Saturday, July 17, 2004

SPEAK TO ME: My 15-year-old daughter is off studying Russian at a language camp in Minnesota for a month. To which people generally ask incredulously: "Why Russian?" Last year, when she took French at Pasadena Community College, we got the same reaction: "Why French? Why not Spanish? Isn't that more useful around here?"

Well, no. What's useful in Los Angeles, just like everywhere else in the country, is English. I suppose if I were a contractor rounding up day laborers every morning, and wanted my daughter to learn the family business, Spanish would be invaluable. But this is not the case.

I do speak enough Spanish to communicate with the cleaning lady, just from living in the Hispanic barrio of Echo Park for six years. This is sort of useful, but not vital.

Since 1066, educated English speakers have studied French. Even if we don't speak it (I certainly don't, although I took French for three years in high school), it gives us a deeper understanding of our own language, and prevents embarrassing gaffes like "I just love that Why-vees Saint Laurent!" Which some trophy wife actually said to me at a fashion show once.

Of course, studying any foreign language broadens the mind, which is why I've never understood people who keep demanding "Why Russian?" (The answer is that my daughter likes Russian literature and culture, and also has a Russian friend here in L.A. she can practice speaking Russian with.)

In Southern California, though, it's assumed that naturally most students should study Spanish as a foreign language, so that's all that many schools offer. The fact that in many schools the majority of students already speak Spanish at home, and therefore would find it far more useful to learn French (or another foreign language), never seems to have occurred to public school officials.

I can't access the horribly annoying L.A. Times archives via Google, but the paper ran an excellent July 2 story about all this titled Students Ask For More Foreign Language Choices, and you guys all have Lexis, right?

P.S. French can actually be handy, even here in Southern California. During the L.A. bus strike, I often gave one of my daughter's classmates from her community college French class, a 19-year-old girl from Guadalajara named Veronica, a lift home. Veronica works in the corner grocery on weekends, and told us she often gets into language trouble with customers.

"I was born here!" they'd say angrily, if she spoke to them in Spanish. "Speak English!"

So then she'd try English with the next customer, who'd snap, "Who are you trying to pretend to be? Speak Spanish!"

I suggested she start speaking to everyone in French. Then they can all feel equally offended.
The Engligh Language Needs A Word

for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency. You can see it in politics whenever there is a change in power. Advocates from the party that loses power switch to the standard what-you-say-when-you're-the-opposition arguments, and those from the party that is now in power switch to the standard what-you-say-when-you're-in-power arguments. You never have to wait very long before one side tries to outfox the other by trotting out what their opponents said back before the power switch: "Aha!" an advocate for one side will say, "But back in 199_, you took the opposite position!" Well, of course: back then, everyone took the opposite position. I don't know of a word for this particular phenomemon, but I think we need one.

Friday, July 16, 2004

Inside Base-ball

Noam Scheiber is clearly right that it's a bad sign for Bush that he's still struggling to shore up and rally the conservative base (posts here and here). I think his characterization of the political tactics and stakes are all just right. But there's something odd in his diagnosis of how relations between Bush and conservatives have come to this pass.

Rove's grand plan was to spend the first three years of Bush's term stroking conservatives' erogenous zones--lots of tax cuts, conservative judges, regulatory rollbacks, and religiously hued social policy (the administration's marriage initiative, its efforts to restrict access to abortion, its retrograde stem cell research policies, etc.). The idea behind this stuff was that it would give Bush the political capital to tack leftward during his re-election campaign. But a funny thing happened on the way to the center: Rove discovered that conservatives don't just want to win on some issues, they want to win on every issue. Conservatives went ballistic over last year's Medicare prescription drug bill, over additional money for the reconstruction of Iraq, over the deficit and the failure to control spending generally, and over the administration's perceived indifference to gay marriage. Equally maddening to conservatives were proposals like a manned mission to Mars and immigration reform.

I suppose that every committed activist "wants to win on every issue." But that doesn't mean that conservatives unreasonably expect to win on every issue.

Noam's a smart analyst of party politics; does he really think it's surprising that conservatives didn't say, "Well, yeah, we lost on the 400-billion dollar entitlement that was really a 550-billion dollar entitlement, but we won on rolling back the OSHA ergonomic workplace regulations, so we can't complain"? The marriage initiative is small potatoes. The anti-abortion efforts are (necessarily) restricted to marginal and overseas cases, as long as Roe remains good law, so it's no surprise that social conservatives don't feel much placated by them. (NB: I don't approve of those efforts, but the fact that I don't like them doesn't mean that pro-lifers have any reason to be satisfied with them.) The tax cuts seem a lot less appealing when combined with the farm bill, the Mars mission, the drug benefit, the costs of the wars, and the general explosion in spending and deficits; very few conservatives outside a small group of supply-siders think it makes sense to say "Well, we've lost big-time on spending and deficits, but we won on taxes, so that's OK."

Moreover, it's not as though Bush has vetoed some spending bills and conservatives are saying "more!" He's vetoed none.

Protectionism doesn't appear on Noam's list, but it matters, too.

As far as the convention goes:

House conservatives are demanding that a prominent pro-life speaker be given a prime-time slot. And this, mind you, is after the White House had spent much of the campaign reaching out to conservatives, as that Post article pointed out yesterday. The convention was really the one campaign event (albeit a big one) the Bushies wanted to put a moderate face on, and even that won't fly.

I want to emphasize: I'm strongly pro-choice. But, c'mon. Would it really be nuts for social conservatives to want one prime-time pro-life speaker? Does it necessarily make for an immoderate convention to have any social conservatives in evidence-- where "social conservative" is defined, not by a fringe position like supporting sodomy laws or stoning for adultery, but by a position that (depending on how the question is worded) between a third and nearly half of voters share?

(In fact, it's not the case that there are no pro-life speakers. Both John McCain and Zell Miller are pro-life, though one's a Democrat and one is little-loved by social conservatives. But Noam seems to endorse the thought that demanding even one pro-life speaker would mean that the convention couldn't have a "moderate face.")


Bruce Bartlett reminds me via e-mail that

Even we [supply-siders] aren't happy with Bush. His tax cuts conformed to supply-side principles only in a small way. Most of the revenue was wasted on give-away tax cuts, like tax rebates and child credits, with no supply-side effect.

With all the revenue that was used over the last 3 years on various tax cuts, we could have completely reformed the tax system and probably had money left over to reform Social Security, too. I think most supply-siders view the tax cuts as wasted opportunities. And what was good in them will

probably be reversed when, inevitably, taxes are raised to pay for all the spending Bush has initiated or acquiesced to.

Indeed. Serious tax-cutters want real tax cuts, not intertemporal shifts in the tax burden.


Eugene's observation the other day that, contrary to current conventional p.c. wisdom, rape is a crime of sex as well as violence, reminded me of the last time I got into an argument about this. As Eugene pointed out, statistics show that rape is highest among girls and women in their late teens and early '20s — e.g., their years of prime sexual attractiveness. But for some reason, it's not considered polite to acknowledge this common sense reality. "Eight-month-old babies and 80-year-old women get raped," is the approved feminist line, which is true, they do; but these situations are freakishly horrible rather than horribly common.

A few months ago I found myself at lunch with a couple of women my age who kept insisting that (a) rape is purely a crime of violence, not sex, and (b) since I write for Penthouse sometimes, I'm part of the problem, because pornography contributes to a rape culture by sexually objectifying women. (Uh, I feel I should point out here that I've never written porn for Penthouse, just pristine articles about Hollywood topics that could run in any PG-rated publication.) The logical retort — that if rape is only a crime of violence, not sex, then what does sexually objectifying women have to do with rape? — only occurred to me once I was driving home.

In my anecdotal experience, if you get a group of women together trading sexual assault war stories, around one-third to one-half will have encountered some kind of violent and forced physical attention (although luckily most are interrupted before being completed) — an attack in the subway, in the parking lot, on the front porch, even in the living room when the door was foolishly opened to a stranger. In my case, it was an intruder who jumped out of the closet at 4 a.m. when I suddenly woke up and realized I'd better get out of the room. After a tussle and some screaming, he ran out, mission unaccomplished.

These were the tales told last time I talked about this, in a self-defense class I took just after Sept. 11 taught by a former Navy SEAL. (Actually, he disliked the term "self-defense" and called it assault training. It was fun and we learned a lot: we spent two nights acting out various scenarios in an underground parking garage from 9 p.m. to 5 a.m.) Sept. 11 was the reason most of us took the class, not our own personal histories, because we didn't like the thought of not knowing how to put up a fight if faced with boxcutter-armed terrorists. But here's the thing: All our sexual assault incidents had taken place years ago, when we were still in our 20s. No problems recently!

I don't think that all unwanted attention is a form of rape, but look, this stuff exists on a continuum, and just as hoots and catcalls taper off it makes sense that rape does too. I used to resent the unwritten law, made clear to me practically every time I left the house, that nubile young women are not allowed to walk down the street without displaying a cheerfully vapid, "And Wendy Has Wings To Fly" expression of sexual availability. "Smile!" men would demand if I dared to look lost in thought. "It can't be that bad!" I don't hear that anymore. I guess they figure it is that bad.


Dan Drezner and Bruce Bartlett and Matthew Yglesias all enthuse about the idea of a Presidential challenger naming a shadow cabinet. Matt identifies some disadvantages:

The first is simply that the vetting and decision-making process would distract key campaign staff at a moment when they have the non-trivial task of running a presidential campaign. The other is that presumably anyone you would appoint would be expected to participate in the campaign, complete with harsh denunciations of the other guys, which could make the confirmation process much harder down the road.

and Dan others:

I can see downsides to this strategy — in particular, such an announcement increases the number of official mouthpieces — which increases the likelihood of one of them committing a gaffe that saps time and energy from Kerry.

The idea has always seemed like a nonstarter to me, for three major reasons, none of which Matt or Dan precisely touches on.

1) Naming a cabinet inevitably involves lots of disappointment among one's allies, supporters, and subordinates. There are many more people on a campaign advisory staff who imagine themselves getting cabinet positions, or at least imagine themselves in the running for one such a position, than there are actual cabinet positions. This is salutary, from the candidate's prspective. It provides a lot of very smart and/or politically important people with a spur to help the campaign as much as possible. Naming a shadow cabinet early dampens the enthusiasm of all those not selected who would otherwise have imagined themselves as possible choices, and might even dampen a certain competitive energy among those tapped. I think campaigns tend to benefit from a dynamic of advisors and supporters striving for future position by impressing the candidate and the voters. Of course, those tapped would then have a more-focused incentive to campaign all-out; they'd want their candidate to win in order to get their appointments. But there's no such countervailing influence for all those who weren't picked. The desire for recognition, status, prestige, and power is a very important motivator, and an especially important one for political animals. It's a desire that can create trouble in lots of circumstances. But, from the candidate's perspective, the campaign isn't really such a time. It's entirely in the candidate's interest to have all those possible future cabinet officials striving, and imagining their possible reward.

Relatedly, all those not chosen become possible sources for backbiting in the press. But probably even more important than the disappointed expectations of the possible cabinet officers themselves are the disappointed expectations of the factions they represent. Naming a cabinet is usually disappoints a lot more factions of one's base than it pleases-- again, because everyone can imagine their own preferred cabinet before it's announced, and there are a lot fewer actual positions than dreamed-of positions. It's one of the trickiest moments a president-elect or new president faces in terms of navigating among competing groups of his supporters-- and that's even after he's gained the prestige associated with being the President-elect or the President. Democrats have been willing to forgo factional fighting over the platform this year, but the platform doesn't mean anything anyways. Imagine the usual factional energy that gets channeled into platform fights applied to something that actually matters, personnel. If I were a candidate I'd want none of it.

2) The first worry is about the disadvantages of dealing with one's supporters and base after having gotten too specific. The second is about the disadvantages of dealing with the general voting public after having gotten too specific. Naming a cabinet puts a clear ideological or intellectual stamp on a candidate, and also says something specific about which interest groups the candidate considers priorities. None of that is to the advantage of a presidential challenger. The challenger wants to be the one who all the voters can project their hopes and wishes for change onto. The challenger's job is to keep the focus on the Need for Change, on the reasons why the incumbent should not survive our system's equivalent of a vote of confidence. Naming a shadow cabinet tends to distract from the referendum on the incumbent that a challenger has every incentive to insist upon.

3) Every shadow-cabinet nominee is a scandal in the making. This isn't just about gaffes. Cabinet-selection often turns up significant embarrassments and scandals (legitimate or otherwise): Zoe Baird, Kimba Wood, John Tower, Linda Chavez. The current schedule concentrates these in the December-March after a presidential election-- when the President-elect or new President is still mid-honeymoon, and when they'll all be safely forgotten about before the next election. The incumbent cabinet is made up of people who survived the running of the nomination gantlet. The major embarrassments have been found out and discarded three-and-a-half years before. They're safe. Putting a dozen new names up, however, makes a dozen new targets for oppo research and muckrakers-- a dozen new opportunities for major embarrassment, for shifting the story from the incumbent's performance to a scandal on the challenger's side. What's worse, any such scandal will become the kernel of a "look how inexperienced and amateurish the challenger and his team are"-- a story that always gets told in the early months of an administration, but that the challenger really needs to avoid in the summer and fall before the election.

There are very occasional, very special cases. It was clearly to W's advantage to de facto name Colin Powell as his Secretary of State nominee before the election. But that was partly because Powell was himself a blank slate that lots of people could project their wishes onto. (Tough military man! Reassuring pro-choice moderate! Figure for racial progress! Fought Clinton on gays in the military! Opposed the [first] Iraq War! Won the [first] Iraq War! etc, etc.) And that precedent is hardly a reassuring one anyways. If I were a candidate, I'd look at the Powell precedent and think, "I don't want to spend my term in office with a cabinet secretary who thinks he's got an electoral mandate all his own, who will spend his time glorifying himself to Bob Woodward instead of ever getting on an airplane to do his job, who will be convinced that he's more important than the administration as a whole." At the end of the day I think Powell's been a pretty mediocre Secretary of State on anyone's measure other than his own; neither the President nor his critics have any real reason to be glad Powell's been in office. Maybe Powell would have done a better job if he hadn't had the inflated sense of self-importance that came with being named in advance; or, maybe, in January of 2001 W would have had the freedom of maneuver to pick a better nominee. The cases when naming a shadow minister might be to a challenger's electoral advantage might also turn out the be precisely the cases in which it'd be to the disadvantage of the new president's ability to govern effectively. So I'd be wary even of the special cases. But the strategy of naming a whole bunch of personnel nominations seems to me obviously a mistake; it runs contrary to every incentive a challenger faces.

Family vacation:

I'm off on a family vacation from today until Sunday the 25th, and won't be regularly blogging or even checking my e-mail. Please hold any messages you want to send me until Monday the 26th; if they're sent before then, they're likely to get lost among all the other stuff that will pile up.

The blog, of course, will still be active -- the other bloggers are around, and, as I mentioned a few minutes ago, Cathy Seipp and Neal Whitman will also be visiting.


I'm very pleased to say that Cathy Seipp (Cathy's World) and Neal Whitman (Agoraphilia) have agreed to guest-blog here alongside the other Conspirators from today until Sunday the 25th. Cathy and Neal aren't lawyers, economists, or political scientists like the rest of the (nonanonymous) Conspirators -- Cathy is a journalist and Neal is a linguist -- so their posts may be somewhat different from our norm (if we have a norm); I hope you enjoy their work as much as I do.

"Terror in the Skies" and the Power of the Blogosphere:

Anyone want to place bets on whether the pressure of the blogosphere will shed light on the Terror in the Skies article I linked to earlier today?

Instapundit linked to it today at 5:22 pm, and it has now reached Andrew Sullivan, Little Green Footballs, Hugh Hewitt, here, and no doubt lots and lots of other blogs. As you might expect, there seems to be a lot of interest in the story. People are thinking: Is it true, in whole or in part? Why haven't major newspapers and TV picked up on it? My guess is that the blogosphere won't let up until there are some answers, and that the pressure will yield some answers sooner rather than later. Stay tuned.

UPDATE: Michelle Malkin has apparent confirmation of the basic outline of the story. Meanwhile, Jeff the Baptist wonders if the men were simply praying.

Thursday, July 15, 2004

Must Reading:

I'm very pleased that the Conspiracy has made it as one of the "Must Reading" blogs onto a new list of law-related Weblogs ("the EDDix 50"). Check out the other law blogs as well, especially if you're a lawyer — some of them seem to have specialty focuses that you might find useful.

"A dangerous time to be a Jew,"

in Britain at least — that's the title of a New Statesman article by Simon Sebag Montefiore (who is also the author of the recent Stalin: The Court of the Red Tsar. I can't speak to whether this is accurate, but a friend of mine whose judgment I trust passed it along, so I thought I'd pass it along further. And it's definitely quite readable.

Judge Wilkerson's anti-gay letter:

Daniel Strahan claims that the spelling errors in Judge Wilkerson's "gays and lesbians should be put in some type of a mental institute" letter were the fault of the newspaper. Mr. Strahan assures me that he saw the original letter, the text of which he put here, and those spelling errors (marked with "[sic]"'s in the Mississippi Supreme Court decision) were not in the original.

If that is indeed the case, I withdraw the aspersions I cast on his spelling. I reaffirm the aspersions I cast on the substance of the argument, as well as on the style (including the capitalization).


A reader says that suspending a driver's license because the driver told his doctor that he drank over a six-pack of beer a day "[s]ounds like the movie 'Minority Report.'" "[B]ecause you like to have a few beers, even a few too many beers, you're considered guilty of driving drunk before the fact?" I'm not sure the state is right to suspend the license in that situation, but I think it's important to keep a sense of perspective here.

What troubles most people about the "Minority Report" situation, in which people are prosecuted for murder because "precogs" (people with special powers of precognition) say that they're going to commit murder, is that someone is prosecuted because of what they were supposedly going to do, not because of what they actually did. Even that isn't necessarily troubling: I think we're quite right to prosecute someone for attempting to commit a crime, even if they don't take the final step (which, if I recall correctly, is what happened in at least one of the incidents depicted in the movie).

Sure, there's some uncertainty about whether the person was really going to go through with the crime. But if the police catch someone sitting at his window pointing a rifle at someone, with a finger on the trigger, and then an investigation shows that the person was almost certainly planning to kill the person, I think prosecuting the person for attempted murder is just fine. Some amount of "precognition" is a normal part of the legal system.

Likewise, say that someone goes to the doctor's office and says "I'm having these seizures every day or two; I just black out for a few seconds." It may be "precognition" that the person might well black out while driving, but it's a pretty sensible precognition. Similarly, if someone fails a driver's test, it's "precognition" that the person will likely be a bad driver, but it's again a pretty sensible precognition. Nor is it "consider[ing the person] guilty of driving [recklessly] before the fact." No-one is being found guilty, or sent to jail. Rather, the person is being judged to be the sort of driver who ought not be given a license.

If you think everyone should have a right to drive, at least until they commit a serious traffic offense, then you'd think that both of these people should be on the road until they're caught doing something dangerous. But if you think that driving on the public roads is something that should be licensed, and licenses should be given only to those who the licensing authorities think will be safe drivers (though with the authorities' discretion suitably cabined, so they can't just refuse licenses to people they don't like), then "precognition" is precisely what you're endorsing: You're calling for a judgment, before the person kills someone or does something else that seems likely to kill someone, that the person is likely an unsafe driver.

One could, of course, argue that having over a six-pack a day (as opposed to having daily seizures) might not make the person that dangerous a driver. Among other things, if a 175-lb. man drinks a beer every two hours, for a total of 9 hours in a 16-hour stretch, he will generally not be anywhere near drunk enough to be over the legal limit at any time during that stretch. Likewise, if he only drinks at home after work, and doesn't drive until he gets up in the morning, he may likewise be OK (though if he drinks enough right before bed, he might wake up drunk). So it's hard to tell how dangerous he will be.

But the principle of driver's licensing -- which is definitely not the principle of criminal punishments, quite a different matter from licensing schemes -- is precisely that the licensing authorities should exercise some "precognition" (albeit guided and not entirely discretionary) about who is likely to be a safe enough driver and who isn't. Maybe we should change principles, or maybe the principle should cut in favor of allowing the person to keep his license here. But analogizing to "Minority Report"'s use of precognition for criminal punishment is quite a stretch; and the analogy is just as apt when a license is denied when the person fails a test, or is found to be prone to frequent seizures.

Airplane Hijacking Dry Runs?:

I'm not sure what to make of this story, as I am unfamiliar with its source. Maybe it's bogus, or much ado about nothing. On the other hand, maybe it's not. Thanks to Instapundit for the link.

Defense of Marriage Act:

A reader points out that the federal DOMA does two things -- it essentially (1) says that states need not recognize out-of-state same-sex marriages, and (2) says that the federal government does not recognize out-of-state same-sex marriages. The first provision, of course, is said to be an exercise of Congress's power under the Full Faith and Credit Clause ("Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.").

But, my reader asks, what's the Constitutional authorization for the second provision? Where does Congress get the power to say which marriages the federal government will recognize?

Well, recall that the federal government doesn't just recognize marriages for their own sake -- it recognizes marriages for specific purposes. Federal tax law is influenced by whether people are married. So is federal immigration law, social security law, and a wide range of other laws. (Copyright law, for instance, provides that an author's surviving spouse inherits the author's right to terminate certain copyright grants; this provision exists independently of state wills and trusts law.)

The income tax is authorized under the "lay taxes" portion of the General Welfare Clause (with the Sixteenth Amendment eliminating any Direct Taxes Clause constraints). This authorization includes the authorization to decide who is entitled to certain treatment under the tax laws (e.g., the right to file jointly). The immigration law is authorized by the Naturalization Clause; so is the provision that lets spouses immigrate; so is the definition of spouse that the federal government selects.

Historically, federal law has generally relied on state law definitions of various matters, such as marriage. But there's no constitutional mandate to do that, and to treat all marriages recognized by state law equally. The federal government might, for instance, choose to treat only marriages that have lasted longer than a year as marriages, or for that matter only first marriages and not remarriages following divorce (though I doubt the government would do that). If that's what the government is doing for tax or immigration or copyright purposes, it's within the government's tax, immigration, and copyright powers.

Now one could of course argue that not recognizing homosexual marriages violates homosexuals' individual rights (under the equal protection component of the Due Process Clause) -- that's the argument that carried the day in the Massachusetts Supreme Judicial Court's Goodridge case, as to state marriage law under the Massachusetts Constitution. And one could also argue that the first part of DOMA, which governs state recognition of out-of-state marriages, violates the Full Faith and Credit Clause. Those are separate arguments, which I won't confront in this post (nor in the next few days, since I'm about to leave on vacation, so please don't e-mail me about them).

But there is no problem finding federal powers authorizing a federal definition of marriage -- those would be the same federal powers that authorize the underlying federal law (tax law, immigration law, etc.) to which the definition of marriage would be relevant.

Law and literature query:

For my law and literature class I would like to use an autobiography of a lawyer, judge, or other prominent legal figure. The standards are the following: 1) It must be well written and broadly literary, 2) It cannot be longer than four or five hundred pages, 3)It must be at least moderately entertaining to read, and 4)It should somehow be insightful about the law. I also would prefer something with a slightly philosophical tinge, though we need not go overboard here.

Please send along any good ideas you have; I believe this is easier than finding a truly prominent Spanish scientist.

If you are curious, so far I am planning on using the following for the coming spring:

Henry James, The Aspern Papers; The Bible, selections; Victor Hugo, Les Miserables; Tim O'Brien, Going After Cacciato; Tolstoy's "Hadji Murad"; Franz Kafka, Assorted; Herman Melville, Assorted; Plato, dialogues concerning the trial of Socrates; Chinua Achebe, Things Fall Apart, and Salman Rushdie, Midnight's Children.

I may ask for some broader help suggestions later, but for now please send only autobiography suggestions.

Interesting story:

Read Tim Wise passes along this; I'm not sure what the legally right answer is (it turns a lot on administrative law and due process questions related to revocation of generally available licenses, which isn't exactly in my field), but it seems worth thinking about:

A man who told doctors at a hospital that he drinks more than a six-pack of beer per day is now fighting to get his driver's license back because the physicians apparently reported him to the state.

Keith Emerich, 44, said Tuesday he disclosed his drinking habit in February to doctors who were treating him for an irregular heartbeat.

"I told them it was over a six-pack a day. . . ." . . .

Emerich received a notice from the Pennsylvania Department of Transportation in April that his license was being recalled effective May 6 for medical reasons related to substance abuse. He has petitioned a judge to restore the license, and a hearing has been set for July 29.

A state law dating back to the 1960s requires doctors to report any physical or mental impairments in patients that could compromise their ability to drive safely, PennDOT spokeswoman Joan Nissley said. . . . The law requires an indefinite recall of the license until the driver can prove that he is competent enough to drive. . . .

Aside from a drunken-driving conviction when he was 21, Emerich, a pressman at a local print shop who lives alone, said he has a clean driving record and doesn't drink and drive. . . .

"They want me to go to counseling to prove that I'm OK," Emerich said. . . .

Pennsylvania's transportation agency receives about 40,000 medical reports and recalls 5,000 to 6,000 licenses a year, but does not keep any statistics on its reasons for doing so, Nissley said. . . . .

Pennsylvania is one of six states that require doctors to report motorists with medical conditions that could affect their driving ability to state licensing agencies, according to the American Association of Motor Vehicle Administrators.

The other states are California, Delaware, Oregon, Nevada, and New Jersey. All other states and the District of Columbia allow physicians to submit reports on a voluntary basis. . . .

Oh, boy.

Via Brian Doherty, Liberty Magazine's R.W. Bradford provides a detailed, morbidly fascinating, and ultimately depressing account of the Libertarian Party presidential nominating convention... and reassures me in my decision to look elsewhere than the LP for a presidential candidate this year.

"Militant" Militancy:

The New York Times: "In Israeli cities like Tel Aviv and Haifa, it is possible now to forget about the conflict, at least for a time. But on this side of the barrier, the conflict suffuses life. In June, Israeli forces regularly raided Jenin by night, arresting or killing young men the Army accused of being militants."

The Times, along with most media outlets, refuses to refer to any Palestinian, even a suicide murderer, as a "terrorist." That in itself is a highly questionable judgment. But the last sentence of the quoted paragraph, suggests that Israel also refuses to refer to Palestinians it arrests as being anything other than "militants," which is simply inaccurate. Israel doesn't accuse the young men it arrests of being militants, it accuses them of being terrorists. It hardly seems too much to ask that political correctness regarding Palestinian terrorism be suspended when a newspaper is reporting third parties' views.

Latest Illinois GOP Senate Rumor:

Ted Nugent. Yes, really.

Thief Apprehended:

Citizens of McLean, Virginia can relax. A local thief, who had stolen lawn ornaments from several properties in McLean and was captured in the act on video tape last week, has finally been caught. No charges are going to be filed against the bandit, who goes by the name "Magnum," presumably because Magnum is a Labrador retriever. Or maybe because no one should have a ceramic chipmunk on their lawn in the first place.

Cathy Young on the Texas Republicans' "Christian Nation" plank:

An excellent column. An excerpt, though there's a lot more good stuff there:

On Hannity & Colmes, Gallagher asserted that the plank was a simple statement of a numerical fact. "If a neighborhood had 82 percent of the population that was Italian or a town had 82 percent of the population that was Polish, we'd call those communities Italian or Polish towns. So why do liberals have such a knee-jerk reaction when anybody dares to suggest that with 82 percent of the population being Christian -- we are, in fact, a Christian nation?"

Well, for one, if a town council passed a resolution affirming that it was an Italian or Polish town, there'd be a strong reaction, too. Such a resolution would be perceived as a clear statement that members of other ethnic groups are not welcome.

If we're going by the numbers, why not have a party platform asserting that the United States is "a white nation"? After all, 77 percent of Americans are white.

Summer Reruns: Chris Isaak and the Silvertones (and more): Saw Chris Isaak and the Silvertones tonight in Boston at the Fleet Pavilion. It was a great concert, though the sound system for the vocals was pretty harsh. Anyhow, here is what I wrote about last summer's concert at Foxwoods:

When is Real Faux?

Which was actually a follow up to this previous post that you might want to read first:

When is Faux Real?

While I am rerunning old posts, searching for these two I ran across this reaction to seeing The Producers for the first time:

Springtime for Hitler:

Update: WE'RE NOT NAFF!: Normally I do not respond to ad hominem blog posts, but I found this one particularly amusing:

The Naffness of Randy Barnett and the Volokh Conspiracy

I have long been a reader of the Volokh Conspiracy, a blog writen [sic] by lawyers and political theorists. I have always found it a bit off-putting, although I could never exactly think why. Now I now [sic]. It is written by people--some of whom are friends of mine--who are incurably and unutterably "naff"--to use one of my favorite new British terms. Just consider the following entry:

Chris Isaak and the Silvertones (and more):

Saw Chris Isaak and the Silvertones tonight in Boston at the Fleet Pavilion...
Who could take seriously a person or indeed a blog with a comment like that. It calls to mind a guy sitting in his Honda Accord listening to the local AM station, whistling along to America's "Been to the desert with a horse with no name.
We here at the Volokh Conspiracy wear our naffness as a badge of honor (though I have not polled my fellow Conspirators on this), as I imagine do many of our readers. And we can guess that the politics of those who find the naffness of others "a bit off-putting" involves their superior concern for "the people."

Update: REVENGE OF THE NAFFS! I neglected yesterday to put a link to Dave Gwydion's A Man Abroad, the blog that posted the previous comment on "naffness." When I went to do so today, I discovered that The Naffness of Randy Barnett and the Volokh Conspiracy had been taken down. What do you suppose this means? Perhaps Gwydion--a self-described "American Academic on Sabbatical in London"--was embarrassed by his own display of anti-naff naffness. This naff business is very tricky, as it has always been uncool to proclaim how cool one is, including by deriding the uncoolness--I mean naffness--of others.

Wednesday, July 14, 2004

All constitutional lawyers agree

that the Defense of Marriage Act is unconstitutional. So said Sen. Rick Santorum on the NewsHour (see here, roughly at the 9 minute mark), explaining why the Federal Marriage Amendment is needed:

The Supreme Court case in Lawrence versus Texas last year was very clear. The majority opinion was very clear. It signaled clearly that the Defense of Marriage Act was not going to stand. Every left, right, and middle constitutional lawyer in this country have all said that as a result of the Lawrence decision, the Defense of Marriage Act will not stand.

Yesterday on CNN, Sen. Hatch likewise said "most likely all constitutional authorities say the Defense of Marriage Act will be ruled unconstitutional" (I'm quoting a transcript on this).

Now I don't want to quibble with the "every . . . constitutional lawyer" — Sen. Santorum is entitled to a bit of hyperbole. But even taking that into account, it semes to me the Senator is just wrong. The Court did not clearly say or signal that DOMA was unconstitutional; the Court held that criminalizing sexual conduct violated people's liberty, not that homosexual couples were entitled to equal access to the benefits flowing from marriage. And my sense is that most constitutional scholars (not all, but most) that have considered the issue believe DOMA would be upheld. Indeed, some people, mostly liberals, have argued that DOMA is unconstitutional — but not remotely the broad swath that Santorum is suggesting.

One can plausibly argue that courts might strike down DOMA. I doubt that they will, but if one thinks that would be a really awful result, one could argue that we should preempt it now, rather than waiting for later. Of course, if one's concern is really about courts forcing the pro-gay-marriage position on states that oppose gay marriage, the solution would be an amendment that constitutionalizes DOMA. There'd be no need for an amendment that would force the anti-gay-marriage position on states that support gay marriage (which is what the FMA would do).

But in any event it seems to me incorrect to argue that somehow the courts' striking down DOMA is a foregone conclusion — and especially to argue that all or nearly all constitutional lawyers make such a prediction.

NOTE: It would also be wrong, I think, for those who say DOMA is unconstitutional to use DOMA's existence as an argument for why the FMA is unnecessary. (I suppose they could argue that DOMA is unconstitutional but courts will still uphold it, so the FMA is unnecessary because of that; but that still doesn't seem quite right to me, because they'd essentially be arguing that their fellow citizens should just rely on the government's violating the constitution. At the very least, such an argument ought to be made explicitly.)

If anyone can point me to specific examples of both of these arguments being made, likely at separate times, by a particular person or organization, I'd love to see that. Note, though, that I'm looking for the person or group making specifically those arguments. It's not just that they argue that DOMA is bad policy and that the FMA is unnecessary, or that DOMA is unconstitutional and that the FMA is unwise, or anything else. To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.

Taxpayers paying for damages caused by Rep. Janklow's car accident:

Interesting little illustration of the way lawsuits against federal officials sometimes work, from the AP -- both as to who pays, and as to the resulting limits on punitive damages. I express no opinion about whether this is the proper result, but it seems interesting:

Former U.S. Rep. Bill Janklow was on duty when he caused a fatal accident last summer, so taxpayers should pay any civil damages in a wrongful death lawsuit, according to a court ruling Tuesday.

U.S. Magistrate Arthur Boylan sided with U.S. Attorney Tom Heffelfinger's conclusion that Janklow, 64, was on official business Aug. 16 when he sped through a stop sign near Trent and collided with motorcyclist Randy Scott, 55, of Hardwick, Minn.

Boylan concluded that the federal government, not Janklow, should be listed as the defendant in the lawsuit filed by Scott's mother, sister, son and daughter.

The family's lawyer, Ronald Meshbesher of Minneapolis, wanted the case moved back to state court in Minnesota so the family could get punitive damages, something not allowed if the case stays in federal court. . . .

Janklow had appointments or appearances over two days in Rapid City, Pierre and Aberdeen and was on his way to his Brandon home when he went through a stop sign at an intersection of two county highways. . . .

The magistrate also concluded that Janklow's driving habits did not remove him from coverage by the Federal Tort Claims Act that legally protects federal employees.

"It is foreseeable that improper driving conduct, including conduct that can be construed as reckless, would occur," Boylan wrote. . . .

Janklow, who was elected to Congress in 2002 after serving a total of 16 years as governor, spent 100 days in jail after being convicted of speeding, running a stop sign, reckless driving and second-degree manslaughter. He resigned from the House in January. . . .

Thanks to reader Dennis Callahan for the pointer.

Soliciting ideas for Academic Legal Writing:

I hope to put out a second edition of my Academic Legal Writing book eventually. If any of you have used it, can you suggest any changes, or let me know what you'd like to see added? Please let me know, at volokh at And if you run a legal Weblog that has some law student readers, and could pose this question to them, I'd be very much obliged. Many thanks in advance.

Crime of violence vs. crime of sex:

Some research I was doing recently reminded me of the familiar line, "rape is a crime of violence, not a crime of sex." It's certainly true that rape (setting aside statutory rape and a few other unusual situations) is a crime of violence. I also suspect that most rapists aren't just after ordinary sexual gratification, but also want the feelings of domination (or something like that) that come from the violence of the act. Given the serious penalties for rape, and even taking into account the difficulty of catching and convicting the rapist, committing rape just to get ordinary sexual gratification is a pretty expensive proposition.

But it seems to me pretty likely that there's a false dichotomy here. In fact, rape seems to be both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined). The best evidence that I've seen for this is the breakdown of rape by age of victim (see National Crime Victimization Survey data, table 4):

Age range

Rate per 1000 women in the age group (* = estimates based on 10 or fewer sample cases in the survey)













65 and over


Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness. Yes, there are rapes of older women; yes, women outside the highest-risk groups are sexually attractive; but the correlation is still quite striking.

Now of course there may be other explanations: For instance, younger women may spend more time in places where rapes might occur. Indeed, the simple assault and robbery rates peak in the same age ranges, too (see the same table) -- but the rates level off far more gradually, for instance with simple assault per 1000 women in the age group going from 32.8 for 12-15 to 37.1 for 16-19, 23.7 for 20-24, 15.9 for 25-34, 12.1 for 35-49, 7 for 50-64, and 1.4 for 65 and over. (Simple assault is defined as successful or attempted "[a]ttack without a weapon resulting either in no injury, minor injury . . . or in undetermined injury requiring less than 2 days of hospitalization"; the way the NCVS treats this, it seems to exclude the great majority of rapes or attempted rapes.)

Also, younger women tend to date younger men, younger men tend to be more likely to commit crimes, so younger women may be more likely to be victimized by date rape. But though roughly 2/3 of rapes involve nonstrangers (see table 27 here), 1/3 involve strangers, so the drop-off even for stranger rapes seems to be quite striking (see table 29 for data, though note that again there are relatively few cases in the survey for each category).

Again, perhaps there's some other explanation that completely eliminates the connection between rape and the offender's likely sexual interest in the victim. But given the data, I find that pretty implausible. Rape seems generally to be a crime of violent sex, not of violence or sex alone.

United States v. Councilman: This Time the Sky Really *Is* Falling:

In debates on Internet surveillance law, I often end up arguing that reports of privacy's death have been greatly exagerrated. For example, I wrote a law review article in 2002 describing the effect of the USA Patriot Act on Internet surveillance law as The Big Brother That Isn't. Two weeks ago, however, the First Circuit decided a case called United States v. Councilman that poses a very real threat to Internet privacy. There has been some press on the case already, but some writers and commentators have also suggested that the decision really isn't a big deal. Declan's take is representative of the no-big-deal school:

the folks who are most upset about this haven't read the court's opinion carefully, and those that have are discounting the ability of state law and tort sanctions to keep people in line. There are other mechanisms than just federal wiretapping law that can enforce good behavior.

I disagree with Declan, and thought it might be worth explaining why the Councilman decision is so dangerous.

First, a bit of background. Federal law protect e-mail privacy through two primary laws: the Wiretap Act, codified at 18 U.S.C. 2510-22, and the Stored Communications Act, 18 U.S.C. 2701-11. The Wiretap Act offers very strong protection against the real-time interception of telephone or Internet communications. If any one tries to step in and snoop on the contents of another person's communications, they commit a federal felony offense unless one of several fairly narrow exceptions applies. If the government tries to do this, they need a super-search warrant called a Title III order. In contrast, the Stored Communications Act sets up lesser privacy protections for access to stored communications. First, the law is much narrower; it applies only to files held by particular providers, and has much broader exceptions. Second, the prohibition against snooping on stored files is much narrower and ordinarily a misdemeanor. Third, law enforcement access to stored files is normally governed my a basic warrant requirement, rather than a super-search warrant requirement. Why the different treatment for stored and in-transit communications, you wonder? Well, there are a couple of reasons, but one important reason is that the Supreme Court suggested in Berger v. New York that in-transit interception requires special protections under the Fourth Amendment. (By the way, I discuss how the Wiretap Act applies to the Internet in the Big Brother article I linked to above. I also give a basic explanation of the Stored Communications Act in a forthcoming article you can download in draft form here.)

The Councilman case addresses an ambiguity in the line between the Wiretap Act and the Stored Communications Act. The question is, when is a file stored, and when is it in transit? This is a big question because on the Net communications are often at rest for very brief periods of time in the course of transmission, and the statutory text doesn't make particularly clear whether access to a file that is at rest for a nanosecond is supposed to be covered by the Wiretap Act or the Stored Communications Act. Councilman involved an ISP employee who wrote and installed a computer program to scan incoming e-mail of the ISP's customers; ISP employees would then read the e-mails and try to use them for the commercial advantage of the ISP. In a nutshell, the First Circuit held (by a vote of 2-1) that because the program scanned the e-mails while they were at rest for a nanosecond, the e-mails were in storage at that time and access to them was covered by the Stored Communication Act, not the Wiretap Act. Because Councilman had been indicted for violating the Wiretap Act, the Court affirmed the dismissal of Councilman's indictment.

Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored Commmunications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.

The Councilman approach largely nullifies the Wiretap Act online, by contrast, with rather remarkable implications. It is my understanding that when the FBI gets a Wiretap order to install a network wiretapping device such as Carnivore, they usually install the device at a nanosecond-storage point. Well, guess what, folks-- that's no longer regulated by the Wiretap Act. Under Councilman , DOJ can install Carnivore with at most only a search warrant. Even worse, the FBI doesn't need a search warrant at all if the owner of the computer where Carnivore is installed consents and that owner is a University or business other than an ISP. Because the exceptions to the Wiretap Act are narrow while the exceptions to the Stored Communications Act are much broader, the switch from protection via the former to via the latter is not only a switch to lesser protection, but in many cases a switch to no protection at all. For example, if the FBI wanted to install Carnivore at my university's servers and the university was willing to let them do this, the FBI could monitor all of my incoming and outgoing e-mail (and all of the e-mail of everyone at the University, for that matter) in real-time without any legal process or oversight whatsoever. Do you remember the controversy over the "computer trespasser" exception to the Wiretap Act, which was one of the most controverial sections in the USA Patriot Act? Under Councilman, that kind of monitoring generally will not even implicate the Wiretap Act in the first place, so the monitoring is no longer limited by the specific statutory requirements of the trespasser exception. Bad stuff. Very bad.

There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.

Chirac relents:

France will have a referendum on the proposed EU constitution in the second half of 2005. (Story is in French.)

Other bits and pieces from the President's Bastille Day interview:

Chirac reaffirmed his commitment to the 35-hour workweek but expressed support for liberalizing the law to increase the freedom of workers "who want to work more in order to earn more." He denounced gay marriage as "a parody of marriage," but discussed further improvements and expansions of the rights associated with the French equivalent of civil unions. He reiterated his stock hostility to "communitarianisme" ("communalism" is probably a closer English match than "communitarianism") and his stock endorsement of civic education, schooling for equality, etc.-- i.e. there will be no movement on the headscarf issue. He mentioned the need to "rehabilitate work, responsibility, and merit in our society" in the context of discussing unemployment, sympathizing with those who "feel that they're always paying more for those who don't work" and insisting that "it is unacceptable for an unemployed person to refuse to ever get a job."

FMA Fails

I'm struck by one thing on the list of who voted how on cloture on the FMA. The Republicans voting against cloture were Campbell, Chafee, Collins, McCain, Snowe, and Sununu.

Campbell's an odd duck. McCain is a funny combination of highly principled and incredibly self-important, devoted to his public standing as a contrarian, Republican who opposes Bush whenever possible. Snowe, Collins, and Chafee are the usual suspects-- Jeffords Republicans. Sununu and McCain are the only fiscal conservatives in the bunch, and McCain tilts left on lots of non-budgetary items. Three cheers for John Sununu Jr., a fiscal conservative, spending-cutter, free-trader, Social Security reformer who voted against the FMA.

It's disappointing to libertarians that it's so rare to see positions like Sununu's. We intermittently get excited about some Republican who claims to be a fiscal conservative and a social liberal; but, almost inevitably, their fiscal conservatism disappears. Much as we wish otherwise, and much as we would like to believe that a drive for intellectual consistency will push people to be consistent anti-statists, the most consistent free-marketeers in Congress tend to be real social conservatives. The social liberals tend to be wet at best on economic questions. (Of course, there are lots of social conservatives who are also wet on economic and fiscal issues.) This isn't as true in the commentariat as in Congress, and isn't equally true on all "social" issues; free-market conservatives are a lot more likely to be drug-legalizers than to be pro-choice, and some free-market conservatives are pretty hardcore constitutionalist-civil libertarians on questions like criminal procedure and federal criminal law. But, in office, the free marketeer/ social conservative correlation is (from our perspective) unpleasantly high.

I'm enough of a believer in the long-term rationality of the parties as vote-seekers to think that this must be due to the underlying preferenes of voters. No matter how many people tell pollsters that they like social liberalism/ fiscal conservatism, there just aren't many votes to be had at that particular intersection. Maybe it's not a coincidence that Sununu is from my homestate; maybe the political culture I was surrounded by when I was growing up is pretty idiosyncratic.

Hmm. Hadn't meant to write a glum post; I'd meant to write a "Yay John Sununu!" post. Anyway, Yay John Sununu.


According to Andrew Sullivan, New Hampshire's other fiscally conservatie Republican Senator, Judd Gregg, planned to vote against the FMA though he voted in favor of cloture. The same goes for McCain sidekick Chuck Hagel and usual suspect Arlen Specter.

See also the post-mortem from FMA supporter [whoops-- see below] Ramesh Ponnuru. I think Ponnuru is right that Frist badly mishandled this (though of course that doesn't disappoint me nearly as much as it does him).

Whoops. Ponnuru never endorsed the FMA, though he did endorse the Hatch proposal. He's been careful to talk about federalism and about what he took to be misunderstandings of the FMA without necessarily supporting the latter. He discusses these things here .

Crime of violence vs. crime of sex:

Some research I was doing recently reminded me of the familiar line, "rape is a crime of violence, not a crime of sex." It's certainly true that rape (setting aside statutory rape and a few other unusual situations) is a crime of violence. I also suspect that most rapists aren't just after ordinary sexual gratification, but also want the feelings of domination (or something like that) that come from the violence of the act. Given the serious penalties for rape, and even taking into account the difficulty of catching and convicting the rapist, committing rape just to get ordinary sexual gratification is a pretty expensive proposition.

But it seems to me pretty likely that there's a false dichotomy here. In fact, rape seems to be both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined). The best evidence that I've seen for this is the breakdown of rape by age of victim (see National Crime Victimization Survey data, table 4):

Age range

Rate per 1000 women in the age group (* = estimates based on 10 or fewer sample cases in the survey)













65 and over


Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness. Yes, there are rapes of older women; yes, women outside the highest-risk groups are sexually attractive; but the correlation is still quite striking.

Now of course there may be other explanations: For instance, younger women may spend more time in places where rapes might occur. Indeed, the simple assault and robbery rates peak in the same age ranges, too (see the same table) -- but the rates level off far more gradually, for instance with simple assault per 1000 women in the age group going from 32.8 for 12-15 to 37.1 for 16-19, 23.7 for 20-24, 15.9 for 25-34, 12.1 for 35-49, 7 for 50-64, and 1.4 for 65 and over. (Simple assault is defined as successful or attempted "[a]ttack without a weapon resulting either in no injury, minor injury . . . or in undetermined injury requiring less than 2 days of hospitalization"; the way the NCVS treats this, it seems to exclude the great majority of rapes or attempted rapes.)

Also, younger women tend to date younger men, younger men tend to be more likely to commit crimes, so younger women may be more likely to be victimized by date rape. But though roughly 2/3 of rapes involve nonstrangers (see table 27 here), 1/3 involve strangers, so the drop-off even for stranger rapes seems to be quite striking (see table 29 for data, though note that again there are relatively few cases in the survey for each category).

Again, perhaps there's some other explanation that completely eliminates the connection between rape and the offender's likely sexual interest in the victim. But given the data, I find that pretty implausible. Rape seems generally to be a crime of violent sex, not of violence or sex alone.

Rape in the Phillippines

In response to my post on statutory rape law in Brazil, a reader from the Phillippines informs me that the Phillippine penal code provides that in cases of rape "the subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed." I find this a little less bizarre, but still offensive.

Update:Another reader offers this insight on the Phillippine law:

The odd twist you posted on rape law in the Philippines--that marriage between perpetrator and the victim would annul the charge of rape--was actually (I believe) common in American colonial times. My criminal law professor (Anne Coughlin) has done a bunch of work on the origins of rape law, and her (admittedly controversial) conclusion is that the goal of the law was to punish premarital sex, and that thus many of the idiosyncrasies of rape law can be understood if the woman was regarded as a possible accomplice, rather than a victim.

This law makes sense in that light: the woman cried "rape" to protect her honor and cover up her participation in the crime of premarital sex; her decision to marry the man who raped her is essentially an admission of her own complicity and thus the man's innocence.

I'm not saying this is a good law, just that it can be better understood through Coughlin's lens than by brushing it off as pure sexism.

Revisiting the Torture Memos: Last week, the WSJ ran an op-ed by University of Chicago law professors Eric Posner and Adrian Vermeule that could best be described as anti-anti-torture memos. Although not defending the specific conclusions of the individual OLC memos on torture, the applicability of the Geneva Conventions to enemy combatants, and so on, the op-ed strongly challenged the memos' critics, who they claim "have puffed up an intramural methodological disagreement among constitutional lawyers into a test of professional competence." I wholeheartedly agree. In my experience there is a disturbing tendency — on all sides of the ideological spectrum — to accuse those with whom one disagrees of ignorance, bad faith, or both. After all, why debate an opponent when you can diminish or demonize him?

Some further excerpts from Posner and Vermeule's thoughtful and persuasive piece:
the memorandum's arguments are standard lawyerly fare, routine stuff. The definition of torture is narrow simply because, the memorandum claims, the relevant statutory texts and their drafting histories themselves build in a series of narrowing limitations, including a requirement of "specific intent." The academic critics disagree, but there is no foul play here. . . .

As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes. That conclusion may be right or wrong — and we, too, would have preferred more analysis of this point — but it falls well within the bounds of professionally respectable argument. . . .

whatever one's views on the use of torture on the battlefield, the memorandum is not "incompetent" or "abominable" or any more "one-sided" than anything else that the Justice Department has produced for its political masters.
As Glenn would say, read the whole thing. [Of note, Berkeley law professor John Yoo, author of one of the controversial memos (discussed in several prior posts, the most recent of which is here), made similar arguments in his own defense in the July 6 LA Times.]

Posner and Vermeule also suggest an interesting intellectual undercurrent to the controversy.
An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars [including John Yoo] who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress. . . . From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones. . . .
Given the op-ed's authors — two prominent and prolific University of Chicago law professors — I expected the op-ed would get more comment in the blogosphere. Perhaps it was overlooked because the WSJ did not place the article on-line. Now that it's posted on Chicago's site here, perhaps it will receive more discussion. [NOTE: Link is down, but Google cache is here.]

Update:Neither Jack Balkin nor Michael Froomkin is persuaded by the Posner-Vermeule op-ed.

(By the way, what does it mean that I "often write[] as if [I] were a government lawyer"?)

In These Troubled Times?: One of my pet peeves is the trope, "In these troubled times...." A few weeks ago, I was at a conference also attended by a much younger and quite pessimistic professor of English. I tried to buck him up by telling him that things were not going to hell in a hand basket. Indeed, politically speaking, things were looking up. Mine was a comment, not on current party politics, but on the revival of classical liberalism, the more radical variant of which is libertarianism. He tried to take solace from my going back from decade to decade in search of one where times were less troubled than today.

The 70's? (Vietnam, boat people, gas lines, stagflation, Iranian hostage crisis, the cold war)
The 60's? (Cuban Missile Crisis, assassinations, race riots, Vietnam, but an excellent sound track, the cold war)
The 50's? (Korea, global Communism, Mutual Assured Destruction, Selma, the cold war)
The 40's? (WWII, the Holocaust)
The 30's? (the Great Depression, the rise of National Socialism and Fascism, War in Europe)
The 20's? (Prohibition and the attendant rise of organized crime with its widespread violence and corruption, stock market collapse)
The 10's? (WWI and the "lost generation")

Too much before then and I lose my sense of the decades, but we had the savagery of Southern reaction to Reconstruction followed by a racial apartheid that lasted until the 1960s, and legal slavery before that--not to mention a Civil War in between that killed more Americans than any other and the Indian Wars that followed. The antebellum decades were not all that terrific either.

To all this you can add the lack of antibiotics.

In other words, all times are troubled but, since the 1980s, things have been comparatively blissful--and I include in this assessment the post-911 world for all its tragedy, tumult and a global war between the United States and its allies and the NGOs of Islamo-fascism and their government enablers.

But I could tell he was unconvinced. So perhaps he would be more interested in this essay by William F. Buckley from the inaugural issue of the National Review in 1955. Does this sound familiar?

"I happen to prefer champagne to ditchwater," said the benign old wrecker of the ordered society, Oliver Wendell Holmes, "but there is no reason to suppose that the cosmos does." We have come around to Mr. Holmes' view, so much that we feel gentlemanly doubts when asserting the superiority of capitalism to socialism, of republicanism to centralism, of champagne to ditchwater — of anything to anything. (How curious that one of the doubts one is not permitted is whether, at the margin, Mr. Holmes was a useful citizen!) The inroads that relativism has made on the American soul are not so easily evident. One must recently have lived on or close to a college campus to have a vivid intimation of what has happened. It is there that we see how a number of energetic social innovators, plugging their grand designs, succeeded over the years in capturing the liberal intellectual imagination. And since ideas rule the world, the ideologues, having won over the intellectual class, simply walked in and started to run things.

Run just about everything. There never was an age of conformity quite like this one, or a camaraderie quite like the Liberals'. Drop a little itching powder in Jimmy Wechsler's bath and before he has scratched himself for the third time, Arthur Schlesinger will have denounced you in a dozen books and speeches, Archibald MacLeish will have written ten heroic cantos about our age of terror, Harper's will have published them, and everyone in sight will have been nominated for a Freedom Award. Conservatives in this country — at least those who have not made their peace with the New Deal, and there is a serious question of whether there are others — are non-licensed nonconformists; and this is a dangerous business in a Liberal world, as every editor of this magazine can readily show by pointing to his scars. Radical conservatives in this country have an interesting time of it, for when they are not being suppressed or mutilated by Liberals, they are being ignored or humiliated by a great many of those of the well-fed Right, whose ignorance and amorality of never been exaggerated for the same reason that one cannot exaggerate infinity.
In my proto-libertarian youth, I had two sources of political inspiration (other than my father): Milton Friedman's column in Newsweek magazine, and the National Review. The undeniable ugliness of today's political and intellectual climate stems not from the fact that times are worse, but from the fact that a great ideological debate has been joined. A debate, I should add for those prone to undue optimism, that will never end. There will always be forces arrayed for and against liberty, for and against the state. All that changes is who has the upper hand. At the moment, we are in something close to equipoise politically, but I believe (and I know others will passionately disagree) that classical liberal ideas have been on the ascendency for a long time and are now the engine driving the intellectual debate, just as communism and socialism was when Buckley wrote 50 years ago.

What has not changed nearly enough is the marginality of classical liberal ideas among tenured academics, but even here there is simply no comparison between academia today and that of only a few years ago. Someone recently asked me how I am treated by my fellow law professors--whether modern liberal or more leftist--expecting me to complain of abuse and insult. I could truthfully say that, for whatever reason, I am quite consistently treated with much courtesy and respect by my colleagues both at home and away. Those who despise my ideas keep whatever malevolent thoughts they may have to themselves. Add to this the enthusiasm and idealism of the many students I met at the 45 laws schools on my tour and at the many others I visited in recent years.

This is not to say that no ideological discrimination against classical liberals exists in academia. I have witnessed it first hand and think it is quite common. But I have also witnessed discrimination against the radical left by more mainstream modern liberals. This is more a function of the corrupting affect of being in the majority, I think, than of which ideology is dominant. As soon as there are some classical liberals in a department, the personal cost of discriminating against others increases, as it does when there are blacks or other minorities in the room.

Of course, much remains to be done on the field of ideas, but I think we who love liberty should pause to appreciate the progress that has been made and that continues apace.

CORRECTION: An astute reader points out that the violence in Selma occurred in the 1960s not the 50s. I was thinking of the Little Rock crisis when President Eisenhower sent federal troops to enforce a desegregation order (this is from the Eisenhower Presidential Archives):

On May 17, 1954, the U.S. Supreme Court ruled in Brown vs. Topeka Board of Education that segregated schools are "inherently unequal." In September 1957, as a result of that ruling, nine African-American students enrolled at Central High School in Little Rock, Arkansas. The ensuing struggle between segregationists and integrationists, the State of Arkansas and the federal government, President Dwight D. Eisenhower and Arkansas Governor Orval Faubus has become known in modern American history as the "Little Rock Crisis." The crisis gained attention world-wide. When Governor Faubus ordered the Arkansas National Guard to surround Central High School to keep the nine students from entering the school, President Eisenhower ordered the 101st Airborne Division into Little Rock to insure the safety of the "Little Rock Nine" and that the rulings of the Supreme Court were upheld. The manuscript holdings of the Eisenhower Library contain a large amount of documentation on this historic test of the Brown vs. Topeka ruling and school integration. [available at the above link--RB]

Update: A reader provides this link to a story about a skeleton of a teen from the 1660s found buried from in basement:

He suffered from tuberculosis and worked so hard that he had herniated discs and other back injuries. An infection in his rotting teeth might have caused his death. He had 19 cavities.
Some may discount this sort of story as being about "mere" physical standards of living, rather than matters more spiritual or cultural. For them, another reader brings to my attention this marvelous poem by Billy Collins, my favorite line of which is "Even this morning would be an improvement over the present.":


Remember the 1340's? We were doing a dance called the Catapult.
You always wore brown, the color craze of the decade,
and I was draped in one of those capes that were popular,
the ones with unicorns and pomegranates in needlework.
Everyone would pause for beer and onions in the afternoon,
and at night we would play a game called "Find the Cow."
Everything was hand-lettered then, not like today.

Where has the summer of 1572 gone? Brocade sonnet
marathons were the rage. We used to dress up in the flags
of rival baronies and conquer one another in cold rooms of
Out on the dance floor we were all doing the Struggle
while your sister practiced the Daphne all alone in her room.
We borrowed the jargon of farriers for our slang.
These days language seems transparent a badly broken code.

The 1790's will never come again. Childhood was big.
People would take walks to the very tops of hills
and write down what they saw in their journals without speaking.
Our collars were high and our hats were extremely soft.
We would surprise each other with alphabets made of twigs.
It was a wonderful time to be alive, or even dead.

I am very fond of the period between 1815 and 1821.
Europe trembled while we sat still for our portraits.
And I would love to return to 1901 if only for a moment,
time enough to wind up a music box and do a few dance steps,
or shoot me back to 1922 or 1941, or at least let me
recapture the serenity of last month when we picked
berries and glided through afternoons in a canoe.

Even this morning would be an improvement over the present.
I was in the garden then, surrounded by the hum of bees
and the Latin names of flowers, watching the early light
flash off the slanted windows of the greenhouse
and silver the limbs on the rows of dark hemlocks.

As usual, I was thinking about the moments of the past,
letting my memory rush over them like water
rushing over the stones on the bottom of a stream.
I was even thinking a little about the future, that place
where people are doing a dance we cannot imagine,
a dance whose name we can only guess.

Zarqawi continued:

My New Republic column is online (link should work for non-subscribers as well as subscribers).

Tuesday, July 13, 2004

Download the new Landes and Posner:

The Political Economy of Intellectual Property Law, published by AEI, June 2004, the download is here, 42 pp..

Here is the summary:

This monograph seeks to explain the expansion of intellectual property law over the last half century, focusing in particular on the rapid growth that began with the 1976 Copyright Act. In so doing, it explores a fundamental, unresolved issue in the theory of regulation: why some kinds of regulation have increased dramatically over this period while others have virtually disappeared.

I have yet to read it, but obviously this will be of interest to many.

Thanks to the ever-excellent for the pointer.

Recent developments in the Church sex abuse litigation

reminded me of this old chestnut: A man goes to his minister. "Reverend, help me -- everything is going badly for me, I've almost given up hope, nothing is going right, what should I do?"

"Well, my son, do what I always do: Just open up a Bible to a random page, put your finger in a random place, and whatever you're pointing to is sure to be good advice."

A month later the man comes up to the minister again. "Thank you so much, Reverend," he says. "I followed what you said to the letter, and everything is much better now."

"I'm so glad to hear it, my son," the minister says. "But I'm curious: What verse did the Lord guide you to?"

"Well, I opened up the Bible, put my finger on a random place, and there it was, in black on white: Chapter 11!"

Bainbridge vs. Epstein on Judicial Review: Steve Bainbridge takes issue with Richard Epstein's op-ed piece, Live and Let Live, in today's Wall Street Journal (available only to paid subscribers).

Generally--and here the illiberal FMA is a jarring exception--conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes. The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. Both sides struggle to accommodate the rival impulse: All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?
In his essay, Richard calls himself a "constitutional libertarian." From our previous exchange, I have some inkling what Steve thinks of "constitutional libertarians," which he again pursues in a blog post entitled, The Problem with Constitutional Libertarians: Groping Towards a Conservative Theory of Judicial Review. Richard responds here.

Steve's final comment is illuminating:

But it also seems to me that ensuring judicial restraint is the key sticking point of any theory of judicial review. Indeed, the strongest argument for democratic majoritarianism may be the impossibility of achieving judicial restraint, as it is not clear to me that judicial restraint is any more easily obtained under a constitutional libertarian theory either.
It is good that Steve is wrestling seriously with how to limit judicial review and that he sees that the problem of limits affects all such theories. Any retreat to pure majoritarianism eliminates this problem but at a terrible price for liberty--a price neither the founders nor those who adopted the Fourteenth Amendment were unwilling to pay. The question then is whether the sort of mixture of judicial review/restraint that Steve favors (though he has yet to work it out) offers any advantages over an original meaning approach to textualism that sanctions considerably more constraints on legislative discretion than he wants. In other words, if it is difficult to draw any line, then where one chooses to the draw the line might make little difference, so you may as well draw the line at a place that is more protective of liberty. As I have argued in my amicus brief in Lawrence, if a naked legislative assertion of immorality is deemed sufficient to justify any legislative restrictions on liberty, then this justification knows no limits, and is supremely dangerous to liberty.

Richard concludes his essay with an observation that I wish conservative democratic majoritarians (and their democratic compatriots on the left) would take to heart:

The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes.
And the deeper the moral dispute, the more important that it not be enshrined by a majority into law.
Took a short CPR class this morning,

with a special emphasis on infant CPR, for Benjamin's benefit. Glad to know how to do it, though I hope I'll never have to.

DOJ Makes the Case for the Patriot Act:

Today the Justice Department released a 30-page report in support of the Patriot Act. The AP story is here; the DOJ report itself is here in .pdf format. I read the report, and there's nothing particularly unexpected in it. Still, worth noting.

Academic study reveals:

Ice cream production is closely correllated with the rate of forcible rape. Yes, that's right — Professor Eugene Volokh, of the prestigious UCLA School of Law and the even more prestigious Volokh Conspiracy Web log, has uncovered scientific evidence that ice cream production is closely correlated with the forcible rape rate.

Professor Volokh used 2000 data from the Federal Bureau of Investigation's Uniform Crime Reports, and 2000 data from the international Dairy Foods Association's Dairy Facts publication; the correlation was 0.84, which is very high (1 would be a perfect correlation and 0 would be no correlation at all) and statistically significant. Unfortunately, data on monthly ice cream consumption was unavailable, but ice cream production data seems likely to be a good rough proxy for ice cream consumption. For the spreadsheet containing this data — The Volokh Conspiracy is a stickler for openness in research — see here.

It is time, especially in this election season, that Big Dairy be asked some serious questions about this disturbing phenomenon and about its impact on the women and children of our nation. Professor Volokh (volokh at is available for interviews and commentary on this important research finding.

(Read here before sending me e-mail accusing me of statistical ignorance.)

Intelligence Errors and the American Psyche:

Over the course of the last year, it has become increasingly apparent that the United States invaded a country the size of California based in part on a misunderstanding. Popular support for the war in Iraq was based in large part on the belief that Iraq was gathering weapons of mass destruction, which itself was based largely on U.S. intelligence reports. Although different people had different reasons to support the war, many thought we needed to go in to Iraq to make sure that Saddam didn't pass off a nuke to Al-Qaeda.

According to this 500-page report from the Senate Select Committee on Intelligence (check out the 30-page summary of conclusions here), it turns out that the intelligence agencies were kinda off on that whole WMD thing. The report is quite damning, and suggests that our intelligence agencies failed us in a most remarkable way. Of course, it may turn out that Saddam was doing more than we now realize; it may also be true that the war in Iraq would have happened even without the intelligence failures. But at this point it looks at least plausible that "but for" the intelligence errors, no war would have occurred.

It's easy for the importance of this to get lost in the politics of the moment. For opponents of the Bush Administration, the intelligence failures are a sign of Bush's incompetence (and another reason to vote against Bush). For Bush supporters, they are old news that matter less than what to do now that we are in Iraq (and provide no reason to vote against Bush). But I wonder: short-term politics aside, what are the long-term implications of the intelligence errors on the American psyche? I don't know the answer; I'm afraid that this is more a question-asking post than a question-answering post. But I wonder if the intelligence errors will have a ripple effect in future years on how people interact with and respond to the government in areas far removed from intelligence agencies and warfare. Many people placed their trust in the intelligence agencies to get it right, and it looks like they didn't. I wonder if we will begin to see changes in areas of law and culture that are based directly or indirectly on whether the American people trust their government. Maybe we won't; perhaps people are happy to just forget about the errors and move on. But it seems plausible to me that the remarkable importance of the errors will lead to some unexpected consequences over the long term.

Where is the shopping in our neighborhood? Will Baude and Phoebe Maltz (multiple posts each; follow the links) have an exchange going on a topic Dan Drezner also recently mentioned: the stunning lack of commerce in Hyde Park, Chicago. The neighborhood has neither the amenities of a real college town nor those of a collegiate neighborhood in a big city (Phoebe compares it unfavorably with Morningside Heights, about which she is surely correct). The old joke goes that you can buy anything in the world you want to in Hyde Park, as long as it's a book. Two of the country's great bookstores are here, plus a very good used/ rare book shop, a very nice Borders, and a mediocre little Barnes & Noble. But (as Phoebe and Will point out) there's nary a Gap in sight. No Banana Republic. No Indian food, no sushi, no Bed & Bath, no Whole Foods or Trader Joes, only one allegedly first-rate restauarant (though it isn't) where outside speakers or job candidates can be brough without embarrassment, very few low-price studenty restaurants or bars. No comic book stores or gaming stores. No poster stores or boutiques selling precious little $200 Guatemalan peasant skirts. No Birkenstock dealer. And so on, and so on. The area around the U of C looks nothing like the area around any other American residential college or university I know of. Says Phoebe:
Many Chicago students have a sort of shopping phobia, assuming that proximity to a source of, say, new tee shirts would cause the University to lose its intellectual edge.[...]If a GAP were to open on 55th Street, goes the argument, people would forget about Hegel and Aristotle and spend weeks on end trying to decide which jeans best flatter their asses. This is absurd--as much as they hate to admit it, Chicago students, like mere mortals, buy new clothing and accessories from time to time. It would actually leave more time for important scholarly business if Chicago folk didn't have to sneak up to Michigan Avenue every time they wanted to buy pants.
Will responds:
Hyde Park is devoid of Michigan Avenue's shopping opportunities not because people are afraid the GAP would destroy the young American Mind, but because UChicago (largely, but not exclusively) caters to folks who don't buy (or won't admit to buying) new pants so frequently that they want their blue jeans within walking distance.
Honestly, what are they teaching in University of Chicago economics classes these days? I thought Chicago was supposed to produce libertarians who knew to look for government failure behind market strangeness. In short: it's the zoning. Want to know why there's no Gap on 55th Street? Click through to the searchable map. Pan up and down 55th Street, the barren wasteland that bisects Hyde Park. Do you see how much of it is zoned for commercial or business use?

Chicago is, generally, zoned so as to make commercial development extremely difficult-- and institutionally arranged so that an individual Alderman (one's local city councillor) exercises tremendous discretionary power over zoning waivers. Vulgar public choice theory is overrated by many libertarians; but the rent-seeking dynamic doesn't get much more vulgar than the Chicago zoning code. The system is not designed to allow commercial (or residential) supply to spring up to meet demand. It's designed to allow elected and unelected officials to control their neighborhoods, for political or economic gain. There's clearly market demand for more commerce in Hyde Park-- and for commerce closer to campus than 53rd Street or Lake Park Avenue. But commerce can't get in the door. The landmark off-campus bar, Jimmy's Woodlawn Tap, was closed for a year and a half when Jimmy died and left the place to his bartender, because it was now under new owenrship and had to re-apply for lots of licenses to continue doing what it had always done in exactly the same space. Bar Louie was delayed for who knows how long. Borders had to struggle for a good long while to get permission to open.

As I understand things, the rest of the story has to do with the way the U of C is laid out, with the university's history of entanglement with Daley-Sr.-era urban renewal and urban planning, and with contemporary neighborhood politics. The layout is a real but minor problem. For as small a student body as we have, the dorms are spread all over the place, some farther away than one wants to walk at night or in the winter. That diffuses the student demand that ordinarily gets concentrated in a few blocks surrounding campus. We also have a very small undergraduate population for a research university, especially an urban research university. (Columbia's is huge by comparison, and of course NYU's is huge by any measure.) And undergraduates tend to have access to more discretionary income than do the doctoral students who make up such a large share of Chicago's student body. So demand is weakened that much further.

Much, much more important is the University/city alliance on urban planning some decades ago-- an alliance that, like everything else to do with Daley-era zoning and urban planning, was about race. Hyde Park was once one of the nation's great centers of jazz and blues. But that was a long, long time ago. The University and the city shut the clubs down; they attracted the wrong element into the neighborhood, donchaknow. Not coincidentally, the clubs were on 55th Street. Jane Jacobs could have predicted the result all too easily. The neighborhood's economic ecology has never really recovered from the decision to shut 55th Street down as a commercial district; and, as big stretches of the neighborhood became unpopulated at night, safety declined, further frightening away other businesses.

Neighborhoods that the city wanted to "protect" as white (or, in the case of Hyde Park/Kenwood, white and upper-class black) got surrounded with barriers (Interstate 90/94, the UIC campus, Washington Park) that made pedestrian traffic into them from surrounding neighborhoods as difficult as possible. Commercial barrenness and pedestrian inaccessibility were inescapable results, indeed were part of the point. When, inevitably, the strategy failed, Hyde Park was left as a pretty dysfunctional neighborhood.

Decades later, the local political power in Hyde Park is arranged very differently, while the memory of the University's role in urban renewal is still sharp and bitter. So the officials who have discretionary power over what commerce comes in, and their constitutents, aren't in any rush to turn the place into a college neighborhood, or into a gentrified faculty one either. The existence of university-centered demand for a good or service is not treated as sufficient reason to let anyone into the neighborhood to provide the service.

There are other issues that have nothing to do with the university's self-image as being too lost in the books to get lost in the aisles. Parking is a recurring issue, here as in lots of dense urban areas. But the heart of the story is political power, allied to the university in a very bad cause decades ago, now arrayed against the commercial interests of the university's residents; and systematically bad decisions about urban planning.

Don't get me wrong; I love it here, and the neighborhood as well as the campus have real virtues. But there are also real quality-of-life sacrifices involved in living in a city neighborhood where there is so little walking-distance commerce, and so many barriers to developing more of it. Those sacrifices aren't made necessary by the (deserved) pride our students take in their commitment to intellectual pursuits.
New York 9/11 election:

I am told that when the New York election scheduled for 9/11 was postponed, the votes cast on the original day were discarded, and people were expected to revote on 9/25. Joel Graber, of the New York State AG's office, posted something more about this to an election law list I'm on, and I pass it along with his permission:

In New York City on 9-17-01, nine African-American, Hispanic and Asian-American Democratic candidates for City Council, and some voters, represented by highly-experienced civil rights attorneys, sued in the EDNY to postpone the primary rescheduled from 9-11-01 to 9-25-01, alleging violations of their "right to vote, free speech and political participation, freedom of association, right to due process and equal protection of the law," and sections 2 and 5 of the VRA. The claims boiled down to the arguments that the board of elections, which is located close to the WTC, was not up to the task, that voters were too distracted by the attack, and that Rosh Hashanah fell on Sep. 18 and 19 thus hampering plaintiffs' opportunities for political activity. A [temporary restraining order] and [preliminary injunction] were denied by [district judge] I. Leo Glasser on 9-20 and the case was abandoned. Barbour v. Board of Elections, EDNY 01-cv-6216 (ILG).

Legislation was passed on 9-13 resheduling the primary (and liberalizing absentee voting and other things), on the authority of N.Y. Const. art. III, sec. 25, which provides that the Legislature, "in order to insure the continuity of state and local government operations in period of emergency caused by enemy attack or by disasters (natural or otherwise), shall have the power and the immediate duty . . . to adopt such . . . measures as may be necessary and proper . . . ." The legislation also provided that valid absentee and military ballots cast by 9-11 would be counted and that votes cast at polling places on 9-11 would not be counted. 2001 N.Y. Laws ch. 298, ch. 303.

So at least in New York, there is already state law authorization for the state legislature to take care of election interruptions.

George Bush as Peter Parker?

David Frum calls Spiderman 2 "the great pro-Bush movie of the summer." I'll at least agree with Frum that it was a great summer movie.

Update: A reader e-mails this comment:

Frum does seem to be stretching here. Last I checked Peter Parker was an orphan who is struggling to pay for college by delivering Pizzas. He's a scientifically gifted social outcast who has devoted his life to helping others. And Bush? Son of a president; grandson of Senator; born into huge money and the 2nd most powerful political family in the country; Andover, Yale, Harvard; proud to be a C student, consistently places religion over science, puts his financial backers interests above this alleged conservative principles, etc. And the Bugle is clearly the NY Post or Drudge. Moore may be an ass and a liar, but he's not a tabloid.
Fair points all.

Statutory Rape in Brazil: Yesterday's print WSJ contained a front page (middle column) story on a bizarre statutory rape case. Dr. Boadyr Veloso, a "politically prominent" physician, was convicted in 2000 for staturoy rape of seven girls, and sentenced to ten years and eight months in prison. In February 2004, however, Dr. Veloso was released and his sentence nullified. Why? Because all seven of the girls with whom he had sex had since married.

The law in Brazil apparently provides that a sex criminal's conviction can be nullified if his victim gets married. As explained by one politician quoted in the story, this law was adopted in the 1940s, when "a woman's destiny was marriage, and a woman who was raped lost her chance to fulfil that destiny. So marriage was seen as resolving the damage of sexual abuse." In other words, if a young girl is raped, the only harm is the reduced likelihood a man will wish to marry her. How offensive. How bizarre. At least one member of Brazil's legislature is seeking to have the law repealed.

The story includes other interesting details of Dr. Veloso's case: Several of the women involved were married under suspicious circumstances. Three of the women were married by the same justice of the peace on the same day, and then same official married three more just twelve days later. Dr. Veloso always maintained his innocence of all charges, yet there are also reports he paid some of the women to marry. For those interested, the story is "Convicted of Rape, Brazilian Doctor Finds Way to Remain Free," by Matt Moffett, WSJ, July 12, 2004, A1.

Update: I've added a post on rape law in the Phillippines here.

Update:Another reader e-mails this "sidebar" to the story: Prior to January 11, 2004, Brazilian law allowed a man to obtain an annulment in the first 10 days of the marriage if he discovered that his wife was not a virgin. Mt correspondent adds: "One wonders if Veloso's sentence would've been reinstated, had any of the husbands decided to annul their marriages." Indeed.

The Boston 9/11 election:

Reader David Smith reports that many people did leave work on September 11, because they wanted to be home, though that didn't seem to keep them away from the polls:

I live in Cambridge, work in Boston, run a small company, and was at my desk on 9/11. I remember the attacks clearly -- we turned on the office television. People were in quiet shock. Around 10:30 people started leaving their offices -- I could see them from my fifth floor window, on the streets, heading for subways and trains. There was a sense that we had no idea what would happen yet, and it seemed better to be home with loved ones and not in large buildings. Just because we did not know what better thing to do.

Perhaps people voted on their way home. Perhaps they voted in the morning before they knew the news of 9/11. (Voting is heavily clustered before 9 and after 5.) Perhaps they voted on a minor local issue because it was all such a shock that we could not interpret what to do next, and the minds were made up.

He also suggests that given the 9/11 shock, people won't be as shocked next time, and there'd be still less disruption of the election (at least in those places that aren't directly attacked):

All those facts would be different if, God forbid, a terrorist attack hit a day or two before the election. We are smarter now, wiser, we have seen things we wished not to see. We have had the Spanish 3/11 and its consequences. There would, in short, be not the same element of emotional shock. And so the Boston (or other) 9/11 voting experience is, in my view, not relevant to whether an election should be postponed in the event the unthinkable occurs.

May well be so.

An example of state law on postponement of elections:

A reader passes along this letter from the General Counsel to North Carolina's State Board of Elections summarizing the emergency powers given to the Executive Director of the State Board:

Dear Mr. Stephens:

Pardon for the delay getting back to you. Our office has just concluded a major statewide educational conference. Mr. Bartlett asked that I respond to your concerns.

The backbone of election disruption control is G.S. 163-27.1 set out below:

§ 163-27.1. Emergency powers.

The Executive Director, as chief State elections official, may exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following:

(1) A natural disaster.

(2) Extremely inclement weather.

(3) An armed conflict involving United States armed forces, or mobilization of those forces, including State National Guard and reserve components.

In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised. (1999-455, s. 23; 2001-319, s. 11.)

At this time, I would interpret a terrorist attack that adversely affects an ongoing election as coming within the meaning of "armed conflict" as set out in (3) above.

Your concerns as to the effect of terrorism prior to Election Day on voter turnout have a less clear solution. However, the sanctity of both the legal and historical general election date of the first Tuesday after the first Monday in November would weigh heavily against a delay of the general election based upon calamities that make it more difficult for voters to vote, either physically or emotionally. The certainty of election dates sets the Untied States apart from other countries.

Let's look at some of the elements that may effect this situation.

Approximately 10% of the voters vote in a general election during one stop-absentee voting that starts 19 days prior to the election and ends the Saturday before Election Day. Thus we must view the "slow calamity" disruption issue in the context that voters in North Carolina, and many other states, can vote on more than one day. And absentee by mail voting starts 50 days prior to Election Day.

A statewide primary election will cost about $4 million dollars, and the cost of a statewide general election will be around $5.5 million dollars.

A suspended election would involve extraordinary efforts to secure and protect ballots and voting systems. Issues arise as to the terms and conditions of resuming the suspended election.

A cancelled election means that voting systems would have to reprogrammed, and ballots reprinted. These activities are time and labor intensive as well as costly.

A suspended election or new election could prohibit winning candidates from taking office in a timely matter, allowing previous officeholders to hold over until the winning candidates are certified and sworn in.

In addition, North Carolina has some Section 5 counties under the Voting Rights Act, and all actions as to suspended or new elections would have to be precleared by the U.S. Justice Department, a procedure that can take up to 60 days.

As to your three suggestions, let me offer some positive news.

First, the counties are very aware of the situations that can cause Election Day disruption. We have had precincts closed due to bomb threats, gas leaks, ice storms, tornados, hurricanes, and flooding. The county board makes an analysis of the situation and requests a decision under GS 163-23.1.

Secondly, GS 163-23.1 is designed to have a quick response to a situation. Of course, the State Board is consulted over such issues. This agency starting in 2000 encouraged counties to have disaster and recovery plans on file.

Thirdly, Congress is currently dealing with the issues you note. You may want to review H.R. 2844 that deals with replacing members of the House of Representatives in cases of extraordinary circumstances. The entire issue of continuity of government is being addressed by the Continuity of Government Commission (a joint project of the American Enterprise Institute and the Brookings Institution). Go to their website at . They issued their first report in May, 2003.

This agency is currently considering suggesting to the General Assembly a clarifying amendment to GS 163-23.1 to clearly mention terrorism as a basis for emergency powers by the Executive Director.

Please be assured that this most difficult subject will continue to be a major active concern of our agency.

Don Wright

General Counsel

Monday, July 12, 2004

Pleasantly surprised:

I wrote earlier today that

I agree with Jack Balkin, though, that:

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death.

I would probably set the threshold somewhere below "not possible" and "dead bodies lying everywhere." On September 11, 2001, one shouldn't have conducted elections even in Boston, where elections were physically possible and no dead bodies were present, because I suspect that lots of people would have been scared away from the polls (at least for several hours) either by the shock of the event, or by the reasonable fear that there might be still more attacks that very day. Naturally, that's a judgment call, but a categorical delay of several days following a very serious terrorist attack — on the order of hundreds or thousands of deaths, especially coordinated in multiple places — would probably be wise. But in any event, the focus has to be on the risk that the election would be disrupted by lower turnout or difficulty physically conducting the process, not by people's views being influenced.

Well, reader Steve Jens points out that there was an election in Boston on September 11, 2001, a Congressional primary for a vacant seat. The turnout was apparently expected to be about 20%-25% (not unlikely for that sort of election). The election went on as scheduled, despite the attacks, and the turnout was 32%. I can't confidently say the attacks increased the turnout, but there's little reason to think they decreased the turnout. So perhaps Jack is right: If there's a September 11-scale terrorist attack in the area where a state or local election is held, that election should be postponed (as was done for an election scheduled for that day in New York), but if the attack is in a different area, the election should go on as planned. (One could argue that the vote will be distorted by the passions caused by the attack, but as I mentioned in my earlier post I tend to agree with Jack that this isn't reason enough to postpone the election.)

That still leaves the question of what to do with a major terrorist attack during a national election. I tend to agree with Rick Hasen that one should probably postpone the entire election, rather than hold a makeup election in just the affected area.

But in any event I'm pleasantly surprised, happy to have my hypothesis proven wrong, and thankful to Steven Jens for the correction.

I didn't know this was even possible:

The U.S. Court of Appeals for the Second Circuit, sitting en banc, just certified questions related to the constitutionality of the Sentencing Guidelines to the U.S. Supreme Court. So instead of a party's asking the Supreme Court to consider a question (via a petition for certiorari or, in some cases, an appeal), it's the Court of Appeals that's asking.

I didn't know this was possible. I knew federal Courts of Appeals could certify questions to those state supreme courts that allow this procedure, but I didn't know that they could certify questions to the Supreme Court. Some research reminds me that this was a normal procedure in the 1800s for deciding legal issues in criminal cases; since there was no provision for appeal in such cases, which were often heard by two-judge federal trial courts, the case would sometimes go up to the Supreme Court when the judges certified the question to the Justices (especially when the trial court judges were evenly divided). Learn something new every day . . . .

In any case, 28 U.S.C. sec. 1254(2) provides that the Supreme Court may consider a matter "By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy." The Court may refuse to answer the questions (see, e.g., Supreme Court Rule 19.3; In re Slagle, 504 U.S. 95 (1992); Foley v. Carter, 449 U.S. 1073 (1981); Atkins v. U.S., 426 U.S. 944 (1976) (with three Justices dissenting from dismissal of certificate)), and leave it for the Court of Appeals to do the work.

A quick search suggests that the practice was not unheard of (though producing only a tiny fraction of the docket) until the mid-1950s, but in Wisniewski v. U.S., 353 U.S. 901 (1957), the Court seemed to try to discourage the practice. The most recent case I could find in which the Court decided a matter certified to it by a Court of Appeals is Iran National Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981). Here's the heart of Court of Appeals' argument for certification (besides its argument that it's hard to tell what the recent Blakely v. Washington decision means for the Guidelines — if ceritification were proper whenever a Supreme Court decision led to confusion, then the Court would have to answer certified questions nonstop):

[W]e believe this is one of those "rare instances" when "the proper administration and expedition of judicial business" warrants certification of a question to the Supreme Court. Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences imposed since Apprendi was decided, but it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court. We are convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts — disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional tequirements.

And here's the circuit's plea for unusual speed:

We recognize that the current term of the Supreme Court has ended, but we respectfully request that the Court not only entertain this certification, but do so at its earliest convenience, with an expedited briefing and hearing schedule, cf. Dames & Moore v. Regan, 453 U.S. 654 (1981) (setting case for oral argument on June 24, 1981, after regularly scheduled arguments concluded, and deciding case on July 2, 1981); Iran Nat'l Airlines, 453 U.S. at 919 (answering certified questions seventeen days after in order to minimize, to the extent possible, what we see as an impending crisis in the administration of criminal justice in the federal courts.

And apparently the Court's initial decision whether to consider accepting the certificate will be made solely based on the Court of Appeals' arguments, without briefing by the parties; here's the relevant part of Supreme Court Rule 19 (emphasis added):

3. When a question is certified, the Clerk will notify the parties and docket the case. Counsel shall then enter their appearances. After docketing, the Clerk will submit the certificate to the Court for a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed. No brief may be filed until the preliminary examination of the certificate is completed.

4. If the Court orders the case briefed or set for argument, the parties will be notified and permitted to file briefs. . . .

I would guess, though, that given the unanimous request of the Second Circuit's judges, the Court would at least ask for briefing.

Thanks to Douglas Berman (Sentencing Law & Policy) for the pointer to the Second Circuit decision.

UPDATE: Marty Lederman (SCOTUSBlog) has more.

Minimum wage

This Steven Landsburg piece in Slate has prompted blogospheric commentary (Brad DeLong, Tyler Cowen, John Quiggin, others) about the core empirical/ policy claim: that minimum wage increases (at least of the scale that we've seen in the U.S. in the past couple decades) have at most a small negative impact on employment.

I have a question, not about the economics but about one of Landsburg's pieces of meta-evidence.

Twenty years ago, they'd have told you otherwise. Back then, dozens of published studies concluded that minimum wages had put a lot of people (especially teenagers, blacks, and women) out of work. As the studies continued to pile up, you might think we'd have grown more confident about their common conclusion. Instead, the opposite happened. Even though the studies were all in agreement, they managed to undercut each other.

Here's how: Ordinarily, studies with large sample sizes should be more convincing than studies with small sample sizes. Following the fates of 10,000 workers should tell you more than following the fates of 1,000 workers. But with the minimum-wage studies, that wasn't happening. According to the standard tests of statistical significance, the results of the large-scale studies were, by and large, neither more nor less significant than the results of the small-scale studies. That's screwy. Screwy enough to suggest that the studies being published couldn't possibly be a representative sample of the studies being conducted.

Here's why that matters: Even if minimum wages don't affect employment at all, about five out of every 100 studies will, for unavoidable statistical reasons, appear to show a significant effect. If you could read all 100 studies, that wouldn't be a problem—95 conclude the minimum wage is pretty harmless as far as employment goes, five conclude it's a big job-killer, you realize the latter five are spurious, and you draw the appropriate conclusion. But if the 95 studies that found no effect were deemed uninteresting and never got published, then all you'd see were the spurious five. And then the next year, another five, and the next year another five.

Even when the bulk of all research says one thing, the bulk of all published research can tell a very different and very misleading story.

How do we know what was in all the unpublished research about the minimum wage? Of course we don't know for sure, but here's what we do know: First, the big published studies were no more statistically significant than the small ones. Second, this shouldn't happen if the published results fairly represent all the results. Third, that means there must be some important difference between the published and the unpublished work. And fourth, that means we should be very skeptical of what we see in the published papers.

But if it were really the case that the minimum wage was employment-neutral, and that the studies finding otherwise were just statistical noise, then shouldn't they be equally distributed across pro-employment and anti-emplyment results? That is, the distribution should be: 95 (unpublished) studies showing no effect, 2.5 (published) studies showing a pro-employment effect, and 2.5 (published) studies showing an anti-employment effect. And surely the pro-employment-effect studies would get published; after all, they have a very interesting and policy-relevant counterintuitive result.

If, as Landsburg claims, the published studies are "all in agreement" about the direction of the effect, then the underlying distribution of studies can't be as he describes it, can it? Publication bias in favor of significant findings, superimposed on an actually-neutral relationship ought to generate equal numbers of ostensibly-significant findings in each direction.

The econo-bloggers all seem to think Landsburg is basically right about the consensus view among economists. But is that consensus view really based on the meta-analysis position he describes? If so, what's the explanation for the (according to Landsburg) absence of studies that randomly happen to show significant increases in employment?


John Quiggin answers, in an update to the same post linked to above.

Actually, the Card and Krueger study found weak positive impacts of minimum wages on employment using a data set where most of the obvious sources of bias had been removed. There may have been earlier studies with similar results, but they would almost certainly have been discarded, on reasonable grounds of weak statistical significance or omitted variable bias. By contrast, studies with similar weaknesses, but with the expected sign would have been published.


OpinionJournal's Best of the Web repeats an old math gag:

Let a=1

Let b=1

Therefore a=b

Multiplying both sides by a gives a^2=ab

Subtract 1 from the left and b (which equals 1) from the right: a^2-1=ab-b

If you remember your quadratic equations, this factors to: (a+1)(a-1)=b(a-1)

Dividing both sides by a-1, we have a+1=b, or 1+1=1

Therefore 2=1

Persuades me!


(Click here for the explanation.)

More on elections and terrorism:

Rick Hasen has more:

In this discussion, I think it is valuable to disaggregate a few different issues:

(1) Who should decide on whether an election should be postponed in the event of a terrorist strike? Jack Balkin's post makes it clear that, so long as we are talking about presidential elections, it is for Congress, not the executive, to make such decisions. This is both constitutionally mandated and politically wise. One caveat: Norm Ornstein and others have been focused on questions related to a catastrophic attack on Congress, and the need for a plan to select replacement members of Congress if necessary. If for some reason the terrorist attack would be directed at Congress, some backup plan might be necessary.

(2) Which criteria should be used to determine when a presidential election should be postponed? As blog readers know, I am a big believer in setting forth clear rules with as little discretion as possible for resolving election disputes before they arise. Some kind of mechanical rule seems desirable here. (Eugene Volokh suggests a few possible rules in his post.)

(3) If a terrorist attack occurs in one part of the United States, should the entire presidential election be postponed, or only the election in directly affected areas? Putting aside the problem of clearly defining which areas are "directly affected," the more fundamental question is whether Congress should use its powers in the event of an emergency to delay the election nationwide. As I mentioned earlier, fairness should dictate the entire election be postponed. Imagine a terrorist attack in a battleground state, where it would be impossible to hold an election on election day. The entire country besides this state votes on Election Day and either election results are announced by the other states or the media report on their exit polling. Such information could then sway votes and/or turnout in the battleground state on the date of the makeup election, and could thereby change the result the would have occurred had the entire country voted on the date of the makeup election. (Think of the Nader voters in Palm Beach County, voting on a hypothetical revote after the butterfly ballot fiasco.)

(4) Should a presidential election ever be postponed because of a terrorist attack that does not interfere with the ability of voters to cast votes? I think the early blogospheric consensus is that simple shock or grief would not be a legitmate reason for the postponement of an election.

Obviously these are difficult issues and ones with which some people would rather not deal. But prudence dictates thinking about these kinds of issues in advance whenever possible.

Again, I agree, especially as to item 2.


I'd forgotten about this entirely. Way back in July of 2001, my former professor Robert P. George made the first public argument I know of for the Federal Marriage Amendment. He doesn't claim to have originated it;

Pro-marriage activists are inclined to back an amendment that would read: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

But I had never heard of it before that, and I forgot about it pretty quickly thereafter. Most proposals for constitutional amendments put forward in opinion magazines can be safely disregarded. For that matter, most proposals for constitutional amendments altogether can be safely disregarded. And George is (as he would be the first to admit!) pretty far from mainstream legal thought or even mainstream Republican legal thought. This hardly seemed like the harbinger of a major constitutional fight, even in the pre-9/11 days when the idea of Congress wasting valuable time on a culture war shadow-boxing match wasn't so far-fetched.

There's a good reason I didn't go into one of the predictive subfields of political science, I guess.

(By the way: I see that George's interpretation of the amendment's second sentence is the same as the one Ramesh Ponnuru pressed in an online exchange several months ago. I respect George-- and Ponnuru-- a great deal, but I still can't see it. The second sentence appears to me to ban even the deliberate legislative creation of civil unions-- because the state law creating such unions may not be construed as to create them. Somehow, George assures us, language at this level of generality can be trusted to allow the extension of hospital visitation rights to same-sex partners while simultaneously prohibiting the extension of inheritance rights. Even if that were a normatively sensible distinction, I cannot see how the text of the FMA generates it.)

Naming a character after a famous person costs writer $15 million:

The St. Louis Dispatch reports (thanks to How Appealing for the pointer):

Tony Twist, the former rock 'em-sock 'em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist's name without his permission.

McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane's Spawn comics in the early 1990s.

In a case that could have broad meaning for artistic freedom, McFarlane insisted the name had literary value and his use of it was protected under the First Amendment, but Twist contended McFarlane had exceeded free speech rights. . . .

McFarlane's attorneys argued that his use of the name was protected and that no reasonable person would confuse the fictional character with the real person.

"The use at issue in this case is no different from Simon and Garfunkel's use of the name Joe Dimaggio in the song 'Mrs. Robinson,'" said Michael Kahn, one of McFarlane's attorneys. . . .

Kahn vowed to appeal the verdict "all the way."

Michael Kahn is absolutely right: This sort of literary device — which has been used by countless writers and filmmakers (Aldous Huxley, Steve Martin, Robert Heinlein, and many more) — should be fully protected by the First Amendment. In context, it's clear that the use is fictional, not an assertion of fact, so there's no viable defamation claim. And people (especially famous people) shouldn't have the right to stop others from alluding to them in works of fiction.

McFarlane had already asked the U.S. Supreme Court to consider the case (there has already been a trial and a Missouri Supreme Court decision in it; this trial is the retrial after the Missouri Supreme Court ruling). I filed an amicus brief on behalf of Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and the Authors Guild, Inc. supporting the petition for review — check out the brief (it's short and should be pretty readable) for my explanation of why McFarlane has a First Amendment right to do what he's done.

The Supreme Court refused to hear the case, but I think that may well have been because of the procedural posture — the Court is often reluctant to consider a case, even when the lower courts disagree on a legal question, when there has been no final judgment in the case below. Now that there has been a jury verdict, which the Missouri appellate courts will presumably affirm (since the Missouri Supreme Court has already considered the legal question), that procedural barrier will be absent if McFarlane asks the U.S. Supreme Court to consider the case again. So I think there'll still be a good chance of the Justices agreeing to hear the matter; and if they do, I'm quite confident that they'll hold for the author.

Easterbrook on Moore:

Gregg Easterbrook, writing in The New Republic online, states that Fahrenheit 9/11 contains fabrications and "classic propaganda" techniques meant to deceive the audience. OK. But Easterbrook also makes the bizarre claim that the movie "is exactly the kind of political speech the First Amendment was designed to protect." It seems obvious to me that the First Amendment was not designed to protect false and deceptive speech. No one would design a constitutional provision with such a goal in mind. Rather, deceptive (and to a lesser extent) false speech is protected as a necessary evil in the cause of protecting true and nondeceptive("good") speech. I, along with I think anyone else sensible (including James Madison in his day), would be happy to censor false and deceptive speech if we (1) had a reliable mechanism for separating it from "good" speech, and (2) could ensure that censoring deceptive and false speech wouldn't lead to a slippery slope culminating in the censorship of "good" speech disliked by the government.

"Another Libertarian For Kerry"

Over at Liberty and Power, Steven Horwitz writes that

I'm a "conscientious abstainer," and that if I were to vote, I would still vote Libertarian. However, if I was coerced into voting and could only vote for one of the two major party candidates, I think at this point I would, in fact, vote for Kerry. Or perhaps more accurately, as of now, I'll be rooting for the Democrats to win come November.[...]Bush has governed as a social conservative and a fiscal liberal - precisely the opposite of what a libertarian would like to see[...] In the end, I think a world with Kerry as president and a GOP-controlled Congress is the least of all evils. Gridlock rules!!![...]Consider this an argument for just how bad the Bush administration has been. I so cannot stand both Kerry and Edwards on a personal level - the thought of a smarmy, elitist, faux-child of the 60s paired with a greasy, blow-dried, trial lawyer is making me reach for a bucket - that the idea of even verbally supporting their victory fills me with immense psychic trauma. (Only Al Gore would be worse.) However, my analytical side tells me that little could be any worse than the incumbents and that the 90s showed the power of gridlock. So I swallow hard and silently root for a split decision. For now.

In comments, his co-blogger Sheldon Richman agrees. Steven also stresses the importance of trade, saying that if Kerry-Edwards "run as protectionists, my earlier calculus is upset... I would have a hard time even verbally supporting a presidential ticket that was willing to keep the third world immiserated for the sake of a few votes in swing states." Me, too.

Speaking of both trade and split decisions, I'm starting to look for Congressional races where there's a clear difference on trade, which of course is likely (not certain) to mean a Republican moral advantage. Anti-trade Senators are a real problem regardless of who sits in the White House; and anti-trade Senators from the Carolinas (of both parties) have been particular problems. So I'm taking a special interest in the South Carolina race between Republican Jim DeMint, who seems to have a surprisingly good record on both trade and spending, and Democrat Inez Tenenbaum, who is making traditional Carolina protectionism her central issue. DeMint is, unsurprisingly, on the wrong side of a lot of social-cultural issues; but a Senator can't do as much harm on those topics as on trade, especially if the Presidency is socio-culturally liberal. In worrying about the precise shape of the gridlock I'm rooting for, I may end up supporting DeMint as well as Kerry.

The November election and terrorism:

Leading election law expert Rick Hasen (Election Law) writes:

A number of blog readers (some with alarm) have sent me a link to this Newsweek report, which begins: "American counter-terrorism officials, citing what they call 'alarming' intelligence about a possible Qaeda strike inside the United States this fall, are reviewing a proposal that could allow for the postponement of the November presidential election in the event of such an attack, NEWSWEEK has learned."

Far from seeing this as some conspiracy to keep George Bush in power (as some blog readers have suggested to me), I think this is a good prudential step to take. A presidential election can be disrupted in a number of ways, and having voting take place on different dates across the country presents some serious fairness problems (you may recall this issue arose after the some called for a revote following the use of the notorious butterfly ballot in Palm Beach, Fla. last election).

As with all election law controversies, better to have rules set up in advance, so that no one can jockey for partisan advantage in the case of a hole in the rules after (part) of the election has taken place.

By the way, John Fortier and Norm Ornstein will have an article on presidential elections and terrorism (with a host of sensible suggestions for reform) in the October issue of the Election Law Journal.

UPDATE: Jack Balkin here notes some important issues regarding the respective roles of Congress, the executive branch, and the states in rescheduling an election in the event of a national emergency.

The devil is of course in the details, and the Newsweek piece is short on details. But my first reaction is the same as Rick's, if (as seems likely) the proposal would have a substantively clear cutoff (e.g., an attack involving at least X hundred deaths at least Y days before the election) or a procedurally clear one (e.g., some supermajority vote by some bipartisan body, though that poses some complex constitutional problems itself).

I agree with Jack Balkin, though, that:

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death.

[UPDATE: I think I was probably mistaken in this paragraph, for reasons given here.] I would probably set the threshold somewhere below "not possible" and "dead bodies lying everywhere." On September 11, 2001, one shouldn't have conducted elections even in Boston, where elections were physically possible and no dead bodies were present, because I suspect that lots of people would have been scared away from the polls (at least for several hours) either by the shock of the event, or by the reasonable fear that there might be still more attacks that very day. Naturally, that's a judgment call, but a categorical delay of several days following a very serious terrorist attack — on the order of hundreds or thousands of deaths, especially coordinated in multiple places — would probably be wise. But in any event, the focus has to be on the risk that the election would be disrupted by lower turnout or difficulty physically conducting the process, not by people's views being influenced.

CNN goof on Supreme Court's military detention decision:

Unlearned Hand points out this item:

[Edward] Lazarus said several unusual alliances were formed in many of the bigger rulings, where traditional liberal and conservative justices came together.

Such was the case of Yaser Hamdi, a Saudi Arabian man born in Louisiana. He was captured in Afghanistan in 2001, and eventually transferred to U.S. military custody, without access until recently to a lawyer. In the biggest ruling this term, the court said he deserved a hearing before a judge.

Moderate-liberal justice David Souter, as well as Breyer and Ginsburg sided with Hamdi, joining the more conservative Rehnquist, Anthony Kennedy and O'Connor. Supporting the government was liberal John Paul Stevens, joined by the two most conservative justices, Antonin Scalia and Clarence Thomas.

Uh, except that Justice Scalia, joined by Justice Stevens, wrote an opinion strongly opposing the government's position; Justice Thomas supported the government. I think the description of the other Justices' position is also somewhat inaccurate -- they supported Hamdi in concluding that he was entitled to some review of whether he's an enemy combatant, but supported the government in concluding that such review could be relatively deferential, for instance not requiring a jury trial or proof beyond a reasonable doubt -- but at least that's a judgment call. The mischaracterization of Justice Scalia's and Justice Stevens's position is clearly wrong.

Now I stress again: Errors are inevitable, even in the work of reputable news outlets. But this should be a further reminder not to believe everything you read, even in the major media, and even on objective matters where readers might expect there to be little dispute and little chance of error.

(I can't speak to whether the error was originally Lazarus's or CNN's -- I suspect the latter, but I'm not sure -- but even if Lazarus misspoke, CNN is responsible for the errors of the sources it cites, especially when the information is easily verifiable.)

Note that the story is time-stamped Tuesday, July 6, so either CNN hasn't noticed the error, or decided not to correct it.

Famous European scientists and inventors, by country:

Here's the puzzle for the week: For each of the following European countries or areas (basically those that now have a population of 4 million or more) — Austria, Belarus, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, England, Finland, France, Germany, Greece, Hungary, Italy, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Serbia, Spain, Sweden, Switzerland, Ukraine — name at least one really famous (in America) and important scientist or inventor who was born there (that is, within its modern boundaries), who worked most of his life there, or who is culturally identified with the nation (even if he lived in a colony or a place that is no longer in the country). Also, include people for any of the smaller countries, if you can think of them. It's surprisingly hard for some countries, even some big and formerly prominent ones, notably Spain.

I have my current list hidden below. If you have some names for the countries that are not yet filled in, please e-mail them to me at volokh at Please include a URL of a page that confirms the person's affiliation with the country. Please do not send me more names for countries for which people are already included (unless the included people are all somewhat iffy, generally because they may equally be claimed by another country). Please also do not send me messages arguing that Armenia, Azerbaijan, Georgia, Kazakhstan, Turkey, Uzbekistan, or Wales should be included.

The test of a famous person: I must have heard of him. Here I represent the typical American layperson who is not a scientist, but who likes science enough that he pays attention to relatively prominent scientists. (It helps, fairly or not, if the person has something named after him.) Special proviso for people now living or recently dead: There must be good reason to think they'll be famous a century from now.

The test of an important scientist or inventor: Entirely subjective, though if a scientist or inventor is still famous a century or more after his death, that's a good sign that he's important. Note, though: For inventors the invention has to be something pretty novel; for instance, much as I like my Glock, Gaston Glock doesn't count, even though his name is famous. Likewise for Porsche, or the Belarus-born Sukhoi, whose name is famous among military aircraft buffs (a line of Soviet warplanes are named after him). As I said, lots of arbitrariness here.

(Click here to show list.)

Sunday Song Lyric: "Get Born" by Jet has to be one of the best rock debut albums in quite some time. You can hear their influences (Rolling Stones, the Kinks, AC/DC, Oasis) throughout the album, yet it remains fresh and new. The lyrics aren't the most profound, but they work with the music. This is true rock and roll done well, so it's about time I posted a Jet song as the Sunday Song Lyric. Since "Are You Gonna Be My Girl" and "Cold Hard Bitch" get so much radio airplay, I thought I'd post "Lazy Gun" instead:
Lazy Gun messed up my television yeah
You get no Younger from those colours in your hair
Teach your kids how they're all young enough to fight
Talk about the answer
Tell them they're alright

Change Nothing
Futures in
Close the door
Wear a name
Be the same
Take some more

Lazy gun messed up my television fun
Shoot the shotgun but the war is never won
Who's the enemy, who's sucking on my sun?
I'm the only one left now you've taken all my fun

Change Nothing
Futures in
Close the door
Wear a name
Be the same
Take some more