time of the expulsions from Poland, the local minorities were not allied with hostile outside powers surrounding Poland and seeking to liquidate Poland and massacre its population. So how about it--does Poland have the right to exist?

Oh, and if Israel has no right to exist, what should replace it? Certainly not an ethnically-based Palestinian state with officially Islamist policies. Perhaps the land should be turned into a Biblically-themed amusement park?

Friday, January 9, 2004

Odd claim about Saddam as POW: FoxNews reports:
U.S. officials have said they plan to turn Saddam over to an Iraqi court for trial. The United States says Saddam's government killed at least 300,000 Iraqis, including thousands of Iraqi Kurds in a poison gas attack in 1988.

But the Geneva Conventions say POWs can be tried only for crimes against humanity by an international tribunal or the occupying power -- which in this case is the United States.
Really? That seems quite odd to me; I would think that the POW could be repatriated to his country of origin, and then tried by that country as a normal criminal for crimes that he committed in the country. I couldn't find anything to the contrary in the Geneva Convention on POWs. Am I missing something here? If I am (and I well might be), please let me know.
Must-read Interview with Israeli Historian Benny Morris: If you have the slightest interest in the history, current state, or future of Israel, you must read this interview with Prof. Morris. In short, he argues that even though he is still at heart a left-winger, given the barbarian state of Arab/Palestinian/Muslim culture, it will come down to "them or us," and he chooses "us," even if that means tough, even cruel actions by the Israeli government. And, though widely known for his sympathetic work on the Palestinian Nakba in 1948, he believes that Ben-Gurion erred in not expelling all Palestinians from Israel and surrounding areas. A depressing, fascinating, and scary interview.
More on criminal libel in Colorado: See the update to the post below.
Supreme Court agrees to hear Hamdi case: FoxNews so reports. It's the second war on terrorism case that the Court will have heard -- the first involves the Guantanamo detentions -- and is a tremendously important issue: Under what conditions may the government militarily detain U.S. citizens, and what role should civilian courts have in reviewing this?

UPDATE: I originally erroneously said "U.S. citizens detained in the U.S.," but of course that's the Padilla case, not this case. Don't know why the wires got crossed in my head. Thanks to Howard Bashman and Don Potts for the correction.

FURTHER UPDATE: Here are the "Questions Presented" from the petition; note that (1) they're crafted by Hamdi's lawyers, and are thus somewhat argumentative, and (2) the Supreme Court is not obligated to reach all of them:
(1) Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

(2) Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an "enemy combatant" permissible under applicable congressional statutes and treaty provisions?

(3) In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an "enemy combatant," does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch?s asserted justification for the detention?
Still more on the Brazil story: Just added an update to the post below -- it turns out that indeed Brazil does generally fingerprint and photograph its own citizens. Makes the Brazilian judge's shrill reaction to the American requirement that visitors from various countries (including Brazil) be fingerprinted and photographed even odder. If Brazil can do it to Brazilians, and to Americans who reside in Brazil, what's so awful about America doing it to Brazilians who are visiting America?
"Absent an armed insurrection type of thing": Reader Stephen Humphrey points to this this CNN story:
Officials in the popular ski resort area of Killington want the town to secede from Vermont and join neighboring New Hampshire in a dispute over taxes.

They say the town's restaurants, inns and other businesses send $10 million a year to the state capital in sales, room and meal taxes, but the state returns just $1 million in state aid to Killington.

Even more galling to the town is a statewide property tax imposed in 1997 to fund schools. The town of 1,092 won a Superior Court order that called the state's method of assessing local properties "arbitrary and capricious," but the state Supreme Court reversed that decision.

"It kind of reminds us of Colonial days," Town Manager David Lewis said Thursday. "The Colonies were being faced with the Stamp Act, the Tea Act, the Sugar Act. England wasn't giving them any rights. They were treating the Colonies as just a revenue source."

New Hampshire, just 25 miles east, has no income tax or sales tax. . . .

Secretary of State Deborah Markowitz said Killington has little chance of secession "absent an armed insurrection type of thing. . . ." . . .
Well, the New Hampshire Constitution does mention a right of revolution:
Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
But I don't think the Vermont Constitution does -- and I think that even New Hampshire would frown on "an armed insurrection type of thing" from one of its towns.
Speech suppression in child custody disputes: In November, I posted about a Colorado judge restricting one parent's anti-gay speech as part of a child custody order:
A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. . . .
I noted that judges have restricted many different kinds of speech in child custody orders, including pro-gay speech as well. (I know of a couple of cases in the 1970s, but I'm sure there were others since.) Well, here's a case from earlier this week that likewise involves a restriction on pro-gay speech (thanks to How Appealing for the pointer):
On February 6, 2002, Cher Lynn Hogue, mother of the couple's minor child, filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. In the complaint she alleged that her husband Joseph Randolph Hogue, Jr., Appellant and father of the minor child, left the marital home, his wife and child to "pursue his gay lifestyle." She further alleged that her husband would expose their son to his new lifestyle, that such exposure was against the advice of the child's counselor and requested a restraining order to prevent such.

A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.
On August 2, 2002 Wife filed a Petition for Contempt alleging that Husband had violated the restraining order by allowing the child to be in the presence of the father's "gay lover" at Husband's apartment and at church and that Husband told the child that he was gay. . . . The Complaint alleges that Husband made statements such as "when someone is gay, they are born like that;" that his boyfriend is in love with him; that "Sean (Husband's boyfriend) is attracted to big men;" and that he (Husband) thought
his son was old enough to understand about his father's lifestyle. Further, Wife alleged that Husband's boyfriend's shoes are in the child's closet at Husband's apartment and that his clothes are scattered about the apartment. On September 16, 2002 the Chancellor found Husband to be in contempt for telling his son that he was gay and sentenced him to serve two days in the Williamson County Jail. The Chancellor also modified the parenting plan by eliminating all of Husband's Thursday night visitations with his son, limiting Tuesday night visitations, and authorizing Wife to make all decisions regarding their son with the exception of emergency decisions that may arise while Husband and his son were visiting. . . .
The appellate court ultimately set aside the contempt citation, because it found that that the order "did not put Husband on notice that he was restrained from telling his son that he was gay." Nonetheless, the court upheld the order generally, though without making it clear just what its boundaries were. Oddly enough, the decision doesn't mention the First Amendment at all, which is usually a sign that the challenger didn't raise a First Amendment argument, or raised it only in passing.

     By the way, the reason I say the order is a speech restriction is two-fold: First, the trial court clearly saw it as a speech restriction, in concluding that it barred the father even from saying that he was gay; though the appellate court concluded the order didn't go that far, presumably the trial judge intended the order to apply to other kinds of speech as well, such as to broader discussions of the father's gay lifestyle.

     Second, the concern that seemed to be animating the trial judge was that exposure of the child to the father's gay lovers or the father's gay lifestyle would send the wrong message to the child: a message that homosexuality is acceptable behavior. (Again, this is made clear by the trial judge's contempt citation.) The judge was thus restricting the activities "taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle" precisely because of their expressive content. It's pretty well-settled First Amendment law that when physical conduct is restricted precisely because of the message it sends, it's treated as a speech restriction. That's why we'd pretty clearly understand an order barring "taking the child around or otherwise exposing the child to [Catholics / Communists / objectivists] and/or his [Catholic / Communist / objectivist] lifestyle" as a speech restriction -- it would prevent physical conduct (taking a child places and showing him things) precisely because of the message that the conduct is likely to send. Likewise for this order.

     Had the order been aimed at preventing noncommunicative harm to the lifestyle -- e.g., a ban on "taking the child around or otherwise exposing the child to crocodiles and/or his close-contact-with-crocodiles lifestyle" -- then I think there'd be much less of a First Amendment problem. But the trial judge's actions, as well as the terms of the order, make clear that this order was aimed precisely at preventing the father from teaching the child that homosexuality is acceptable.
Manned Mars Mission: Is there any government boondoggle too wasteful for George W. Bush?
Criminal libel: The Rocky Mountain News reports:
A Weld County man is suing Greeley police for seizing the computer on which he publishes an online newsletter called The Howling Pig, which takes satirical barbs at a vocal university professor.

Thomas Mink, of Ault, a 24-year-old English major at the University of Northern Colorado in Greeley, said police have warned that he likely will be charged with criminal libel because The Howling Pig makes fun of Junius "Jay" Peake, a Monfort Distinguished Professor at UNC and a specialist in financial markets.

The Howling Pig, online at, says its editor, founder and spiritual leader is "Junius Puke," an apparent play on Peake's name. The newsletter describes Puke as a former roadie for the band KISS who is taking time off "from his well-earned, corporate endowed sinecure at a small western university in order to assist in the publication of The Howling Pig."

A disclaimer states that Puke is not Peake. It goes on to describe Peake as "an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about microstructure."

In one issue, a column purportedly written by the fictitious "Junius Puke" criticized UNC Board of Trustees Chairman Dick Monfort as "too stupid and irresponsible for the 'Party' to give you any real power" and said the governor put Monfort on the board because he is a wealthy campaign contributor.

The Puke column urged Monfort to resign from the UNC board and live at the Greeley Country Club. . . .

No subsequent issues [of The Howling Pig] have appeared.

"We have another one more or less ready to go, but nobody wanted to do it for fear that we'd go to jail," Mink said in an interview Thursday. . . .
     Criminal libel statutes are very rarely enforced, but if properly drafted, they are likely constitutional. The seizure of the computer might possibly be constitutional as well, because the computer contains evidence that may be relevant to the prosecution.

     But, first, this particular criminal libel statute (Colo. Rev. Stat. ? 18-13-105) is almost certainly unconstitutional:
(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.
To be constitutional, criminal libel statutes must at least (1) be limited to situations where the speaker knows the statements are false, or is reckless about whether they're false (negligence sometimes suffices for compensatory damages, but not for punishment), and (2) put the burden of proving falsehood on the prosecution, rather than putting the burden of proving truth on the defendant. (A statute limited to speech on matters of purely private concern might possibly omit these requirements, but this statute is not so limited.) This statute does not follow these two rules; and while a court might conceivably read an implicit knowledge/recklessness requirement into the statute (the coverage of the term "knowingly" in paragraph 1 is ambiguous), it probably won't just ignore the specific provision that the defendant must prove truth. A court thus ought to strike down the statute on its face, and leave it to the legislature to enact a properly bounded statute. (NOTE UPDATE BELOW.)

     Second, while the site no longer seems to be available (UPDATE: I'm told that it's still up, but hard to access because too many people are trying to read it), it sounds like the statements would be clearly understood as parody or fiction, and not factual allegations. This would make them categorically protected, against criminal libel prosecution or civil libel lawsuits.

     And, third, my sense is that these sorts of criminal libel prosecutions, seizures, and arrests almost invariably involve favoritism on the part of the government. Seriously, what do you think the average Joe's chances would be of getting the police to seize a computer that was being used to say nasty things about him? Pretty low, I'd wager; the police would quite reasonably point out that they've got better things to do than intercede into this sort of dispute, especially over a parody, and especially when the criminal libel statute is old and quite likely unconstitutional. As I mentioned, criminal libel prosecutions are very rare. So, I suspect, criminal libel law ends up punishing not libel generally, but libel against people who are prominent or influential, or with whom the police and prosecutors sympathize. (And, as we see here, it can be used to deter even speech that isn't actually libelous.)

UPDATE: Reader Dave Heller pointed out a case that I had missed, in which the Colorado Supreme Court disagreed with the above analysis -- People v. Ryan, 806 P.2d 935 (Colo. 1991). In Ryan, the court held that (1) the criminal libel statute was constitutional except when the speech is about a public figure and on a matter of public concern; and (2) it was constitutional to place on the defendant the burden of proving falsity. I think it's wrong on both counts: I think the statute is unconstitutionally overbroad even as modified, because (1) it punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern -- speech that, under Gertz v. Robert Welch, may not be punished -- and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this. It will be interesting to see what the federal courts in Colorado think; Mink filed the lawsuit in federal court, and while lower Colorado courts are bound by the Colorado Supreme Court's decision, federal courts aren't. (Of course, the point I mention above under "Second" remains valid even if the Colorado Supreme Court decisions is accepted.)

     Heller also writes:
In Colorado there has been at least one subsequent conviction for what appears to be a private libel. [ In 1996, an Arapahoe County man was sentenced to 45 days in jail and 200 hours of community service after being convicted of criminal libel for publishing fliers that falsely accused his daughter's grandparents of molesting children. See Suburban news briefing: False charges earn jail time, Rocky Mtn. News, Jan. 6, 1996, at 24A.]

But in two instances state prosecutors reportedly investigated bringing charges against the media -- a religious talk show for disparaging statements about homosexuality; and, quite curiously over press coverage of the Jon Benet Ramsey murder case.
Colorado thus seems a bit more willing to use criminal libel prosecutions than other states are -- but such prosecutions are still very rare, even in Colorado.

FURTHER UPDATE: J.B. Holston reports that "The ACLU was granted its temporary restraining order in [this case], and the student's (and his mother's) computer will be returned tomorrow."
More on Brazil and fingerprinting: As readers doubtless recall, a Brazilian judge has mandated that all visitors to Brazil from the U.S. be fingerprinted and photographed, in retaliation for the U.S. imposing a similar requirement on visitors from Brazil and other countries. The judge also condemned the U.S. requirement as "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis."

     Reader Rick Pura points to this page, which reports that, as of 1996,
In Brazil, for example, all residents are obliged to carry at all times a plasticated flexible card the size of a credit card bearing a photograph, thumb print, full name and parents' names, national status (Brazilian national or alien resident) and a serial number.
Can any readers of this blog who are familiar with Brazil confirm or deny this?
UPDATE: Reader Marcelo Pecanha from Rio de Janeiro generally confirms the above, as do a couple of other readers, though with a qualifier:
I am a Brazilian national, and I feel compelled to offer give my two cents here.

First of all, anti-american sentiment in Brazil is now approaching mass hysteria, polls showing that we are actually worse than France in this area. Second, we have just elected our second left-leaning president in our democratic history. First time that happened, it lead to military coup (that was 1964) with full suppport from the USA.

This is the framework from which this fingerprinting decision emerged. I am not a lawyer, and I have no idea how a judge in Mato Grosso (which is the state thats hosts the Pantanal area, far from either Rio de Janeiro, Sao Paulo or our capital Brasilia) can have this kind of broad jurisdiction, but all you read about the comparisions with Nazi Germany are shamefully true. Newspapers here are simply loving it. The only one that is moving to change that is the one who has the most to lose: the Mayor of Rio de Janeiro. He is appealing the decision, and most likely will overrule that.

About the ID's, I find that americans tend to exagerate a bit on this issue. We have a national ID system from as long as I can remember. I has all the data your reader points, including a right thumb fingerprint, but we are required to carry them only if we need a photo ID. . . .

Do we need to carry our ID's all the time? On theory, no. But you have to understand that "probable cause" for Brazilian police is not the same as for american police. If they think they have cause to search you they, probably can without bothering with a posteriori law suits. And then, they can ask you for your ID and detain you if you don't have it. Then again, nowhere else you have a police force so restrained. . . .

Me? I always have my ID in my wallet. . .
The reader also points out that this sort of ID requirement is no big deal, and that the Brazilians shouldn't be faulted for it -- and I agree. There are plausible arguments against it, but also plausible arguments for it. But I wasn't the one who was condemning the Brazilians for fingerprinting and photographing Americans -- it was the Brazilian judge who was condemning us for fingerprinting and photographing Brazilians. And now it turns out that this "absolutely brutal, threatening human rights, violating human dignity, xenophobic and worthy of the worst horrors committed by the Nazis" action on the part of the Americans is apparently something that the judge's own government require of its own citizens (as well as foreigners who reside in Brazil). The judge's objections are in retrospect only getting weirder.
Being fingerprinted in Brazil: As many VC readers may know, the Brazilian government has started fingerprinting American visitors, as a kind of retaliation for how we now treat Brazilian visitors. My friend and colleague David Levy just flew to Brazil, and he offers the following account of the process:

"The Brazilian authorities are indeed engaged in "tit-for-tat" for US border policies. It is hysterically funny.

The US policy is to digitize fingerprints to match visitors against various watch lists. The digital photos are presumably recordered to allow the various agents to do a rapid identification in the field if the fingerprint match turms up a "person of interest." One staggers at the computational resources thrown into this effort.

At the Brazilian point of entry, the American passport holders got a special line. Since there aren't many, this shortened the queue. Thank you! The digital photo was taken by a young lady with what looks like a $99.95 camera. The identification tag is a piece of paper with my name neatly printed -- by me -- held across my chest. Then my right thumb print is inked unto the paper and the paper is put in a pile. That will work.

I'm willing to bet that the requirement for a separate line to deal with American passport holders reduced the cost to Americans of visiting Brazil. The probability of the authorities being able to use the "information" collection floats around zero. Some benefit; no cost."

Click on the above link, and read David's renowned account of how economics acquired the name "dismal science."
Lawsuit over anti-Catholic sculpture: Washburn University, a public university in Kansas, is displaying an anti-Catholic sculpture. The sculpture apparently "depicts a Catholic bishop with a grotesque facial expression wearing a phallus on his head that is shaped like a bishop's miter" (a photo is visible in this news story, and apparently it's not clear whether any phallic connection was intentional), and the caption says "The artist says, 'I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of the screen was the persona you see before you.'" The sculpture was apparently selected by "artists and art teachers representing Washburn's Campus Beautification Committee" for display -- this isn't some open forum where anyone can put up a sculpture -- and, as best I can tell, it isn't an obvious part of any broader display (as a painting might be in a museum).

     The Thomas More Law Center is suing Washburn on the grounds that the display by a government-run university of an anti-Catholic sculpture constitutes disapproval of religion. Endorsement of religion (religion generally or a specific religion in particular), the Supreme Court has held, violates the Establishment Clause; but whenever the Court has said this, it has usually also said that disapproval of religion would be equally unconstitutional. (See here for citations.) Sounds like a pretty strong argument to me.

     If Washburn were allowing the sculpture as part of an open forum (anyone can put up a sculpture for a week), then people who were familiar with the open forum would realize that Washburn isn't endorsing the sculpture. If the sculpture were a work by a famous artist, or presented as part of an exhibition of art of a certain era, then again people would probably perceive that Washburn is just displaying the work for its historical or artistic importance (just as a museum exhibition of 16th-century Italian art wouldn't be seen as endorsing Christianity just because many of the great paintings of the time were on Christian themes). But as it stands, an observer seeing the sculpture, and knowing that it was specially selected for display by the University, would perceive it as the University's approval of an anti-religious message.

     I'm not sure that such lawsuits should succeed: It's not clear to me that courts should decide what works even a public university may display, and deciding what constitutes endorsement or disapproval is often very hard, especially when it comes to art (though in this case the message of disapproval seems pretty clear). But once the Court has started doing this as to art that endorses religion, there's a pretty strong case that courts should do the same as to art that disapproves of religion. It will be interesting to see how all this comes out.

     If anyone knows more of the story behind the sculpture, the artist, and the decision to put it up, I'd love to hear it.

UPDATE: Miter? Phallus? Both? Readers are split -- you be the judge; see here for a picture. In any case, even without the phallic link, the sculpture coupled with the title and the caption seems pretty anti-Catholic to me.

Thursday, January 8, 2004

Originalism and the Role of Precedent: At the annual meeting of the Law Professor Division of the Federalist Society this past weekend in Atlanta, I moderated a panel on "Transitions to Originalism" which concerned how, if one accepts originalism as the proper method of constitutional interpretation, do you move from where we are to restore the original meaning? An important aspect of this question is the proper role of precedent in a system in which faith is pledged to a written constitution. Larry Solum was one of the panelists and gave an excellent talk. Now he has published an expanded version of his talk on Legal Theory Blog. It poses a wonderful "formalist" challenge to those who, like myself, think that the original meaning of the Constitution is and should be binding on judges. Here is the introduction:

Frequent readers know that I am a self-avowed neoformalist. What does that mean? Putting it in the negative, I reject the idea that law should be used instrumentally by judges to achieve the judge's idea of what constitutes good policy. On the positive side, I have argued that judges should adhere to "the rules laid down," roughly the text of statutes and constitutions in light of evidence of their original meaning. For a very brief summary of my views, surf to A Neoformalist Manifesto. In this post, I will simply assume that a formalist legal regime is the goal, and ask the next question: "How can we get to formalism?" This is too big a question for a single blog post, so I will limit my discussion to an important subset of this question: "How can we get to a formalist constitutional regime?"

I am not going to argue for the virtues of formalism. Instead, for the sake of argument we can begin with the assumption that the goal is a formalist constitution--more or a less a constitutional regime where courts look to the text, structure, and original meaning of the Constitution as sources of interpretive authority and not a regime where judges rely on their own beliefs about what is just or what will produce the best consequences as a source of constitutional law.

We do not have a formalist constitution today. What if we had the political will to achieve that goal? What is the best way to get to constitutional formalism? . . .
Another legal publishing story: Carolyn Elefant writes:
I read your post on Jared Gross and how he was able to get his student note published in a journal. I was never on law review in law school but I published an article a few months after graduation and have been published in journals twice more. I have found that it's surprisingly easy to get published in a journal -- after all, who but law professors (and even them) have the time or desire to put together a 400 footnote piece. . . .
So if you've got something you've written (or want to write), polish it up and send it out. Go here for links to law review addresses (postal and e-mail).
Discrimination based on ethnicity: My earlier post on color discrimination led a reader to ask -- how exactly does Title VII bar discrimination based on ethnicity? It mentions race and national origin, but those aren't necessarily the same as ethnicity; for instance, discrimination against a third-generation Italian-American because he's of Italian extraction might be described as neither race discrimination (since Italians are generally considered white these days) nor national origin discrimination, if "national origin" is interpreted as the place where the person was born. Ethnic (rather than religious) discrimination against Jews (for instance, refusal to hire even an atheistic Jew because he is ethnically Jewish) is even harder to describe as national origin, since ethnic Jews are generally seen as ethnically Jewish regardless of where their ancestors came from, unless you think back several millenia.

     As it happens, though, the law deals with these semantic conundrums the same way it deals with many (though not all) semantic conundrums: by ignoring them. The courts have generally treated Title VII as barring ethnic discrimination; the explanation would presumably be that "national origin" does refer to ethnicity, but courts often don't even say it that explicitly. It's just the way the law has developed, and it's now pretty well-settled. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994); East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).

     The Civil Rights Act of 1866 is a somewhat different story: Its prohibition on discrimination based on "race" has been interpreted as applying also to discrimination based on ethnicity -- such as Jewish, Arab, etc. -- see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) -- because apparently in the late 1800s, various ethnic groups were indeed often referred to as separate "races."
Free trade: Michael Kinsley (Slate) has a good piece on the subject.
Dean's a Believer: From Marni Soupcoff, who is a bit skeptical about Howard Dean's sudden profession of religious faith:

Dean's a Believer

(Sung to the tune of the Monkees' I'm a Believer)

I thought God was
Only true for Republicans
Meant for some white trash
But not for me
God was just so kitschy
That's the way it seemed
Wind-powered energy
Was more for me

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

I thought God was
More or less for low-class dupes
But the less I prayed the worse
I polled, oh yeah
What's the harm in claiming
Jesus is my guy
Southern votes got me kneeling
That's no lie

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

God was just so tacky
That's the way it seemed
Organic pilafs

Were more for me

And then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
I'm pi-ous
I'm a believer
I couldn't leave God
If I tried

Then I saw the polls
Now I'm a believer
Not a trace
Of doubt in my mind
Now I'm a believer
Yeah, yeah, yeah
Yeah, yeah, yeah
I'm a believer
I'm a believer
I'm a believer

And if you love dogs, I'm a retriever

And if you're a football fan, I'm a receiver

And if you're into wool, I'm a weaver

Just what color are you? The Civil Rights Act of 1964 bars discrimination based on race, religion, national origin, sex, and color. "Color" discrimination has generally been seen as pretty much a synonym for race or ethnicity discrimination; I suppose that inclusion of the term makes clear that, for instance, discrimination against dark-skinned blacks and in favor of light-skinned blacks is illegal, but in litigation there's rarely much of a discussion of color as such, separately from race.

     But employees who file complaints with the Equal Employment Opportunity Commission generally don't know that. They see that they may allege discrimination on various bases, including color, so they allege color discrimination as well as race discrimination. And then they have to self-describe the color.

     This yields some odd results: It's common for people to self-describe as being "white" or "black," but it's a bit strange -- especially given modern norms -- to see the 133 FLB-EEOC decisions where a person has labeled his color as "yellow" and 19 where the person said "red." Still more unusual is when people get too literal: hence the seven cases where people said they were "tan," two "beige," one "chocolate," one "pink," and one "off-white."

     I'm pretty sure there's no broader legal or political point flowing from this -- but it's an odd circumstance that I thought some readers might find interesting.
Voting alignments: Yesterday I asked:
The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned?
Mostafa Sabet, Will Trachman, Marc Weinstein, David Gil, and Barry Jacobs got the right answer: Souter and Ginsburg, who voted together in 91% of the cases. Rehnquist and Kennedy voted together in 89.7%; Ginsburg and Breyer in 84.4%; and Scalia and Thomas also in 84.4%. Thomas and Breyer were least aligned, voting together in 44.7% of the cases, and only 12.5% of the nonunanimous ones.

     For similar information from past years, see Sasha's post from last July.
Law professor fame: Gary O'Connor reports that Yale law professor Akhil Amar was apparently mentioned during last night's West Wing episode:
Josh Lyman said "One of my law school classmates published an article on the constitutionality of Lincoln's general order" and another character (a lawyer from North Carolina complaining about the fact that North Carolina's copy of the Bill of Rights was stolen by a Union soldier in the Civil War) said "Akhil Amar."
Amar is a consultant to West Wing.
Scooped! Just noticed that John Rosenberg's excellent Discriminations blog beat me by 3 days to the Flagstar racially discriminatory loan fees story -- and even used the "affirmative action bake sale" analogy. Priority: Rosenberg.
More on DDT: Those interested in DDT -- the miracle pesticide that saves human lives but threatened bald eagles and other raptor species -- should read Ronald Bailey's latest Reason column here. It is a thoughtful counterpoint to claims that DDT never had any impact on birds (see, e.g., here). To get to my prior posts on DDT, start here.

Wednesday, January 7, 2004

A heartening tale for students writing law review articles: Reader Jared Gross writes:
I am writing to inform you of . . . [the] help you provided me, which has resulted in my Journal note being given an offer of publication. My own Journal . . . declined to print my note . . . . [But] another law review has made me an offer . . . . So instead of a "student note" it is an "attorney article."

Why do you care? When I began as a staff member on my journal, I was advised to read your piece on writing a student note. Then, a week ago, I was perusing your blog and followed a link that brought me to the list of journals/reviews accepting submissions via email. Well, two weeks later, and I have an offer.
This could be you!
Sex discrimination in New York Times book review? Duncan Frissell discusses the subject.
New Stu's Views:
Voting alignments: The Harvard Law Review, vol. 117, p. 481, counts the percentage of times that each pair of Justices voted together in the 2002-03 Term (apparently the number of times they joined the same opinion, not just reached the same bottom line -- "the number of decisions in which the two Justices agreed in a majority, plurality, dissenting, or concurring opinion"). According to this table, which Justices were most often aligned? I'll post the answer tomorrow, and note the first person who figured out the correct answer -- but no fair peeking! (UPDATE: The answer is here.)

UPDATE: The first three responses were Scalia and Thomas. But if the answer were that obvious, why would I be asking?

NOTE: I originally omitted "in the 2002-03 Term"; sorry about that! Fortunately, most of my correspondents seem to have assumed this.
The new Bush immigration plan: offers one summary. The key plank is to give illegal workers a three or possibly six-year temporary visa if they step forward with an [illegal] job in hand. When the temporary visa expires, then they have to leave the country. In the meantime they could apply for a greencard, although they would not receive preferential treatment.

The full details remain to be hammered out, but I see at least one obvious flaw with the idea. Most illegal immigrants do not much trust governments of any kind. Unless they expect a significant boost in wages, why should they step forward? To enjoy the benefits of U.S. federal labor regulations? Try telling that story around rural Mexico, where many of the workers come from. The only question is whether you get laughs or hostility in response.

I wonder also how employers of illegals should feel about such an offer to legalize the workers. Either wages will go up or not. If wages don't go up, workers won't step forward. If wages do go up, employers won't necessarily want illegal workers to step forward and may pressure them not to. There is also the question of what legal liability the employer would have, if his workers step forward and admit their illegality.

I can see that this policy is a move in the right direction, but I suspect that a true, workable amnesty will have to be more "blanket" in nature.
Cultures of Fear: Mark Steyn has an interesting column, Go ahead, burglar, make my day, in which he compares a community that allows personal self defense from one that discourages or punishes it.

But that's the point: you're there, the police aren't. And, even in jurisdictions whose constabularies aren't quite so monumentally useless as Britain's, a citizen in his own home should have the right to make his own assessment of the danger without being second-guessed by fellows who aren't on the scene.

And, once you give the citizen that right, he hardly ever has to exercise it. Take Miss Smith's situation: she's at home, but the burglar still comes a-knocking. Thanks to burglar alarms, British criminals have figured out that it's easier to wait till you come home, ring the door bell, and punch you in the kisser.

In my part of the world, that's virtually unknown. In America as a whole, 12.7 per cent of burglaries are of "occupied homes"; in Britain, it's 59 per cent. Installing a laser system may make your property more secure, but it makes you less so. As for Ann Widung's "culture of fear", it's not American therapists but English ones who've made a lucrative speciality out of treating children traumatised by such burglaries.
(Thanks to Instapundit for the link)
Observant versus non-Observant Jews: This story (via How Appealing), about local opposition to a Chabad-Lubavitch synagogue, spurred largely by less-observant Jews, reminds me of what my observant Jewish friends often tell me: the worst boss to have is often a secular Jew, who often evinces hostility to the observant Jews' religious requirements; much better to have a Christian boss, especially a religious Christian boss, who tends to be far more accommodating of Sabbath observance, kashruth, and other concerns of the observant Jewish employee. On the other hand, concerns by less-observant Jews about the religious makeup of the community are not motivated by pure prejudice. Less-observant Jews tend to be extremely loyal to, and supportive of, good local public schools, while Orthodox Jews usually send their kids to Jewish day schools and therefore have far less interest in the public schools (which can also affect local property values).
Imperialism and Colonialism Chris Brooke is plugging Sankar Muthu's excellent book Enlightenment against Empire. I've mentioned it before, as well, but thought I'd take the occasion to mention the upcoming conference "Colonialism and Its Legacies" I'm cochairing with my colleague Iris Young April 23-25. (That's the same weekend that APA Central is in Chicago-- philosophers coming to town for that conference should feel free to walk the couple of blocks to our conference as well. Muthu is among the presenters; as are most of the other leading historians of political thought about empire and colonialism.

With the American Society for Political and Legal Philosophy meeting out of the way, the colonialism conference becomes my next full-time preoccupation. But speaking of the ASPLP, the newest volume of its Nomos series is out: Secession and Self-Determination, coedited by Stephen Macedo of Princeton and Allen Buchanan of Duke. I think it's an especially good one, with contributions from Donald Horowitz, Wayne Norman, Margaret Moore, Mark Brandon, and Buchanan himself, among others (where, yes, "others" includes me.)
Ninth Circuit (Sort of) Gets it Right: Peterson v. Hewlett-Packard:
conflict between Peterson and Hewlett- Packard arose when the company began displaying "diversity posters" in its Boise office as one component of its workplace diversity campaign. The first series consisted of five posters, each showing a photograph of a Hewlett- Packard employee above the caption "Black," "Blonde," "Old," "Gay," or "Hispanic." Posters in the second series included photographs of the same five employees and a description of the featured employee's personal interests, as well as the slogan "Diversity is Our Strength."
Peterson describes himself as a "devout Christian," who believes that homosexual activities violate the commandments contained in the Bible and that he has a duty "to expose evil when confronted with sin." In response to the posters that read "Gay," Peterson posted two Biblical scriptures on an overhead bin in his work cubicle. The scriptures were printed in a typeface large enough to be visible to co-workers, customers, and others who passed through an adjacent corridor. One of Peterson's postings was taken from Corinthians 10:12. The other featured the following passage from Isaiah:
The shew of their countenance doth witness against them; and they declare their sin as Sodom, they hide it not. Woe unto their soul! For they have rewarded evil unto themselves. Isaiah 3:9
Subsequently, Peterson posted a third scriptural passage. This time he chose the well-known and highly controversial passage from Leviticus:
If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them. Leviticus 20:13
Peterson's direct supervisor removed the scriptural passages after consulting her supervisor and determining that they could be offensive to certain employees, and that the posting of the verses violated Hewlett-Packard's policy prohibiting harassment. Throughout the relevant period, Hewlett-Packard's harassment policy stated as follows:
Any comments or conduct relating to a person's race, gender, religion, disability, age, sexual orientation, or ethnic background that fail to respect the dignity and feeling [sic] of the individual are unacceptable.
*2 Over the course of several days after Peterson posted the Biblical materials, he attended a series of meetings with Hewlett-Packard managers, during which he and they tried to explain to each other their respective positions. Peterson explained that he meant the passages to communicate a message condemning "gay behavior." The scriptural passages, he said, were "intended to be hurtful. And the reason [they were] intended to be hurtful is you cannot have correction unless people are faced with truth." Peterson hoped that his gay and lesbian co-workers would read the passages, repent, and be saved.
In these meetings, Peterson also asserted that Hewlett-Packard's workplace diversity campaign was an initiative to "target" heterosexual and fundamentalist Christian employees at Hewlett-Packard, in general, and him in particular. Ultimately, Peterson and the managers were unable to agree on how to resolve the conflict. Peterson proposed that he would remove the offending scriptural passages if Hewlett-Packard removed the "Gay" posters; if, however, Hewlett-Packard would not remove the posters, he would not remove the passages. When the managers rejected both options, Peterson responded: "I don't see any way that I can compromise what I am doing that would satisfy both [Hewlett- Packard] and my own conscience." He further remonstrated: "as long as [Hewlett- Packard] is condoning [homosexuality] I'm going to oppose it...."
Peterson was given time off with pay to reconsider his position. When he returned to work, he again posted the scriptural passages and refused to remove them. After further meetings with Hewlett-Packard managers, Peterson was terminated for insubordination.
Peterson asserted that he was subjected to disparate treatment because of his religion, which he clearly was not, and that H-P failed to reasonably accommodate his religious beliefs, which also is a nonstarter, as H-P, as the court holds, is under no obligation to make all of its employees feel totally comforable at the expense of corporate policies intended to increase productivity and profits (especially when this would involve the uncomfortable employee intentionally making other employees feel uncomfortable). On this much, the Ninth Circuit and I agree. (Edit: Indeed, I don't think Peterson needed to be acommodated at all. His religious beliefs were in no way being violated. No one asked him to endorse the morality of homosexual conduct, just to tolerate signs asking employees to be tolerant of gays as co-workers.)

However, the opinion, written by arch-liberal Judge Stephen Reinhardt, suggests that H-P's case is strengthened because trying to stop internal discrimination against gays is consistent with the "spirit" of federal and state antidiscrimination laws. Ahem. Neither federal law nor Idaho law bans employment discrimination against gays. There is no such "spirit" of the law, except in Reinhardt's imagination.

Moreover, Reinhardt throws in gratuitous references to Grutter v. Bollinger(upholding affirmative action in state university admissions and noting the importance of a diverse workplace to corporate America) Romer v. Evans (invalidating a Colorado initiative banning local gay rights laws) to support the court's conclusion that requiring H-P to take down its pro-diversity posters re gays would create "undue hardship" for H-P. You have to read the whole opinion closely to see it, but I read Reinhardt as subtly suggesting that a company may have a statutory obligation with regard to other minorities, supported by constitutional interests, to enforce pro-diversity policies at the expense of other concerns. By contrast, Reinhardt makes no reference at all to the Dale case (upholding the Boy Scouts' First Amendment right to exclude gay scoutmasters), even though that opinion suggests that H-P may have a constitutional interest in controlling its own message regarding diversity issues (Dale is not quite on point because H-P isn't a non-profit expressive association like the Scouts, but it's certainly closer to the mark than is Grutter or Romer). In short, Reinhardt's dicta suggests that H-P's case is strengthened because of public, statutory, and constitutional interests in having companies proactively prevent a hostile environment for minorities, not because of the public, statutory, and constitutional interests in preserving corporate autonomy from antidiscrimination laws that attempt to regulate speech.

Oddly enough, Peterson failed to raise his strongest claim, that H-P's diversity campaign subjected him to a hostile working environment as a conservative Christian-surely the "be tolerant of gays" campaign created a subjectively hostile environment for him! I think this claim would have lost on the legal merits (and should lose under any rational, and/or First Amendment protective statutory scheme), but then again, a Christian manager won a large settlement from Dairy Mart for being required to sell Playboy and Penthouse magazine at the store she managed. I wonder how Reinhardt would have squared his obvious concern for having the law encourage proactive action against hostile environments for other minorities with such a claim by Peterson.
ADDENDUM (in response to readers' queries): Unlike in some cases, there is no hint in this case that H-P's diversity policy was undertaken to comply with federal antidiscrimination laws, and, indeed, the policy encompassed gays, who are NOT protected by such laws. It appears, though it is not certain, that H-P simply believes, rightly or wrongly, that its policy is good for business. If, however, H-P's policy had been responsive to concerns about legal liability, Peterson could have argued that enforcing the policy against his speech to protect against legal liability created a First Amendment issue. Of course, in the absence of direct or indirect state action, Peterson could not assert a First Amendment defense. On the other hand, H-P could at least plausibly raise a First Amendment defense to any interpretation of federal antidiscrimination rules that interfered with its diversity campaign.
Puzzling Bushism of the Day (Slate):
"So thank you for reminding me about the importance of being a good mom and a great volunteer as well."—St. Louis, Jan. 5, 2004
I don't get it -- what's supposedly wrong, otherwise Bushistic, or remotely noteworthy about this? I honestly don't understand. Is it that Bush, being a man, can't himself be a good mom? But he's not saying that it reminded him of the importance of his being a good mom -- he's saying that it reminded him of the importance of being a good mom, which presumably means (quite soundly, as a matter of grammar and semantics) the importance of moms being good. (Thanks to reader Gregory Taylor for the pointer.)
The Guardian (U.K.) on the environment and on Lomborg: The Daily Ablution has the scoop.

UPDATE: The Guardian's environmental editor responds, also at The Daily Ablution; apparently they will be having more about Lomborg shortly.

The trouble with indirect citation: Last Friday, I quoted columnist Clarence Page, who was paraphrasing an item from Abigail Thernstrom's & Stephan Thernstrom's No Excuses: Closing the Racial Gap in Learning:
In the survey by Laurence Steinberg, a Temple University social scientist, published in his 1996 book, "Beyond the Classroom," most of the black and Hispanic students surveyed said they could avoid trouble at home as long as their grades stayed above C-minus.

Most of the whites, by contrast, said their parents would give them a hard time if their children came home with anything less than a B-minus.

By contrast, most of the Asian students, whether immigrant or native-born, said that their parents would be upset if they brought home anything less than an A-minus.
I said that this was a fair summary of what the Thernstroms said, but I was working from memory -- and my memory was subtly mistaken, as was Page's quotation: The Steinberg study reports that, to quote the Thernstroms, "Black and Hispanic students got into trouble at home only when their grades fell below C-" -- not that they could avoid trouble as long as their grades stayed above C-, which literally means they got into trouble only when their grades fell below an unmodified C. Not a huge difference (especially since studies like this can't be very precise, and thus might not really be able to measure subtle differences between parents' likely reaction to a C- and parents' likely reaction to a C), but it is a difference, and a reminder to always check the original, since even well-intentioned paraphrases can often mangle things, and multiple paraphrases can yield a game of broken telephone.

     Incidentally, I did check the Steinberg book, and can say that the Thernstroms are properly reporting the Steinberg study.
Gibraltar: Anglo culture under siege? The Rock of Gibraltar was the most interesting locale of my recent honeymoon. Typically we think of Anglo-American culture as penetrating the rest of the world, but in this case the positions are reversed. 30,000 nervous Gibraltarians are surrounded by 40 million Spaniards. Morocco is on the other side. Gibraltar is currently a territory of Britain and the natives hold British passports. Spain has wanted the rock back for many years, mostly as a matter of national pride. The British obtained the possession in the early eighteenth century. Many British politicians simply wish that the issue would go away, but they are reluctant to hand over the territory to Spain. Franco cut off the rock from the mainland for twenty years, a kind of Berlin blockade. It only strengthened the will and identity of the Gibraltarians. Today the country is prosperous and free. Independence under the EU is discussed sometimes, but Spain and Britain would have to agree on terms.

I found the Gibraltarians (sounds like something from a bad science fiction novel, no?) to be very patriotic, very proud of their British connection, proud of martial virtue, and very suspicious of the Spaniards. It does not matter that many of them have darkish complexions and names like Pepe. Gibraltar also has a thriving Jewish community, mostly Orthodox, two hundred families I am told.

Here is a good article on the Gibraltar question and international law. The future of the rock affects the course of EU cooperation and military strategy, as well as how Taiwan is handled.

If you are ever in southern Spain, take some time and see Gibraltar. It has some of the most spectacular views I know. You also can see many strange remnants of British culture, such as an undue reliance on fish and chips shop, more per capita than you would ever see in Britain.
Why Football Stinks, Part XXVI: Richard Sandomir, in today's New York Times, has an article that explains part of the reason football games are becoming completely unwatchable. The big LSU-Oklahoma matchup Sunday night lasted for 3 hours and 43 minutes, of which -- get this! -- a total of 16 minutes and 28 seconds was actual live football action. The NFL's worse; the Indianapolis-Denver playoff game had all of 12 minutes of live action. 12 minutes!!! It's pathetic, really. I feel sorriest for the folks up in the stands -- at least those of us at home can use our TIVOs to get at the good stuff (and/or switch stations to something decent, like a good, 90-minutes-of-action soccer game).
Israelis Have Given Up on the "Peace Process," For Now: From Ha'aretz: "a clear majority of the Jewish public (59 percent) prefer a swift, unilateral separation by Israel from the Palestinians, with the other alternative being to work for an agreement with the Palestinians even if the process takes a long time (today only 29 percent favor that, and 12 percent have no clear preference). " Can you blame them?