Saturday, January 17, 2004

Check out this article and book review about the Russian (Orwell-like) critic of communism from the far left, Victor Serge. (Link via Arts & Letters Daily.)
Cannibalism: Cool!
Further scandal at The Nature Conservancy: The IRS is starting a large-scale audit of The Nature Conservancy, one of the largest non-profits in the nation. Today's Washington Post presents the gory details, note that the published version is much longer and more detailed than the on-line account. Here is an earlier article. The institution made major loans to employees and board members, bought and then resold land to trustees and supporters at reduced prices, and drills for oil on nature preserve land. The tax records of the institution are considered a complete mess. The institution has over $3 billion in assets, so this is hardly a small matter.

At least one of the lessons is simple: know something about the non-profits you support. This area is just ripe for institutional failure. Too many donors would rather look the other way and pat themselves on the back for their generosity. They do not want to hear bad news, which is one reason why news about bad non-profits often remains hidden for so long. Feeling good about oneself is a worthy endeavor, but it also can interfere with the smooth functioning of voluntary institutions.

Friday, January 16, 2004

Pickering: Too bad Bush decided to use his first judicial recess appointment to appoint Pickering. As I've discussed before, Pickering was among the worst of the Bush judicial nominees.

UPDATE: Readers have pointed me to this and this article defending Pickering, both of which I had previously read, and neither of which I find exonerates him from the criticisms in my original post. (1) It is still highly inappropriate for a judge to lobby the Justice Department regarding a case before him; (2) Choosing to do so on behalf of a cross-burner is an odd choice of folks to champion, even if his coconspirators did get much lighter sentences (such anomalies are not at all rare in our system unfortunately); and (3) This choice becomes even odder when the rationale given for going easy on the cross-burner is in part to avoid pissing off Mississippi's white folks, a fact not mentioned in either of the two pieces above defending Pickering.

On the issue of Pickering pressuring attorneys who appear before him to lobby on behalf of his confirmation, several professorial colleagues pointed out to me that his behavior does not violate the judicial ethics rules. That can be the Bush Administration's slogan for Pickering: "Doesn't violate the letter of the ethics rules! Has the bare minimum of ethics to prevent professional responsibility professors from calling for his impeachment or resignation!"

Imagine if a Clinton nominee had, while a federal district judge, lobbied the Justice Department for a more lenient sentence for a convicted criminal in a case before that nominee. Many of the same folks who have defended Pickering would have been all over that nominee, and Clinton for nominating him. Sorry folks, I'm not going to overlook a nominee's flaws just because he was nominated by a Republican president.
Solum on Pickering Recess Appointment: I cannot blog on the Pickering recess appontment now as I am running out the door to see Urinetown. (Yes, that is the name of the play which I am assured is not a complete downer. I am not holding my breath, though perhaps with that title, I should be). In response to Eugene's query, I had heard some time ago that Miguel Estrada turned down an earlier administration offer of a recess appointment when he withdrew his name from consideration for regular appointment.

At any rate, Larry Solum has published his typically thoughtful reaction to today's development here. I am sure there will be much more to come.
The much-talked about recess appointments have indeed happened: Bush just appointed Judge Pickering to the Fifth Circuit, though he had been blocked in the Senate before. I'm surprised, though, that they'd lead with Pickering -- why not Miguel Estrada, who seems like he'd be politically more appealing? Is he coming down the pike? Or would some nominees not be even willing to consider a recess appointment, which means much more public controversy, and the risk that the person again won't be confirmed for the permanent appointment? A temporary shift into the judiciary, followed by having to go back into private practice, can be quite disruptive of one's professional life.

     By the way, what would happen to Pickering, who's a federal district court judge now, if he isn't confirmed for the permanent appointment when his name is sent up again? Would he automatically return to the federal district court? Or would he lose that job permanently, at least until he's reappointed to the district court and confirmed for that position? I assume he'd lose the district court judgeship immediately and permanently, but I'm not positive.

UPDATE: Incidentally, it seems to me quite certain that if Bush had appointed California Supreme Court Justice Janice Rogers Brown to a recess appointment, and then she wasn't confirmed for a permanent post by the Senate, she would lose her California Supreme Court seat permanently (unless Gov. Schwarzenegger reappoints her eventually, but even if he's willing, Brown's California seat would have to be filled immediately, and if she's not confirmed for a permanent post, it may be several years before there's another California vacancy for her to refill).

FURTHER UPDATE: Larry Solum writes:
As I understand it, Miguel Estrada was also offered a recess appointment, but turned it down--presumably for career related reasons.
Pi equals 3 in the Sixth Circuit, since a 500-foot circle seems to contain "750,000 sq. feet." Such a circle actually contains pi x 500 x 500 = about 785,000 sq. feet, assuming the polling place is a dimensionless point, and a bit more for polling places that have length and width themselves (if the polling place, for instance, is 40 x 40, then the circle would contain about 850,000 sq. feet).

     OK, OK, it's an approximation, so it's not such a big deal. Still, mathematical calculations are among the few places where courts can make things accurate, objective, and uncontroversial -- why not take advantage of that? (Thanks to How Appealing for the pointer to the case.)

UPDATE: Reader David Chesler comes to the Sixth Circuit's defense. The court, he points out, wrote "Accordingly, for urban voting places in Kentucky, the 500-foot barrier does create 750,000 sq. feet of silence." Technically, that's true: It does create 750,000 sq. feet of silence. It also creates another 35,000+ sq. feet of silence on top of that. Fair enough!

     Likewise, the court's statement about the exception for private property -- "Appellees therefore argue that at voting places surrounded by private property, electioneering may occur within 500 feet, thereby obviating what would otherwise be 750,000 sq. feet of enforced silence" -- accurately reports that the exception would obviate 750,000 sq. feet of enforced silence, though it would also obviate 35,000+ sq. feet more. (I assume that the court is endorsing the appellees' calculation here, not just quoting it.) Every court should have a defense lawyer like Mr. Chesler, I say. Still, I continue to be a bit peeved by the court's discussion.

FURTHER UPDATE: I think this calls not for a Petition for Rehearing, but for a Petition for Recalculation.
Mythical Supreme Court case: The Cincinnati Post reports:
Common Pleas Court Judge Richard Niehaus . . . suggested this may be one of the last obscenity cases of its kind if U.S. Supreme Court rulings are considered.

In an Alabama case, a woman was arrested and charged with pandering obscenity for selling "marital aids" and sex toys. Although it is legal to possess the items, Alabama courts ruled, it is illegal to sell them.

The U.S. Supreme Court considered the case and ruled that making it illegal to sell the sex toys was tantamount to preventing people from possessing them, thus violating the rights of privacy of those who want them.

"If (that Alabama case) is upheld, prosecutors must show overwhelming public interest in preventing the sale of (sex toys)," Niehaus said Wednesday.

Following that logic, the judge added, it would be similar to make the same ruling about adult videos and material.

But he declined to make that ruling in this case.

"It's not for a trial court to make a decision of this magnitude," Niehaus said.

Sirkin agreed and said after Jenkins was convicted that his was the perfect case to appeal based on the U.S. Supreme Court ruling in the Alabama case. . . .
Well, it would be, if such a U.S. Supreme Court ruling exists -- but it doesn't. There has been no U.S. Supreme Court case that "ruled that making it illegal to sell the sex toys was tantamount to preventing people from possessing them, thus violating the rights of privacy of those who want them." There is a federal trial court case that so held, Williams v. Pryor, 220 F. Supp. 2d 1257 (N.D. Ala. 2002), but surely that's a much less influential precedent than a U.S. Supreme Court decision would be.

     Thanks to How Appealing for the pointer to the story.
Primaries: Harry Brighouse writes:
As the primaries creep up on us (in the US), I want to make a point against the primary system that seems obvious to me but I've not heard made elsewhere. It is simply this: it constitutes an unwarranted violation of the principle of freedom of association.

The States which have primaries effectively impose on political parties a process for selecting their candidates that the members of those parties have no (collective) choice about. I know that in some (perhaps all) states the primary is not binding, and can be overridden by a party convention. But suppose that Candidate A wins the primary and Candidate B is nevertheless selected by the party. Then Candidate B works at a tremendous disadvantage relative to a world in which he was selected by the party without the State having organized an independent vote against it. Why on earth shouldn't party members (that is, people who have chosen to join and pay membership dues in a party) have the right to decide collectively which candidate they want to represent them, without any interference by the State? Closed primaries are bad enough; in open primaries the State effectively forces political parties to allow open opponents of their party to participate in candidate selection. Sometimes when I think about this I feel like a naïve European — there must be some justification that I am missing. State interference in the process of party formation is so extensive in the US already (it varies by state, but mechanisms include having non-partisan local races, restrictive ballot access rules, restrictions on out-of-state contributions, and the gerrymandering, sorry, redistricting process, quite apart from the stupid winner-take-all system); it just seems flat out wrong to force people who have freely associated for the purpose of contesting political power to share the process with their avowed (and paid up) opponents. So, what am I missing?
AT some level Harry's not 'missing' anything; he's perfectly right. The parties in the U.S. have been rendered less-than-wholly independent of the state, and of the states.

As to explanations:

1) The Constitutional structure. The Constitution a) allows each state to determine most of the rules of most of its elections, conspisuously including the rules for electing members of the House of Representatives. This acts as a genuine barrier to the adoption of anything like a party list system. (The Constitution also mandates that House members must be residents of the state-- though not necessarily the district-- they represent.) Whether chosen by primaries or by caucuses, U.S. House candidates are going to be chosen by state-level procedures. One of the primary (no pun intended) mechanisms of party autonomy in other FPP systems, and even moreso in any PR/ STV system, is party listmaking. (There are mechanisms for candidate selection by local party members in at least the UK and Australia, but I genuinely don't understand how those interact with the centralized party-list formation that also goes on. I suspect that most of the time the local selection is a formality.) That simply can't operate here.

Proviso: The Constitution does not mandate single-member districts. California, for instance, would be free to have a single at-large district for the state, and to allocate its eight hundred and thirty or so U.S. House seats by PR or STV in a single statewide election. In that case, the state party would gain tremendous power through its ability to determine a party list. Similarly, states are free to experiment with such things in their state legislative elections.

2) Race. The parties ceased to be regarded as purely private voluntary associations in substantial part because, when the south was a one-party region, the Democratic Party used whites-only primaries to select their candidates. It was decided that the Democrats' status as a non-state actor didn't immunize this practice from the obligation to protect voting rights for blacks.
Speech in Britain: According to a British newspaper,
A PREACHER who spoke out against the "sin" of homosexuality -- inflaming a Bournemouth crowd and sparking a furore over freedom of speech -- was rightly convicted of a public order offence, top judges have ruled. . . .

The late Mr Hammond, a preacher for 20 years, was prosecuted after holding a controversial sign while preaching in The Square, Bournemouth, in October 2001.

The sign contained the words: "Stop Immorality, Stop Homosexuality, Stop Lesbianism", as well as making references to Jesus.

Lord Justice May, sitting with Mr Justice Harrison, at the High Court in London, was told the sign caused a furore as a group of 30 to 40 people gathered round.

Hugh Tomlinson, QC, appearing for Mr Hammond's executors [Hammond had died by then], said: "He (Mr Hammond) was subjected to a number of assaults. Soil was thrown at him and water poured over his head.

"Someone tried to seize the sign and he was knocked to the ground. He was the victim of the assault, not the perpetrator." . . .

Mr Hammond was eventually arrested for a breach of the peace. He was then charged and convicted under the 1986 Public Order Act for displaying a sign which was "threatening, abusive or insulting within the sight of a person likely to be caused harassment, alarm or distress".

He was fined £300 and ordered to pay £395 in legal costs.

The magistrates decided the restriction on Mr Hammond's right to freedom of expression under Article 10 of the European Convention on Human Rights had the legitimate aim of preventing disorder in the light of the crowd's reaction to his sign.

They concluded his behaviour went beyond that of legitimate protest.

Mr Tomlinson said that it had been wrong to prosecute Mr Hammond under public order legislation because he did not use offensive, stereotypical language on his sign.

Lord Justice May told the court: "I have not found this question easy because it is certainly correct that the words on the sign are short and not expressed in intemperate language.

"I have considered very carefully whether the court should conclude that the words on the sign were incapable of being held to be insulting.

"And I have come to the conclusion that it was open to the magistrates to reach the conclusion that they did." . . .
The heckler's veto seems alive and well in England -- if you express political, social, or religious views (not just personal face-to-face insults, but general ideological statements) that are "[]capable of being held to be insulting," and people attack you for it, then you might be the one who ends up being prosecuted. Incidentally, if any readers know whether any of Hammond's attackers were also prosecuted, I'd like to hear about it. Thanks to reader Ken Hirsch for the pointer.

UPDATE: Eric Rasmusen has more. Among other things, he reports that apparently none of Hammond's attackers were prosecuted.
District court citation: I'm pleased to report that the Volokh Conspiracy has apparently become the federal judiciary's go-to location for song lyrics, or at least lyrics to certain federal-judiciary-related songs. See this recent court decision. (Thanks to How Appealing for the pointer.)

More on Boomer Politicians on Drugs: A reader responds to my earlier post on boomer politicians in which I wrote, "Now that they are much older and hold political power, they are arguably more puritanical--at least in how they govern--than were their parents." He retorts: "Naah- they're just scared to tell the truth because they're afraid it might lose them votes."

I cannot argue with this, but what is the political dynamic at work? Is the baby boomer electorate so puritanical that they would punish progressive politicians who voiced support for liberalizing or legalizing intoxicants, or simply marijuana? Are Gen-Xers? Gen-Y? I am not sure this changes my fundamental frustration with the boomers whose pontification I used to have to listen to when I was young--especially pontificating by those a few years older than me in Bill Clinton's age group. (Note to younger readers. Boomers can be divided between those who entered college before or after 1970, and especially between those who were subjected to the serious risk of being drafted and those who, like me, were in the draft lottery after the Nixon drawdown of troops had begun and the number of draftees began to decline. But I digress.)

Or do these formerly moralistic, self righteous boomer politicians (you really had to live through this to understand) lack all courage of their convictions? I have my own theory, but it is of course a sweeping and therefore highly questionable generalization: The "Me Generation" was and remains committed to one overriding principle. Whatever they may happen want at the time. When they wanted to have sex ("free love") and use drugs they defended this on moral grounds, but when they become parents they don't want their children to use drugs so they oppose legalization. The constant principle here is what they happen to want at the time. Perhaps all generations are like this as they age, but this generation was unusually noisy when its members were younger about how morally superior they were to their elders ("Don't trust anyone over 30" they used to say--which used to be called the "Generation Gap")--as well as to anyone else who disagreed with them. Somehow I think younger readers who are now taught by old boomers know what I mean.

As for me, I was for legalization of intoxicating drugs then, and remain so now. (For my lengthy analysis of the issue see here and here.) And I hasten to add, though I am somewhat embarrassed to admit, that I have never even smoked marijuana--not once--then or now.
The unmarried Jane Galt on marriage promotion:
"I'm pretty skeptical about this $1.5 billion for marriage promotion. I mean, if our mothers can't chivvy us into marriage, when they're right there, nagging us constantly, starting every other goddamn sentence with "You know, if I had grandchildren, this would be a great opportunity to . . . ", mentioning ever-so-casually how nice we look in white . . .

Excuse me, are you still here?

As I was saying, if our mothers can't browbeat us into getting married, what hope has a faceless government bureacracy?

On the other hand, my mother doesn't have $1,500,000,000 to spend . . . "

Here is the permalink. Do note, by the way, that this sum is about $5 per American.

What are the costs of cold? It is very very cold today, even in Virginia. One estimate notes that about 770 Americans a year die from cold temperatures, supposedly more than die from hot temperatures (note: here is a measure of heat deaths, the comparison is a difficult one).

We are also offered the following on the economic effects of extreme cold:
"Health Impacts
The health impacts of extreme cold are greater in terms of mortality in humans. It appears that the causal mechanism for cold-related mortality is not so much a single cold snap as it is a longer term chronic exposure. Thus the deadly nature of heat waves per se appears to be greater than that of short periods of extreme cold. Research indicates that those at risk are primarily either engaged in outdoor activity, or are the elderly who are chronically exposed to colder indoor temperatures. This mechanism of injury causes a different set of problems for community mitigation than the heat problem.

There are a variety of transportation impacts due to cold weather. Diesel engines are stressed and, often fuel gels in extreme cold weather impacting trucking and rail traffic. Rivers and lakes freeze, stopping barge and ship traffic. Subsequent ice jams threaten bridges and can close major highways. Cold temperatures take their toll on vehicle batteries. Shear cold temperatures stress metal bridge structures. Transportation losses for the winter of 1976 -77 came to $6.5 billion (in 1980 dollars) (NOAA, 1982).

Cold temperature impacts on agriculture are frequently discussed in terms of frost and freeze impacts early or late in growing seasons. Absolute temperature and duration of extreme cold can have devastating effects on trees and winter crops as well. Prolonged cold snaps can impact livestock not protected from the frigid temperatures. In the winter of 1983-84, a single cold snap around Christmas destroyed over $1 billion of the citrus crop in Florida. Louisiana lost 80% of its citrus crop. Tennessee estimated $15 million in agriculture losses. Texas experienced hundreds of millions of dollars in crop damage (NOAA, 1983).

Energy consumption rise significantly during extreme cold weather. In the winter of 1976-77 additional energy consumption cost $3.8 billion (1980 dollars). This includes increase costs of electricity, fuel oil, and coal.

Water Resources and Infrastructure
Extreme cold temperatures can cause significant ground freezing problems, especially if there is little snow cover. Buried water pipes can burst causing massive ice problems and loss of water pressure in metropolitan areas. This poses a variety of public health and public safety problems. On case of a broken water main in Denver, Colorado forced the entire evacuation in sub-zero temperatures of the medically fragile patients of the Veteran's Hospital. Other cases of broken water mains have shut down subway systems and financial centers.
Schools often close during extreme cold snaps to protect the safety of children who wait for school buses." discusses the possibility of rolling blackouts in the Northeast, which again illustrates the necessity for some form of peak-load pricing during cold (and warm) spells.
More discrimination against the nonreligious: A New York appellate court has just upheld -- against an Establishment Clause challenge -- an employment contract under which a public school district provided up to three paid days for an employee's religious observance, apparently for any "Sabbath or other holy day" observed as a "requirement" of an employee's religion. The case is In re Main-Endwell Teachers' Ass'n v. Bd. of Ed., 2003 WL 23163126 (N.Y. App. Div. Jan. 15).

     Now if the school district wanted to give three extra personal leave days that religious people could use for their holidays, that would of course be fine. But this requirement means that religious employees (or, to be precise, religious employees whose religions require holy days that aren't part of the standard holiday set) get paid the same as nonreligious ones, but have to work three fewer days per year. Seems like pretty serious discrimination against nonreligious employees. If the Establishment Clause is interpreted, as the Court has suggested, as mandating neutrality towards religion, this seems to be a violation; and in any event, constitutional or not, it seems quite unfair, and in my view likely a violation of statutory bans on religious discrimination.

     Nor is this just a normal religious accommodation, such as letting employees get their holidays off without pay, rather than forcing them to quit or violate their felt religious obligations. There are certainly discrimination problems with those accommodations (consider the employee who wants Saturdays off for religious reasons, and the employee who wants Saturdays off to spend with his children), but at least they're (1) mitigated by the fact that the employee will presumably have to make up the lost time on some other day, and (2) justified by the concern that otherwise the employee might be out of a job. Here, the religious employee gets the day off and ends up getting paid for it, while the nonreligious employee must work to get his pay. And the paid leave policy isn't needed to prevent the employee from being out of a job; an unpaid leave policy would suffice for that.

     If a government employer put out a sign saying "Now hiring; religious employees, $40/hour, atheist and agnostic employees, $39.50/hour," this would be clear religious discrimination, a violation of Title VII, and, I think, of the Establishment Clause. The policy here, of giving 3 paid days off out of about 240 to religious employees, and not to atheist and agnostic employees (and, as I said, to the employees of those religions that don't mandate days of worship), seems to be just the same.
Boomer Candidates for "Higher" Office: Steve Bainbridge makes an excellent point yesterday in his Kerry's Pot Joke and Kerry's Policy on Drugs:

Fox News just ran a home video of John Kerry singing along to Puff the Magic Dragon at a private party, during which he fakes puffing on a joint. Fox ran it three times in about 5 minutes and then ran a fairly long story on it. Why? Seems sort of silly. Yet, perhaps it does raise a serious question. John Kerry's website says:

In order to deal with the problem of illegal drugs in this country, efforts must be focused on keeping drugs out of the country and our communities, as well as reducing demand for illegal drugs. John Kerry supports aggressively targeting traffickers and dealers, as well as making a commitment to sufficiently fund drug prevention and treatment programs.

If Kerry thinks smoking pot is no big deal, he ought to come out for legalization. If Kerry thinks it is a big deal, as his website claims, he shouldn't be joking about it. More generally, we keep electing politicians (on both sides of the aisle) who once used - or, for all we know, still use - recreational drugs. Once they get into office they perpetuate the so-called war on drugs, with all of its racism, unfairness, and failures. Why do we put up with it? It is time to have a serious debate about legalization without all the posturing.
Frankly this really bothered me about boomer Bill Clinton, whose justice department brought suit against my clients, the Oakland Cannabis Buyers Cooperative and many other similar organizations. I expected more from progressive boomers on this issue--well "hoped for" is probably more accurate than expected. I am old enough to recall what my fellow boomers said and did about marijuana and other personal freedom issues when they were young--especially their self righteousness. Now that they are much older and hold political power, they are arguably more puritanical--at least in how they govern--than were their parents.

UPDATE: A reader writes: "Naah -- they're just scared to tell the truth because they're afraid it might lose them votes." I cannot argue with this, but what is the political dynamic at work? Is the baby boomer electorate so puritanical that they would punish progressive polititians who voiced support for liberalizing or legalizing intoxicants, or simply marijuana? Are Gen-Xers? Gen-Y? I am not sure this changes my fundamental frustration with the boomers whose pontification I used to have to listen to when I was young--especially by those a few years older than me in Bill Clinton's age group. (Note to younger readers. Boomers can be divided between those who entered college before or after 1970, and especially between those who were subjected to the serious risk of being drafted and those who, like me, were in the draft lottery after the Nixon drawdown of troops had begun and the number of draftees began to decline.)
Woohoo! I just found out that we were apparently finalists for Week magazine's Blogger of the Year award, together with Mickey Kaus, Joshua Micah Marshall, Gawker, and Winds of Change; the winner was Marshall. I'm very pleased.

Thursday, January 15, 2004

Religious land use: A California assembly committee just rejected proposed AB 600, which would among other things "prohibit any local, state, or other public agency from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person" -- which included "communal worship, religious meetings, religious education, and day care services, the construction of structures, grounds, parking lots, and other necessary facilities for these purposes, and the use of existing facilities for these purposes" -- "unless the agency demonstrates that the imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

     I don't in principle oppose state statutes (as opposed to constitutional interpretations) that require governments to sometimes accommodate people who have religious or conscientious objections to generally applicable laws (though I don't like the "strict scrutiny" / "compelling government interest" test). I discuss my views on this at great length here. But I do oppose such rules when they give special treatment to religious objectors and not to others who have equally deeply held secular philosophical views. I therefore submitted the following testimony to the committee, and thought I'd pass it along to Conspiracy readers as well:
January 13, 2004

Dear Members of the Committee on Local Government:

All Californians deserve to be treated equally by the law -- Christians or Jews, Hundus or Muslims, agnostics or atheists. Unfortunately, AB 600 would discriminate among Californians and California organizations based on their religiosity. Religious schools and day care centers, for instance, would get special privileges. Religious meetings would get special privileges. Other private schools, day care centers, and meetings would be denied these privileges.

A Russian-American day care center would be treated worse than a Muslim day care center. A school devoted to a nonreligious philosophy (say, environmentalism and pacifism, libertarianism, or what have you) would be treated worse than a Catholic school. A weekly meeting on civil rights would be treated worse than a weekly Bible study meeting.

The law would thus discriminate against property owners who run secular schools, day care centers, and meetings. It would also discriminate against people who want to send their children to secular schools and day care centers, or people who want to go to the secular meetings. Parents who want to send their children to religious schools would have more options than people who want to send their children to nonreligious schools -- precisely because the law will be giving religious schools special breaks that aren't given to other schools. It's true that all religious denominations would be treated equally by the bill. But nonreligious Californians, and Californians who are religious but who focus more on secular matters than religious ones, would be discriminated against.

The law would also treat religious speech better than nonreligious speech, thus violating the government's obligation to treat all speakers equally, regardless of their message. People who want to spread religious messages, whether through schools, churches, day care centers, or meetings, should certainly have equal rights with those who want to spread secular messages. I have argued that the Supreme Court should mandate this equal treatment, and strongly opposed those who would relegate religious speech to second-class status. See, e.g., Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J. Law, Ethics & Pub. Pol. 341 (1999), But AB 600 wouldn't mandate equal treatment for religious speakers: It would give them preferential treatment. In the marketplace of ideas, religious ideas will thus have more legal rights than secular ideas. That, I think, is wrong.

I think such a law might therefore be unconstitutional, either under the First Amendment or the California Constitution's own Free Speech Clause and Establishment Clause. Just as the Free Exercise Clause bars discrimination against religion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), so the Establishment Clause has often been interpreted as barring favoritism for religion. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 18 (1947); Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

The U.S. Supreme Court has, for instance, held that a tax exemption for sales of religious books violated the First Amendment, because it discriminated in favor of religious books and against secular philosophical books. Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). In a decision that was, I think, strongly influenced by Establishment Clause considerations, the Supreme Court held that the religious objector provision of the draft laws had to apply equally to secular conscientious objectors. Welsh v. United States, 398 U.S. 333 (1970); see also id. at 344 (Harlan, J., concurring in the judgment, and providing the needed fifth vote) (relying explicitly on the Establishment Clause). And even when the U.S. Supreme Court interpreted the Free Exercise Clause as mandating accommodations for religious objectors, it made clear that religious speakers aren't entitled to any better treatment than secular speakers. Heffron v. ISKCON, 452 U.S. 640 (1981).

I realize that the constitutional question is unclear; some U.S. Supreme Court decisions have also said that some preferences for religion may be constitutionally permissible. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Corporation of the Presiding Bishop v. Amos, 483 U.S 327 (1987). But whether or not courts ultimately rule that such a proposal is unconstitutional, it is definitely discriminatory and unfair. The California Legislature should provide secular Californians as well as religious Californians more than just the bare constitutional minimum to which they're entitled. It should provide them with equal rights and equal treatment regardless of whether or not they are religious.

So if the Legislature wants to accommodate people's religious beliefs as well as their secular philosophical and conscientious beliefs, that's great. If the Legislature wants to protect people's ability to use their property to run schools, day care centers, and meetings that teach a wide variety of different philosophies, that's great. But it shouldn't give special preference for the religious, and discriminate against the secular.

Sincerely Yours,

Eugene Volokh
Originalism and Precedent--The Next Big Issue: Originally I was not an originalist. For most of my career, I rejected originalism because I accepted as valid the standard academic criticisms of the version of originalism that became popular in the 1980s, which was based on the intentions of the framers and justified on grounds of popular sovereignty. Gradually I was moved in the direction of originalism, not by any external argument, but by my longstanding interest in and writings about the views of the founders. Eventually I adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed. In short, while I still accept the traditional criticisms of originalism, I do not think they apply to this modest version of originalism justified in this manner.

It is not my intention to completely explain this argument here. I do so elsewhere. I raise this issue as background to the following observation: Originalism (of any version) now confronts a new intellectual challenge: How to handle precedent. If the meaning of the Constitution should remain the same until it is properly changed, as originalists contend, suppose that the Supreme Court gets this meaning wrong, as they have so many times in the past (in part because they largely ignore original meaning)? Is a future Court free to disregard precedent whenever it concludes that the prior case got the text wrong? Like my BU colleague Gary Lawson, I am inclined to say "yes" but Larry Solum has recently made some powerful arguments in favor of the role of precedent for formalism that cause me to reserve judgment until I have given the matter more serious thought.

Recently, I moderated a panel on this topic at the annual meeting of the Federalist Society's Law Professor Division in Atlanta. On the panel was Larry Solum (San Diego)--to whose lengthy comments on Legal Theory Blog I previously linked--Rick Kay (UConn), Steve Calabresi (Northwestern), Keith Whittington (Princeton) and Mike Rappaport (San Diego). Now Mike has posted his views of the subject on The Right Coast. Larry Solum also recommends it and provides additional related links here. You should check it out as I predict that the proper relationship between precedent and originalism will be a subject of intellectual controversy and debate both among originalists and with their critics for some time to come.
Risk-aversion: See Tyler's post below, Lawrence Solum, and Tyler's Marginal Revolution post. Would immortals-by-lifespan who were not invulnerable be very, or infinitely, risk averse? Would they be very unambitious and inactive, since there would always be time for stuff later?

I'm not going to get into the genuine intellectual issues at stake, just going to enjoy the chance to survey some SF, fantasy, and related genres of fiction.

A correspondent of Solum's says that in 'contemporary vampire fiction' vampires are extremely risk-averse. I suppose that this refers to the Anne Rice novels, none of which I've read. But it does invite an obvious question about Buffy the Vampire Slayer, which was otherwise generally very good about imagining a world that made sense given its initial premisses. Why would any vampire hang out in Sunnydale? The Master was bound into the Hellmouth, and some of his servants were bound to him. Occasionally there was a vampire who wanted the glory of killing a Slayer. But then there were the countless, often nameless, vampires who just inhabited the town and treated it as their feeding ground-- until they got staked. The Hellmouth might have attracted demons, made it more likely that new vampires would be created, and generated generic magical weirdness. But wouldn't an even-remotely-rational vampire, even one who had been created in Sunnydale, move out of town immediately upon realizing that he or she was much more likely to get destroyed there than any other place in the world? Even the glory-hounds must have thought that the glory of killing a Slayer was inordinately valuable, given that they should have wanted to avoid any risk at all of getting slain. Instead, they continued to congregate in the least rational place for them to do so.

Robert Heinlein's Lazarus Long was not highly risk-averse-- but he did not know that he was going to turn out to be immortal, and by the time he knew, his habits of mind, his aversion to boredom, had been very well-set. Many of his fellow Howards did become very conservative and risk-averse, especially those who were born after the advent of rejuvenation and who therefore knew all along that they were functionally immortal.

The characters in Poul Anderson's Boat of a Million Years have interestingly varied reactions-- some but not others become extremely conservative for parts of their lifespan.

Characters in the Highlander universe of course face a somewhat different incentive structure. They are immortal-- but know that only one of them will be truly immortal, the last one to survive the last swordfight. That creates an incentive to engage in swordfights along the way, so as to remain in practice. [NB: Yes, there are also intermittent claims about each immortal 'gaining the power' of each other one he or she kills in combat-- but there's not a lot of consistency about just what that means, and whether that 'power' makes one more likely to win the next fight.] Accordingly, we again see variation in strategies adopted, from the strategy of spending centuries at a time on holy ground (off limits for swordfights), in order to protect one's immortal life, to the strategy of fighting all the time in order to hone skills and increase the chances of being the last survivor.

Isaac Asimov's Spacers, on the other hand, almost all become extremely risk-averse, even though they only hane lengthened lifespans rather than infinite ones.

[For those wondering about Tolkien's elves: they may well be a special case, as there are mixed suggestions about what happens when one is bodily slain, and some suggestions that they cannot be permanently bodily destroyed.]

Often even when some of the long-lifers/ immortals grow risk-averse, the narrative centers around the one(s) who doesn't/don't, and implicitly or explicitly condemns extreme risk-aversion. The wisdom gained over long life teaches that life has to be lived in order to be worth living... or something like that. But that might well tell us more about the demands of narrative than about what immortals would actually be like-- the risk-averse just aren't the most interesting people to tell most kinds of stories about...

UPDATE: Unsurprisingly, lots of e-mail on this one. Some clarifications:

1) Tolkien's elves can, of course, die of wounds or poison. They can also lose the will to live. But in either case they travel to the Halls of Mandos and reside there, apparently incarnate. It's left unclear whether doing so differs in any clear sense from simply travelling over the sea to Valinor; the long-term existence of an elf who is shot with an arrow may not be that different from the long-term existence of one who just sails away. Moreover, the texts that suggest life with Mandos is not embodied also suggest that it is possible to become re-embodied-- in a substantially identical body with the same name, spirit and memories. Both Finrod and Glorfindel apparently did so. Whether one re-embodies in Valinor or in Middle Earth, Elvish 'death' seems to be a lower-stakes affair than most other variants of the same.

2) Lazarus Long talks a lot about being risk-averse and a coward. What he means by this is that he's not stupid, that once he's decided on a course of action he does everything he can to make sure he survives the course of action, and that his primary goal in a fight is to be the one standing at the end. I stand by my characterization, though. He does not become what he calls 'sot in his ways,' as many other Howards do. He persists in living a life that has a great deal of risk, danger, and violence in it. He tries to make sure that he can beat the odds, or he rigs the game; but he insist on playing rather than sitting it out.

3) Vampires. The same person who wrote to Solum writes to me, asking to continue to remain anonymous (what, you think there's something embarrassing about spending one's time on this sort of thing??)
The specific works that came to mind when I was thinking of 'behind the scenes', 'incredibly risk averse' older vampires working through proxies were Blade II, Underworld, any of the Vampire: The Masquerade series of role-playing/computer games, and actually, Buffy. The vampires you mention as wandering around waiting to be staked are, for the most part, stupidly young, and pretty dumb, but there's a couple of immortals (vampires/demons, etc.) who do prefer not to be seen and work by proxies. (The "Senior Partners" of Wolfram & Hart in Angel, for instance.) It's a pretty common theme in vampire fiction: the really old guys stay in the castle/hideaway/headquarters whilst sending out minions because they're too scared of losing their eternal lives.

Anne Rice novels are a bit of an exception--even the very old vampires are pretty careless, and very few are manipulative, behind-the-scenes actors. However, the truly old ones are usually completely nuts anyway.
I also got the following entertaining missive from Gerry Canavan:
I've had the same
thoughts about the premise of the show for a long time, and have come up with a couple of theories:

1) The Hellmouth attracts them to such a degree that they stay DESPITE the apparent illogic of staying, ie, they'd rather be near the Hellmouth with Slayer than anywhere else without Slayer.

2) As we've learned from Angel and the episode "The Wish," there's a great deal more "Champions" than just the Slayer, from high-powered Vamps with Souls to just generic "White Hats" may well be that most places are also somewhat dangerous for vampires, shifting the odds back in Sunnydale's favor.

3) Eventually Buffy will die, and when that happens, the Hellmouth will be the place to be (see for instance the episode where Buffy came back from the dead). They may be betting that she'll die relatively soon (she is rather long-lived for a Slayer).

4) Your argument is fundamentally correct, and most vampires/demons DO stay away from Sunnydale. Corollary: the earth has many more demons than we might have thought. This seems to be the case, at least on Angel...Los Angeles seems to be crawling with as many or more demons/vampires than Sunnydale has.

More than vamps, what bothers me is the fact that all these apocalyptic demon cults would do a lot better if they planned their apocalypses in, say, Guam. They really should have done at least a few episodes where Buffy had to leave Sunnydale to fight big bad world-ending evils elsewhere. [JTL's note: the cult-plots typically do seem to depend on the Hellmouth, in a way that ordinary vampire feeding does not..]

5) There's some evidence on the show that knowledge of the Slayer isn't very well known among demons or vampires. Your powerful, very old Demons know the Slayer exists, but most vampires probably haven't ever heard of one, and many of those who do discount the Slayer as a kind of "vamp boogeyman" that doesn't really exist.

Buffy even sometimes meets Vamps in Sunnnydale who don't know there's such a thing as a Slayer (in, for instance, the Gift.)

This may also have something to do with the fact that she's so long-lived for a Slayer. Most vampires wouldn't even hear that she's in town before she bought it.

One other thing you might have mentioned: we know there's also a Hellmouth in Cleveland (also from "The Wish"), and it seems obvious that THAT is the place all smart demons should go. Downside: then they'd have to live in Cleveland. How does the rational demon handle THAT one?
Constitutional Law Stories: I just received in my mailbox a copy of Foundation Press's Constitutional Law Stories, edited by Michael Dorf of Columbia Law School. The book provides in-depth background on fifteen leading constitutional cases; I wrote the chapter on Lochner vs. New York. The other chapters, which I read in draft form, are excellent. The book is being marketed, as far as I know, primarily to law school professors, but it would make an excellent text for undergrad Con Law or Constitutional History classes. It's a worthy successor to Quarrels That Have Shaped the Constitution, a book last updated in 1987 and showing its age. And no, I'm not going to get any royalties from the book!
The dilemma of the immortal, continued: As you may recall from yesterday, I asked whether an immortal would necessarily be considered a murderer, given that accidents happen sooner or later. Drive on the roads for a few million years, and you are likely to run over a pedestrian. A related question is whether we should prohibit such actions, such as driving for millions of years, if our rights theory forbids the imposition of high levels of risk on other people. Conversely, if we do not consider the immortal driver a murderer, we might face counterexamples where we cannot stop the repeated application of risk, when stopping such risks is an intuitively appealing thing to do, read the original post for more detail. The underlying dilemma is that once we consider an intertemporal perspective, can a theory of rights have a firmly grounded and intuitive benchmark for what counts as "too much risk"? Here are a few threads of the responses I received:

1. Sasha Volokh suggests that rights should be defined in terms of how much risk is acceptable to impose on a person in a given time period, not how much risk can be imposed overall through a longer period of time. This, of course, suggests that would-be aggressors can get away with misdeeds by spreading out their aggression over time probabilistically, I don't think that Sasha would regard this possibility as a reductio on his view. An interesting question is whether the time dimension should be treated separately from the dimension of space, and if so why. What if you spread very small risks around a large amount of space, killing someone with near-certainty? Would this be less acceptable than spreading the risks through time?

2. Lawrence Solum raised the separate question of how risk-averse a would-be immortal would be or should be. If your life is eternal in the absence of accidents, perhaps you should never leave the house. I have offered separate comment on this interesting issue.

3. Daniel Davies (of CrookedTimber fame) wonders whether probabilistic concepts are always well-defined in the examples I consider. He cites the Austrians, and he could have cited the post-Keynesian economists as well.

4. Many of you, especially the lawyers, introduced realism and challenged the assumptions of the initial queries about automobile accidents and Russian roulette. On this I will defend the use of hypothetical philosophical thought experiments. They are supposed to be unrealistic and stark, to root out presuppositions in our moral intuitions that otherwise go unchallenged. Fully realistic examples, by their nature, often teach us fewer new things about how our intuitions work. One reader wrote to tell me that there are 13 auto-pedestrian fatalities every day, in case you are curious.

5. Economist and blogger Eric Rasmusen suggested that the correct answer could depend on how we discount time.

6. Many of you suggested that a rights theory had to be parasitic ultimately upon utilitarian concepts, and that we had to look to costs and benefits to determine what is an acceptable rights infringement. I agree with this conclusion, but two points: first, rights theory might end up falling off the map altogether. Second, utilitarianism has its own version of the problem. Should you join a firing squad to kill an innocent man, thinking that the fellow will die anyway, but you can donate your wages to charity? Derek Parfit multiplies related examples at length. So I am not willing to cite utilitarianism as a simple answer to the problem, rather it simply shifts the ground.

In sum, I still think that any rights theory is embarrassed when it tries to answer the question of how much risk is acceptable, and how we delineate "how much risk" one person is imposing on another. I've nonetheless learned a great deal from considering your responses.

Addendum: Notice that under many rights theories it matters whether one individual, spread through time, is the source of the risk, as opposed to "many drivers today" creating the same final risk to life. The idea that we have a rights violation when a given individual crosses a given threshold of risk gets us to that result. Some of you, of course, may view this as a reductio on a particular kind of rights theory. For a utilitarian, of course, risk is risk, no matter what the source, we need only look at outcomes.
Sympathetic plaintiff? George Lane, one of the plaintiffs in a state sovereign immunity vs. disabled rights law case that the Supreme Court just heard, has often been described as quite sympathetic and deserving of empathy. And surely there's something to that; but, on the other hand, as reader Robert Schwartz points out, there are other things that are less sympathetic about him. Here's an AP article:
Eight years ago, after an auto wreck left him unable to walk, George Lane crawled up two flights of stairs at the Polk County Courthouse to face reckless driving charges.

He says he will never forget the humiliation of having to drag his body up 30 tile steps. ''Two law enforcement officers and county officials stood at the top and laughed,'' he says. . . .

Lane, 40, has been arrested more than 30 times on charges that include drunken driving, drugs and traffic offenses. No longer in a wheelchair, Lane now walks with an artificial leg inside Brushy Mountain Correctional Complex, where he was sent for slamming a fellow prisoner in the head with a crutch at a county jail. . . .

Courthouse employees who witnessed Lane's crawl in Benton, about 40 miles from Chattanooga, say that no one laughed and that he refused offers of help. In fact, Lane declined a judge's offer to move the hearing to a ground-floor room.

When Lane chose not to climb the stairs a second time, he was arrested for failure to appear in court.

Two years after Lane's crawl, Polk County spent $108,000 to install an elevator at the courthouse. . . .

Lane was maimed in an auto accident that killed a woman; he was driving on the wrong side of the road. The reckless driving case happened four months later.

Lane's case has been joined by a perhaps more sympathetic plaintiff: Beverly Jones, a court reporter who says she cannot pursue her livelihood in at least 25 courthouses in Tennessee because she uses a wheelchair.
This doesn't tell us what the right answer should be in Lane's case, of course. To the extent that there are new rules to be made with an eye towards the practical effects of the decision (something that courts sometimes do have to do), the Court should try to consider the practical effects on the run of cases, and not the particular and perhaps unusual attributes of this plaintiff. But this does, I think, bear on the "George Lane, super-sympathetic plaintiff" theory.

UPDATE: D'oh! When I first posted this, I credited the article to the Miami Herald, even though it was an AP article that just ran in the Herald (presumably among many other papers). My mistake; I usually try to credit AP stories to the AP, but this time I just missed it.
YUCCA UH-OH: Based upon this report, it seems the federal government's plans to dispose of (read: store for a really, really, really long time) nuclear waste in Yucca Mountain in Nevada may be in trouble. Yesterday's oral argument in Nevada's suit challenging the plan seems not to have gone well for the federal government's attorneys. Specifically, judges seemed sympathetic to Nevada's claim that the environmental safeguards did not comply with the relevant statutory requirements. For more background on the case, see here.
[Note: Post edited to correct minor error.]
"DEANISMS" Slate has "Bushisms," which have been ably critiqued by our own Eugene Volokh (see, e.g., here and here). Now NRO has "Deanisms" -- but they're not quite the same thing. Whereas the former are intended to portray the President as inarticulate or uneducated, it seems the latter will portray Dean as a hothead. Of course, Dean's made stupid gaffes too.
Who's the Livy? The Sallust? From the New York Times:
He said he was fired by ABC in 2002 after two seasons as a commentator on "Monday Night Football" when the network had a chance to hire John Madden. Mr. Miller's reviews had been mixed. He said he enjoyed being a sports commentator and had no ill will toward ABC. "As soon as Madden left Fox, I pretty much knew I was going to be whacked," he said. "Here was Madden, the Pliny the Elder of football announcers. And they were going to stay with the kid?"
Friedrich Hayek on gay marriage: Here is a link to a recent short piece by Virginia Postrel. My personal opinion, consistent with Virginia's presentation, is that gay relationships are indeed an evolved part of a voluntary market order, and also deserving of various legal protections. A Hayekian therefore can without contradiction embrace the idea of gay marriage, although admittedly simply citing Hayek still leaves a number of gaps in the argument for legal gay marriage. See also Virginia's longer piece on Hayek and the more general importance of his thought.
New law journal: Yesterday Mario Rizzo sent me the following, which I pass along for your interest:

"An exciting new journal has been founded at the NYU Law School. It will be called, The NYU Journal of Law and Liberty. Its mission is to publish articles that develop classical liberal approaches to legal issues as well as those that provide thoughtful criticisms of these approaches. The first issue (Fall, 2004) will feature articles on the legal theories of Friedrich A. Hayek. The journal will be published by the NYU Law School and edited, as is the custom with law reviews, by law students. It will be independent of any external organization or society.
I am enthusiastic about the academic potential of this endeavor (and about the greater balance it will give to scholarship at NYU). Accordingly, I shall be assisting the editors in any useful way I can.
I am writing to you with two purposes in mind: first, simply to inform you about this new journal; and, secondly, to urge you to consider writing articles for it."

Update: I've been overwhelmed by responses to my query from yesterday as to whether an immortal necessarily is a murderer with a probability approaching one, given the risk of accidents. Thank you all for writing, I can't thank you all individually and respond to each, I will distill some of the responses once they stop arriving.

On another matter from yesterday, I would like to speak up for David Bernstein. I always enjoy reading his posts on Israel, Judaism, American Jews, and related topics. He also has altered my thinking on a number of topics, one of which is the Israeli endeavor to build a fence. The whole point of blogging is to give people what you really care about, so I would urge David not to let himself be discouraged by the (few) critics.

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.