Saturday, August 14, 2004

TWO NEW FTC COMMISSIONERS AND THE NATIONAL DO-NOT-CALL REGISTRY: Debbie Majoras takes over as Acting Chair of the FTC, along with Jon Leibowitz. Both are very able lawyers and people of great character, smarts, and integrity. Which will be needed, of course, to help the Commission recover from the "Zywicki interregnum." Seriously, Majoras and Leibowitz are excellent choices to continue the amazing successes of the FTC over the past few years, under the leadership first of my new colleague Bob Pitofsky and then my old colleague Tim Muris. As recess appointees they can serve until 2005. The Post has an article today.

And a word on the National Do-Not-Call Registry, which is mentioned in the Post as being a "big government" initiative, and as such, has been criticized by many libertarians and conservatives. I believe the criticism is misplaced--the DNC registry is simply law & economics in action. It took an ambiguously defined property right (when can telemarketers call you), defined it clearly (telemarketers can call you whenever they want to), and provided a low-cost way of reallocating the property right (register on the DNC). Thus, it is nothing more than the Coase Theorem in action.

But even more, the DNC is actually the first example I can think of that illustrates a Contracts principle of an efficient minoritarian default rule. Usually contract default rules are allocated so as to create a majoritarian default rule (i.e., what the majority of people would want). Based on the registration numbers, a majority of Americans want to be free from telemarketing calls. So why not make the default rule "no calls" and make the telemarketers get your permission? Leaving aside the logistical problems (Would calling you to ask you if you want to be called count as a telemarketing call?), the minoritarian default rule is efficient because the transaction costs of reallocating are so munch lower for consumers than for telemarketers, especially because the FTC made registration so easy.

So the government was just creating and enforcing contractual transfer of property rights in an area where rights were unclear--what is so wrong about that?
EXCELLENT ART EXHIBIT IF VISITING DC: If you are visiting DC in the next few months, there is an excellent exhibit at the National Gallery of Art on "Hudson River School Visions: The Landscapes of Sanford R. Gifford." I've admired the Hudson River School for some time, but will confess to be a bit of novice; nonetheless, I had never heard of Gifford previously, but really enjoyed this exhibit. There was a good review in yesterday's Washington Post, but for some reason the Post has decided to refine its article search function so that it doesn't ever actually find articles any more, which seems like a curious innovation.

And, of course, the baseball exhibit is still around for a few months too.

Friday, August 13, 2004

Victims of Communism Memorial:

Tim Sandefur (Freespace) has more on this.

Is downloading obscenity constitutionally protected?

In Stanley v. Georgia (1969), the Supreme Court held that private possession of obscenity (i.e., hard-core pornography) is constitutionally protected, partly because of the sanctity of the home. This happened at a time when the distribution of obscenity was thought to be constitutionally unprotected; and when in 1973 the Court confirmed that distribution of obscenity was unprotected, Stanley still remained good law. It has not been overruled or seriously questioned since (though private protection of child pornography can indeed be outlawed, see Osborne v. Ohio; I set aside child pornography for the purposes of this post).

OK, so the next question: Does it follow that, because you may not be punished for merely possessing obscenity at home, you also may not be punished for buying it to consume at home? The answer is pretty clearly "no" -- and, what's more, U.S. v. Orito (1973) held that you don't even have the right to transport it yourself for your own consumption. So buying it and taking it home with you can be made a crime, and even taking it with you to your new home when you move can be made a crime. (This means that a prosecutor who really wants to go after a possessor might be able to prosecute him for buying, and use the possession as powerful evidence that at some point it must have been bought and transported to the buyer's home; I'm not sure how successful such a theory would be -- it may be the case that the prosecutor might have to prove more details of the illegal purchase, such as where it took place, which he couldn't do simply based on possession alone, but I'm not positive about that.)

Likewise, United States v. Kuennen, 901 F.2d 103 (8th Cir. 1990), and United States v. Hurt, 795 F.2d 765 (9th Cir. 1986), both held that buying such material by mail can likewise be made a crime, citing Orito. (I suspect the buyers were prosecuted because the material actually was child pornography; I suspect the federal government wasn't that interested in pursuing individual buyers of adult hard-core porn. But the defendants were prosecuted under general obscenity laws, and the logic of the cases isn't limited to child porn.)

One can, of course, argue that downloading porn into your home should be treated more like mere possession, and less like transportation or even mailing, since the electronically downloaded material isn't physically available outside the home. It's a weird distinction to draw, but this field is full of weird distinctions. My guess is that most courts won't buy that distinction, and will hold the initial downloading to be punishable even though the subsequent possession is not.

In any event, that's why in my post below, I noted that it's possible that people could be prosecuted for downloading obscenity into their own homes. But fortunately that seems to be a pretty academic question right now, since few prosecutors seem likely to be interested in going after private buyers in such situations (again, unless child pornography is involved).

License to access pornography:

I am, I suspect, one of the few people in America who had a license to access pornography. Our rarity comes from the fact that most people in practice don't need such a license: In theory, accessing obscene material on the Web, even from your own home, might subject you to criminal liability (that's an open question), but in practice no-one is going to prosecute you for that. (The main exception is if you're trying to access child pornography -- but there, licenses to access child porn are scarce because the government isn't interesting in handing any out, though of course some enforcement officials must be authorized to access such material in the course of their enforcement duties.) In any event, I like to think that the scarcity makes my license extra super-duper cool.

In Fall 2001, I was visiting at the George Mason University law school, which is a Virginia state public institution; and Virginia at the time had a law saying that state employees can't use state-owned computers to access porn (not just constitutionally unprotected obscenity or child pornography, but also otherwise protected sexually explicit material) unless their agency head certified that they needed to do so for work reasons.

As it happened, I was working on some material related to cyberspace, pornography, and the First Amendment, and actually did have to access some such sites for work reasons (for instance, to confirm examples of misleading domain names such as, as well as examples of "mousetrapping" sites that made it hard for you to effectively close the window in which they were opened). The dean, a very reasonable and pleasant fellow (and a friend of mine), promptly gave me such a letter -- I just ran across the letter in unpacking from an office move, which is prompting this message. I now cherish it as the rare document that it is.

Update on NYT Privacy Story: On Tuesday, I wrote a post about the questionable New York Times privacy story from July 30th involving the disclosure of Census Bureau information to the Department of Homeland Security. As I noted then, the story oddly did not mention the fact that all of the information disclosed was already publicly available from the Census Bureau website.

   I e-mailed my post to the Times Public Editor, Daniel Okrent, and received a call yesterday from the author of the Times story, Lynette Clemetson. She informed me that her original version of the story noted that all of the information was publicly available. Unfortunately, however, a copy editor cut down the story (apparently for space reasons), and took that paragraph out. As a result, the story went to press missing the part about the information being publicly available.

  The Times has another story on the disclosure today, available here. Today's story clearly states that the information was publicly available.
ACS blog on Medical Cannabis case: Yesterday, the government filed its brief in Ashcroft v. Raich, the medical cannabis case I have been litigating, which is now before the Supreme Court. It contained no surprises but it continues to be disappointing to witness a Republican administration so completely uninterested in federalism (just as it was disappointing when the Clinton Justice Department brought suit in equity to shut down the Oakland Cannabis Buyers Cooperative, another pro bono client of mine). I realize that disappointment is only an appropriate response if one expects something better or different, and I do know better. Federalism diminishes the power of whichever party controls the Congress or Presidency or both. (And elected Democrats apparently do not think they can afford to look soft on drugs.) But it is still sad--and yes even a bit disappointing--that neither of the two major national parties has any genuine convictions in support of a principal so central to our constitutional system.

Along these same lines, today the American Constitution Society has this post up about Ashcroft v. Raich on its blog:
In the wake of Morrison, Senator Joseph Biden compared the new federalism to the pre-New Deal Lochner era:
"In both eras, the Court adopted these formalistic distinctions in interpreting the Commerce Clause in service of broader political theories shared by a majority of the Court's members. In the pre-New Deal era, that broader political theory was laissez faire economics; now it is the new federalism. In both instances, the Court has been eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business."
Raich has given the Rehnquist majority an opportunity to prove Senator Biden wrong. By affirming the Ninth Circuit's decision, the Court will demonstrate an ability to uniformly interpret the Constitution, even when they dislike the outcome.
And so we shall argue.

Update: SCOTUSBlog has posted the SG's brief here.

Panel chosen for D.C. Circuit's Second Amendment case:

Stop the Bleating (note the connection to the American Shepherd post below) reports. Take the speculation about the judges' likely preferences with a grain of salt -- it is, as the blogger makes clear, indeed sheer speculation, and it's quite hard to infer judges' views on this question from their general political leanings.

More on Bloomington Pantagraph v. Michael Moore:

Last week, I posted this item (go to the earlier post to see the links):

I've had the nastygram sent by the Pantagraph to Michael Moore, complaining about Moore's alleged partial fictionalization of a Pantagraph headline put up here. (The page will disappear soon, so you might want to avoid linking directly to that page; before that happens, I'll copy it to a permanent home and update this post accordingly, but I'm on the road now and can't do that.)

Moore's Fahrenheit 9/11 apparently portrayed the Pantagraph as saying, in a large headline accompanying a Dec. 19, 2001 news story, "LATEST FLORIDA RECOUNT SHOWS GORE WON ELECTION"; the Pantagraph says that this was a caption accompanying a Dec. 5, 2001 letter to the editor, and thus just the newspaper's summary of what the letter was saying, rather than the newspaper's characterization of the actual news. . . .

Moore's lawyers have apparently now responded; I haven't seen a copy of their letter, but here's the excerpt from the Pantagraph's latest article on this:

New York-based lawyer Devereux Chatillon of the law firm Sonnenschein Nath & Rosenthal sent the letter to J. Casey Costigan, the Bloomington attorney representing the newspaper. . . .

[T]he letter claims Moore did nothing "misleading" when the headline ("Latest Florida recount shows Gore won election") that originally appeared above a Dec. 5, 2001, letter to the editor was altered in both the font and size of the type for the movie and made to look like a news story from a Dec. 19, 2001, edition of The Pantagraph. . . .

Hmm -- seems to me that quoting a headline to a letter to the editor without making it clear that it came from the letter-writer is indeed misleading; the reasonable viewer would assume that the newspaper is endorsing the assertion, rather than simply characterizing it. I can certainly see why a lawyer contemplating litigation would refuse to make such a concession; but it seems to me that self-described documentary creators should be held to a somewhat different standard.


Nick Gillespie (Reason's Hit & Run) reports on the Department of Homeland Security's new mascot:

Reports USA Today:

Starting next month, children in grades 4 though 8 and employers nationwide will be asked to help get families and companies better prepared to respond to a crisis.

In schools, on the Internet and in TV and radio ads, youngsters will be introduced to a new Homeland Security mascot: a dog (an American shepherd) that will be named in a contest. The campaign, using the dog and a set of Ad Council advertisements, will encourage families to develop an emergency plan and talk about where kids should go, who will pick them up and how they will make contact.

. . . [T]here exists some real questions as to whether there is in fact an "American shepherd" breed of dog. There is something called the American Tundra Shepherd, a mix of the Alaskan Tundra Wolf and German Shepherds (those German Shepherds have ways of making you talk).

(Go to the Hit & Run post for links.)

So here's my question (one about symbolism, but the whole point of mascots, whether Lions or Banana Slugs, is symbolism): If the Homeland Security mascot is an "American shepherd," what does that make us?

UPDATE: Reader Mike Zorn points to a site describing American Shepherd White. And, come to think of it, the tundra is kind of white, too. Aha! Now the truth comes out — it's a sinister racist plot.

Obfuscatory Defenses of Affirmative Action: A troubling element of affirmative action as currently practiced is the refusal of many who practice and defend it to acknowledge what that current policies, especially in universities, require significant racial preferences. Instead, they claim that affirmative action serves as a mere "diversity" tiebreaker among essentially equally qualified applicants. A case in point is a recent article by Yale Law professor Robert Solomon, who writes the following:
I can't speak for others, but I do believe in diversity. Let me explain what that means, since you seem to think it means that white men are disadvantaged. That's not what it means, although diversity does mean that white men from privileged backgrounds now have to earn their admission, which was not always the case, and that women and people of color and people with interesting backgrounds now get to compete on equal footing. Since the grades and LSAT scores are so similar, most of us look at other things, like essays and extra-curricular activities and jobs. When all of this is done, the largest group is white men.
This is just false. While I don't have any data for Yale, I do have data for two other top 10 law schools, Boalt and Michigan, from the mid-1990s (there is no reason to believe the data has changed much since then).

1996 was the last class at Boalt Law School before Prop. 209 affected admissions. The entering students's stats were as follows (source: American Lawyer, November 1997):

LSAT(%ile) GPA
Nonminorities 168 (96.9) 3.72
Asian 166 (95.0) 3.71
Hispanic 159 (80.5) 3.50
Black 155 (67.0) 3.54

Similarly, we learn from the district court opinion in Grutter v. Bollinger that in 1995, another top ten state law school, the University of Michigan, had the following statistics: white students had a median LSAT score of 167 and a median GPA of 3.59, while the corresponding figures were 155 and 3.18 for African American students, and 159 and 3.35 for Mexican American students.

More generally, statistics show that annually only a handful of African American students have scores that would remotely qualify them for Yale admission under the standards applied to whites. For the 1996-97 admissions year, only sixteen (self-identified) African Americans nationwide had an LSAT of at least 164 (92.3 percentile) and a GPA of at least 3.50, compared to 2,646 whites (source: American Lawyer). The median scores of entering students at Yale, meanwhile, are somewhere around 171 and 3.9.

There is simply no statistical possibility that the grades and LSAT scores of African American matriculants to Yale are "so similar" to the scores of white matriculants that diversity is used as a factor akin in weight to essays, extracurricular activities, and work experience.

I think affirmative action is a complex issue, and racial preferences in universities can plausibly be defended on social justice grounds (and "diversity" grounds as well). And the article that Solomon was responding to, by a white male student afraid he wouldn't get into a good grad school because of affirmative action, was somewhat silly. For example, even if top law schools implicitly reserve 15 or so percent of their slots for minority students, that still leaves 85% of the slots available for white students. The vast majority of white students rejected from such schools would have been rejected regardless of affirmative action.

But the entire debate over affirmative action has been poisoned by the failure of its advocates to acknowledge what it really means in practice (O'Connor, in Grutter, studiously avoided this herself). Some schools might not be able to successfully defend their racial preferences in the court of public opinion. On the other hand, if universities were more candid in their acknowledgment and defense of racial preferences in admissions, they might be able to develop a stronger constituency in favor of the preferences. Moreover, a frank acknowledgment by elite universities of the difficulty in finding African American (and to a lesser extent, Latino) applicants meeting the schools' regular standards might lead to some useful national soul-searching regarding the inferior educational opportunities given minority students.

Seen yesterday in my neighborhood: "Other than eliminating Slavery, Fascism, Nazism, and Communism, what has War ever accomplished?"

Thursday, August 12, 2004

A stray cert pool memo?

Warning: Will only be of interest to the very few readers who are familiar with cert pool memos.

Nonunanimous juries:

Slate's Explainer has a nice item explaining nonunanimous criminal juries, which have indeed been held to be constitutional. I'd just add two small items:

  1. The Sixth Amendment has been read as mandating unanimous juries in federal courts, though not state courts (one of the relatively few ways in which the Bill of Rights has been seen as applying differently to state governments via the Fourteenth Amendment than to the federal government). See Justice Powell's separate concurrence in Apodaca v. Oregon, which was the controlling opinion on this question.

  2. Even in state court, unanimity is required if a state uses 6-person juries. See Burch v. Louisiana. Six angry men (out of six) are enough, but five won't do.

S.F. mayor not entitled to conduct same-sex marriages:

So holds the California Supreme Court, in an opinion that I'm just starting to read. Here's Howard Bashman's (How Appealing) summary:

The vote on declaring previously performed marriages void was 5-2; the court was unanimous in holding that the Mayor of San Francisco lacks the power going forward to allow same-sex couples to marry in violation of existing California law. As a small consolation, same-sex couples whose marriages are dissolved as a result of today's ruling are entitled to a refund, upon request, of all marriage-related fees that they have paid.

And here's the court's introduction:

We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California's marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman. The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official's view that they violate the Second Amendment of the federal Constitution. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner's ability to obtain a building permit for a development that interferes with the public's access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated "taking" of property in violation of the just compensation clause of the state or federal Constitution.

Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative January 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses (see Fam. Code, § 297.5, added by Stats. 2003, ch. 421, § 4)), and a local official — perhaps an officeholder in a locale where domestic partnership rights are unpopular — adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official's view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22, the California Defense of Marriage Act (Fam. Code, § 308.5) without a confirming vote of the electorate, in violation of article II, section 10, subdivision (c) of the California Constitution.

As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue — the scope of the authority entrusted to our public officials — involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being "a government of laws, and not of men" (or women). . . .

To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California's statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue. We hold only that in the absence of a judicial determination that such statutory provisions are unconstitutional, local executive officials lacked authority to issue marriage licenses to, solemnize marriages of, or register certificates of marriage for same-sex couples, and marriages conducted between same-sex couples in violation of the applicable statutes are void and of no legal effect. Should the applicable statutes be judicially determined to be unconstitutional in the future, same-sex couples then would be free to obtain valid marriage licenses and enter into valid marriages.

The second to last paragraph may be controversial, and probably should be: There's a good argument that all government officials should have an independent duty to follow the state and federal Constitutions as they understand them — at least absent a clear court order to the contrary — and not just do what they think (rightly or wrongly) is unconstitutional simply because no court has yet held it unconstitutional. On the other hand, the California Constitution does have a special provision on this point (art. III, sec. 3.5) that supports the California Supreme Court's position if one treats city officials as an "administrative agency," "An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional. . . ." [UPDATE: I've just finished reading the opinion, and it turns out that the California Supreme Court does not directly rely on this provision, and thus doesn't decide whether city officials are administrative agencies. Rather, the court holds that executive officials even in the absence of art. III sec 3.5 have a duty to follow statutes unless they've been held unconstitutional by a court (subject to a few exceptions not applicable here).]

But in any event, I think the court's introduction is pretty effective rhetorically, both accurately describing the legal issue for readers, and defending it against some of the most obvious political criticisms. If I were writing a textbook on judicial rhetoric, I'd probably include this as a good example.

Book Reviews:

The latest issue of Engage: The Journal of the Federalist Society Practice Groups, is now online in PDF format. Among much else of interest, it contains reviews of Eugene's Academic Legal Writing (PDF page 159) and my You Can't Say That! (PDF page 154).

Patriot Act Error in Dahlia Lithwick's NYT Column: In her latest guest column in the New York Times, Dahlia Lithwick has fallen for one of the often-alleged-but-still-false claims about the Patriot Act. She writes:
  [W]hile I'm not reflexively opposed to the entire Patriot Act, two provisions do serve more to quell protest than terrorism.
  One section invented a broad new crime called "domestic terrorism" - punishing activities that "involve acts dangerous to human life" if a person's intent is to "influence the policy of a government by intimidation or coercion." If that sounds as if it's directed more toward effigy-burning, or Greenpeace activity, than international terror, it's because it is. International terror was already illegal.
  I hear this one all the time. The trouble is, it's not true. The Patriot Act does not create a crime of "domestic terrorism." In fact, there is no such crime. The Patriot Act created a statutory definition of the phrase "domestic terrorism" in 18 U.S.C. 2331(5), which was added to the preexisting definition of "international terorrism" found in 18 U.S.C. 2331(1). The Patriot Act created this statutory definition to provide a common meaning for the use of the phrase "domestic terrorism" whenever it is used in the United States Code, for whatever reason. The definition states:
the term ''domestic terrorism'' means activities that -
  (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
  (B) appear to be intended - (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;
  (C) occur primarily within the territorial jurisdiction of the United States.
  Perhaps, as an abstract matter, this definition is too broad; I tend to think it is. But since it's only a statutory definition, not a crime, the question is how the definition is used. As far as I know, the definition of "domestic terrorism" is used in the context of substantive criminal law only in one statute, 18 U.S.C. 1028. This statute prohibits identity document fraud, such as making fake IDs. The part about domestic terrorism doesn't actually expand the scope of criminality in this statute. Rather, it allows a court to impose a higher statutory maximum penalty if an act of identity document fraud "is committed to facilitate an act of domestic terrorism." As a result, making a fake ID for a college student is punished with a relatively small sentence; making a fake ID to further a terrorism crime is treated more seriously.

   Maybe it's just me, but that doesn't "sound[] as if it's directed . . . toward effigy-burning, or Greenpeace activity[.]" It's an interesting irony, though; a number of the claims that the Patriot Act chills speech are based on the erroneous belief that this statutory definition is a criminal prohibition. Strange, isn't it?

  P.S.: If "domestic terrorism" is used elsewhere in defining a criminal law under the Patriot Act and I am just missing it, please let me know. I ran a Westlaw "USC" database search for the phrase, and Section 1028 was the only relevant section that popped up.

  UPDATE: Readers Marty Lederman and Doug Klunder write in to note that although "domestic terrorism" is not a crime, the definition does have some important implications in the context of evidence collection and dissemination and civil forfeiture. (I missed these at least in part because I ran my query for "domestic terrorism," and the Code often uses the phrase "domestic and international terrorism" -- joining domestic terrorism and international terrorism -- instead.) For example, 50 U.S.C. 403-5d allows for the sharing of information relating to acts of "domestic terrorism" gathered in criminal investigations to other areas of government:
[I]t shall be lawful for information revealing a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, obtained as part of a criminal investigation to be disclosed to any appropriate Federal, State, local, or foreign government official for the purpose of preventing or responding to such a threat.
  The most troubling use of the definition appears to be in the civil forfeiture context. 18 U.S.C. 981(g) expands the civil forfeiture statute so that assets "of any individual, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization" are subject to forfeiture. I wold have to look at this more carefully to know for sure, but at first blush it does seem like a troublesome use of the "domestic terrorism" definition. I'm generally unenthusiastic about broad civil forfeiture laws, even if rarely or never enforced, and this one seems particularly broad.

Wednesday, August 11, 2004

OH CRIMINY (AGAIN): What's with ESPN these days? First, the Scrabble meltdown, now this--"Browns Quarterback Jeff Garcia says a comment made by ex-teammate Terrell Owens implying that he is gay is ridiculous and untrue." I just hope it doesn't disrupt Garcia's performance for my fantasy football team (I had injury-prone underachieving TO last year).
Correlation, the Wall Street Journal, and Embarrassment:

There is a remarkable op-ed in the Wall Street Journal today. It's called "Kerry Up, Markets Down." (You can view it at,newsID.21046/news_detail.asp. For some reason, powerblogs is not letting me insert links.) In it, the author notes that there has been an inverse relationship between the S&P 500 and the value of a "Kerry wins" futures contract in the Iowa Electronic Market. In other words, a greater perceived likelihood of Kerry winning has been associated with lower prices on the stock market. On this basis, the author confidently states that "Financial market developments have advanced enough that we can now evaluate what the markets think about a candidates promises. If equity markets had a vote, it seems they would cast it for President Bush."

At the outset, it bears noting that this could be coincidence. The author acknowledges that possibility and then dismisses it, relying on his contention that "the economic news has been generally upbeat in the first half of 2004." Holding aside the debatable characterization of the economic news as upbeat, doesn't market theory emphasize that traders are very good at predicting such developments, so that we should have expected stock prices to incorporate the expected good news months ago?

But the real problem is that if there is a strong correlation here (as seems plausible), an obvious hypothesis is that the author has the causation backwards: when the markets decline, savvy political traders judge that Kerry has a better chance of winning. The markets, after all, both reflect economic activity — and expectations — and directly affect the wealth of millions of voters. Decreases in stock prices make people feel less wealthy and send a signal that the economy may not be doing so well. It seems rather obvious that both the reduction in wealth and the signal would tend to hurt the party in power, and help a challenger.

This hypothesis seems so obvious that I feel silly explicating it at any length. Yet the op-ed ignores it entirely.

The op-ed's hypothesis is also possible. The same is true of the hypothesis that the markets decline for non-Kerry reasons but recognize that this helps Kerry and so decline more; but the same is also true of the hypothesis that the markets decline for non-Kerry reasons but recognize that this helps Kerry and so decline less (i.e., that the decline would be greater if it did not help Kerry).

I recognize, of course, that one is not obliged to respond to every counter-argument in an op-ed. But the possibility that the market's decline is causing Kerry to rise, and not the reverse, seems sufficiently obvious that the failure to consider it makes the op-ed a bit silly. Or maybe this a witty parody — the author is actually a Kerry supporter who wrote an op-ed that was such an unpersuasive partisan hack job that it would discredit the intelligence and good faith of Kerry's opponents. Those Kerry supporters sure are clever — and subtle.

WINE WARS, PART 3--THE DORMANT COMMERCE CLAUSE: As noted in Wine Wars, Part 2, nothing in the text of the 21st Amendment specifically repeals the dormant Commerce Clause, nor does it specifically repeal only the dormant Commerce Clause and no other provision of the Constitution. Nonetheless, some conservatives have argued that the dormant Commerce Clause is not "in" the Constitution but is rather a figment of the judicial imagination made up by the Supreme Court. So as a result, all the 21st Amendment supposedly does is make this judicial gloss inapplicable in the context of the 21st Amendment. This view is hinted at in the opening line of Judge Easterbrook's opinion in Bridenbaugh v. Freeman-Wilson, "This case pits the twenty-first amendment, which appears in the Constitution, against the `dormant commerce clause,' which does not."

Moreover, I have heard many conservatives insist that Justices Scalia and Thomas do not believe in the dormant commerce clause, so that all the 21st Amendment supposedly does is repeal this illegitimate judicial usurpation of state authority. This view is incorrect on many grounds. First, it proves too much, in that it would repeal any supposedly nontextual right or power, regardless of its history or foundation in the structure of the Constitution. Second, it conflates two different prongs of the dormant Commerce Clause, the well-established nondiscrimination principle and more controversial balancing test of Pike v. Bruce Church.

First, a primary purpose of the Constitution was prohibit the states from engaging in the type of protectionism and economic warfare the prevailed under the Articles of Confederation. "If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints." Gibbons v. Ogden, 22 U.S. 1 (1824) (Johnson, J., concurring). Indeed, concerns about state protectionism "the immediate cause, that led to the forming of a [constitutional] convention." Gibbons, 22 U.S. at 224. Madison himself justified the grant of Commerce Clause authority to the federal government as, "[growing] out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves."

Moreover, it is not sufficient to simply argue that ambiguous textual commands (such as section 2 of the 21st Amendment) should trump constitutional constructions just because they are nontextual. If this were so, then it would mean, for instance, that the 21st Amendment would repeal the incorporation doctrine, or the so-called "reverse incorporation" doctrine of Bolling v. Sharpe. Indeed, this would mean that the 21st Amendment would also repeal cases such as McCullough v. Maryland in the context of alcohol. Indeed, this rationale would render the unwritten doctrine of Marbury v. Madison itself invalid in cases involving the 21st Amendment. There is no indication that the framers of the 21st Amendment intended these absurd result, and it would be contrary to all accepted principles of constitutional interpretation to infer such absurd results absent some congressional indication to the contrary. In fact, as Justice Brennan observed in North Dakota,the Court has "never held" that regulations affecting the importation and transportation of alcohol "are insulated from review under the federal immunity doctrine [as established in McCullough] or any other constitutional ground, including the dormant Commerce Clause."

Second, the hostility of some conservatives to the dormant Commerce Clause is based on a confusion between two different prongs of the dormant Commerce Clause, the nondiscrimination principle on one hand, and the balancing test of Pike v. Bruce Church on the other. Under Pike, the Court weighs the benefits of the state regulation against the costs it imposes on interstate commerce. Scalia has properly criticized this doctrine as lacking intellectual coherence and of turning the court into a super-legislature weighing the policy wisdom of state enactments.

Although Justice Scalia has consistently criticized the Pike balancing test, he has consistently recognized the nondiscrimination principle. Writing the opinion for the Court in New Energy v. Limbach, for instance, he wrote, , "It has long been accepted that the Commerce Clause ... directly limits the power of the States to discriminate against interstate commerce. This `negative' aspect of the Commerce Clause prohibits economic protectionism - that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." New Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

More precisely, Scalia concurred in Healy, noting that even though the price scheme there dealt with alcoholic beverages, the 21st Amendment did not save it, "since its discriminatory character eliminates the immunity afforded by the Twenty-first Amendment."

Justice Thomas has also questioned the textual foundation of the dormant Commerce Clause, but he has not questioned the constitutional foundation of the nondiscrimination principle. In Camps Newfound, for instance, he trashes the dormant Commerce Clause, but makes clear that he would still apply the dormant Commerce Clause, just doing so under the Import-Export Clause, which he would apply to interstate commerce as well foreign trade. Thus, he says, "our rule that state taxes that discriminate against interstate commerce are virtually per se invalid under the negative Commerce Clause may well approximate the apparent prohibition of the Import-Export Clause itself." 520 U.S. at 636.

Thus, although Scalia and Thomas would both abandon the balancing test of Pike, it is clear that they both believe that the ban on protectionism is well-grounded in the Constitution, although Thomas would anchor it in the Import-Export Clause instead of the dormant Commerce Clause. (As an aside, Cass Sunstein offers an interesting and persuasive defense of the Pike test, rooted in the nondiscrimination principle. Sunstein argues that where the burden on interstate commerce of a regulation manifestly outweigh the benefits, this supports an inference that the real intent of the law is protectionism and thus unconstitutional. Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1689-92 (1984)).
Oh, criminy:

The San Francisco Chronicle reports:

It wasn't a four-letter word, but it was close enough to cause a stir at the National Scrabble Championship Thursday.

In the final round, eventual champion Trey Wright played the word "lez," which was on a list of offensive words not allowed during the tournament.

Normally, no word is off-limits, but because the games were being taped for broadcast on ESPN, certain terms had been deemed inappropriate, including the three-letter slang for lesbian.

"There are words you just can't show on television," Scrabble Association Executive Director John Williams said. . . .

Yes, I know the Third Edition of the Scrabble Dictionary excludes some offensive words. I'm not wild about that, but at least I can understand the "game the whole family should be able to play" theory, given that some families don't want their kids using those words even in a lexicographic context. But this is just silly.

Thanks to Dan Gifford for the pointer.

Bribes as data on the importance of institutions:

Here's an interesting abstract I just saw (go here to download the paper):

JOHN MCMILLAN, Stanford University - Graduate School of Business; CESifo (Center for Economic Studies and Ifo Institute for Economic Research)

PABLO ZOIDO, Stanford University - Graduate School of Business

April 2004

CESifo Working Paper Series No. 1173

Which of the democratic checks and balances -- opposition parties, the judiciary, a free press -- is the most critical? Peru has the full set of democratic institutions. In the 1990s, the secret-police chief Vladimiro Montesinos systematically undermined them all with bribes. We quantify the checks using the bribe prices. Montesinos paid television-channel owners about 100 times what he paid judges and politicians. One single television channel's bribe was four times larger than the total of the opposition politicians' bribes. By revealed preference, the strongest check on the government's power was the news media.

I haven't read the paper (and probably won't have the time to), and I realize that there are obvious objections to this sort of argument -- no need to pass them along. I just thought that it's an interesting research project, a creative though necessarily imprecise way at getting at some soft variables, and potentially interesting to some readers.

"The Faggot Family":

The Doody family from Wolverhampton has been crowned The Faggot Family in a national competition, and to kick off their reign they will launch National Faggot Week. . . .

The competition was organised by . . . Mr Brain's Faggots. . . .

OK, I admit it, the ellipses end up concealing the real explanation. (Incidentally, for those who think this is a hoax, it doesn't seem to be, and the Oxford English Dictionary does indeed confirm that "faggot" has the definition that the story references.)

Thanks to my friend Ted Balaker for the pointer.

Sexual orientation discrimination and race discrimination:

(I've blogged about this a year or two ago, but it seems worth returning to.)

Lots of people have argued that sexual orientation discrimination should be treated just like race discrimination. Sexual orientation and race, the argument goes, are both characteristics that are almost entirely irrelevant to a person's ability to do certain things, and are outside the person's control. The sexual orientation discrimination argument also has to take the next step, which is to explain why discrimination based on sexual conduct should be treated the same way, since obviously homosexuals are free not to engage in homosexual conduct. But there too the race discrimination analogy is helpful; race discrimination laws bars discrimination based on people's relationships with people of some race (so it's illegal to fire people because they're dating a black, or just dating outside their race).

Now of course there are various responses to this. There are factual disagreements with the assumptions of the argument I outlined above — for instance, some say that sexual orientation is within a person's control; others say that it is relevant more often than some might think. There are also other kinds of disagreement, too. But for now, I want to raise one point: There are multiple possible analogies to sexual orientation discrimination.

1. One, of course, is standard race and ethnicity discrimination, which is banned in many situations, and socially condemned even in many cases where it's legal. (For instance, if someone says "I'd like to have dinner tonight just with white people," many people would condemn this attitude even if they agree that the person should have the legal right to make that choice.)

2. But there's also sex discrimination. Sex is also outside a person's control (unless one goes through very onerous procedures), and also largely irrelevant to a person's abilities. Yet sex discrimination is banned in fewer situations, and socially condemned in fewer situations. (For instance, if someone says "I'd like to have dinner tonight just with the boys / the girls," many fewer people would condemn that.)

3. There's also height discrimination, and other aspects of appearance discrimination. Height is also pretty much outside a person's control, as are many (though of course not all) other aspects of appearance, and it's also largely irrelevant to a person's physical abilities, with a few exceptions. Yet height discrimination is legal almost everywhere and in almost all contexts (even when there's no reason other than the discriminator's or others' preference for it), and it's rarely socially condemned. (One might think that someone who discriminates based on height is shallow or is acting in an unfair way, but such people are rarely harshly condemned.) Note also that, to the best of my knowledge, height discrimination against short men is indeed pervasive, both in business and in social life, and quite substantial in magnitude. Likewise with discrimination against ugly people.

One can of course add other categories, though some (such as age or disability) are fairly often relevant to a person's ability, and others (such as religion or marital status) are more easily changeable though the legal system's view is that people shouldn't be pressured into changing them. But these three categories are enough, I think, to show that there are several different ways in which the legal system treats discrimination based on immutable and largely irrelevant attributes. And this suggests that when people are arguing "sexual orientation discrimination should be treated like race discrimination," they should also explain why it shouldn't be treated like sex discrimination or height discrimination. (Of course, some might think that all these kinds of discrimination should be largely forbidden and socially condemned, but that's a different and more ambitious argument from the one I'm responding to. I'm dealing here just with the argument that it's wrong, on equality or logical consistency grounds, to treat sexual orientation discrimination differently from the way race discrimination is treated.)

Of course, this point is especially apt as to the Boy Scouts controversy. They are, after all, the Boy Scouts — a group that discriminates based on sex, that is legally allowed to discriminate based on sex, and that most people (I suspect) would not condemn for discriminating based on sex (either in choice of group leaders or in choice of scouts). Likewise for the Girl Scouts. So if one is trying to criticize the Boy Scouts' sexual orientation discrimination by analogy to race discrimination, one has to also explain why the sexual orientation discrimination can't be defended by analogy to sex discrimination.

Antidiscrimination laws as restraints on liberty:

Some people, responding to my post yesterday on gay rights legislation, questioned whether antidiscrimination laws restrain others' liberty.

Well, of course they do. Your right to choose whom to associate with, whom to do business with, whom to select to speak for you, and so on is an important part of your freedom of action, just as is your right to build a home on your property, or to ingest or not ingest what substances you wish, or to pursue whatever profession you like, or a wide range of other freedoms. That's true even if the selection is for someone who does relatively remote and impersonal tasks (for instance, when you choose whether or not to patronize some pizza company, based for instance on your dislike of the company's politics). It's especially true when it involves choosing who will work closely with you (as a partner or a secretary), who will help raise your children, who will be a student or a teacher at your educational institution, who will speak on your behalf or on behalf of the organization to which you belong, who will live with you as a roommate, and so on — all things that many antidiscrimination laws affect.

Nor is this interference with freedom of choice eliminated when the legal system concludes that certain choices are "irrational." Your freedom includes the freedom to do things that others think are irrational. People may think that using certain drugs, overeating, riding a motorcycle without a helmet, riding a motorcycle with a helmet, or choosing to marry or date someone based on race or height or weight are "irrational" choices. But restraints on such supposedly "irrational" behavior are still restraints on liberty.

Partly this is because others may err about what's irrational, or may ignore others' preferences that are nonrational (e.g., taste in food, entertainment, people, etc.) but still quite important. And partly it's because freedom means the freedom to make choices that others think silly as well as those that others think wise.

And all this just involves the direct restraint on liberty. There are also indirect ones: For instance, banning sexual orientation discrimination in employment makes it harder for employers (whether big or small ones) to make employment decisions that have nothing to do with sexual orientation. The legal system is far from a perfect finder of truth, especially when it comes to people's motives; even employers who don't discriminate on one of the prohibit bases face (1) the intrusion into liberty and privacy that results when they have to defend their actions in court, (2) occasional incorrect discrimination verdicts that take away their property even when they didn't discriminate, and (3) the resultant deterrent effect even on nondiscriminatory decisions on their part.

Now of course one can still argue that these restraints on liberty (1) aren't that huge, and (2) are justified by the benefit that the restraint yields to others, or by the harm that the liberty inflicts on others. One can therefore conclude that people shouldn't have the liberty to discriminate, at least in certain ways. That's a perfectly plausible argument (though the general version of it is far too big an issue for me to deal with on the blog). And of course it's an argument that is often accepted both as to some antidiscrimination laws and as to many other laws, whether copyright and patent laws, libel laws, or even laws banning theft, trespass, rape, and murder, all of which do affect people's liberty of action.

But it seems to me that we shouldn't deny that antidiscrimination laws do burden liberty. The broad gay rights program isn't just about increasing the freedom of gays; it is also about decreasing the freedom (though its backers of course think that this is a legitimate decrease) of those who don't want to associate with gays in various ways. Thus, "Why do you oppose our proposals? It doesn't affect you if gays are free to have sex the way they please, marry, adopt, etc." is not an adequate argument — the broad program would affect others, and the first steps (including ones I support despite this danger, such as decriminalizing homosexual conduct or allowing same-sex marriage) do make it politically easier to enact the next steps.

WINE WARS, PART 2--21ST AMENDMENT TEXT: As noted in Wine Wars, Part 1 there is no persuasive policy goal to justify discriminatory bans that permit direct shipment by in-state wineries but prohibit out-of-state wineries. New York, for instance, has 200 farm wineries shipping directly to consumers and has not proffered any evidence that consumers can only get drunk on California wines but not New York wines. Given the absence of any reasonable justification for these laws, the next question is whether the 21st Amendment nonetheless permits states to engage in this arbitrary discrimination, notwithstanding the dormant commerce clause.

An essential purpose of the Commerce Clause was to eliminate the protectionist barriers erected by the states under the Articles of Confederation. As Justice Johnson wrote in Gibbons, "If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints." Gibbons v. Ogden, 22 U.S. 1 (1824) (Johnson, J., concurring). The 21st Amendment, as we will see, was intended to deal with the narrow but difficult problem of transitioning from the federal prohibition regime under the 18th Amendment to the post-Prohibition world after the 21st Amendment repealed prohibition. The 21st Amendment restored the constitutional balance that had been upset by the 18th Amendment, but was not intended to give the states power to engage in economic warfare against each others' products. Indeed, the reciprocal protectionist barriers and economic Balkanization that the states have erected in recent years is exactly the behavior that the Commerce Clause was intended to prevent. Hughes v. Oklahoma, 441 U.S. 322, 325 (1979).

But what of the 21st Amendment? Section 1 of the 21st Amendment repealed the 18th Amendment, therey ending Prohibition. Section 2 of the 21st Amendment provides, Section 2 of the 21st Amendment provides, "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." It is argued that by its plain language this provision gives the states plenary power over interstate commerce in alcohol, to regulate "importation or transportation" in any way the state sees fit, including imposing discriminatory bans on importation. But this plain language interpretation is clearly wrong.

Section 2 by its own terms neither specifically mentions the Commerce Clause nor is it specifically limited only to the Commerce Clause. Thus, there is no distinguishing principle in the text of § 2 of the 21st Amendment that would justify its application to a partial repeal of the Commerce Clause with no modification of any other provision of the Constitution, such as the First Amendment, Equal Protection Clause, or Due Process Clause. Still less is there any reason to believe that it repeals only the dormant Commerce Clause, while leaving all other provisions of the Constitution intact.

Early interpretations of § 2 in fact did point to its plain language to interpret the 21st Amendment as a blanket exception to the Constitution. In upholding a state liquor regulation in State Bd. of Equalization of California v. Young's Mkt., the first Supreme Court case addressing § 2, the Court stated, "The claim that the statutory provisions and the regulations are void under the equal protection clause may be briefly disposed of. A classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth." 299 U.S. 59, 64 (1936).

The rationale for limiting the text of § 2 is evident. Otherwise, a state could pass a law that prohibited the importation of kosher or sacramental wine. Or could permit the importation or transportation of alcohol to white people or to those who sign a pledge not to criticize the government. Indeed, if the expansive interpretation of the plain language is adopted, it seems that the state government could enslave members of the population and make them drive beer trucks. Given the absurd consequences that would flow from an expansive interpretation of the 21st Amendment, it is reasonable to assume that contrary to the interpretation imposed in Young's Mkt., the framers of the 21st Amendment did not intend to eliminate all constitutional limits on the states' regulatory authority. In other words, whereas the final clause of the provision refers to "in violation of the laws thereof," it clearly should be read as in violation of otherwise valid laws thereof. And, in fact, in a whole stream of subsequent cases, the Supreme Court has correctly held that the 21st Amendment does not nullify the application of the 1st Amendment Freedom of Speech, 1st Amendment Establishment Clause, Due Process Clause, or Equal Protection Clause. Clearly, therefore, state authority is not untrammeled under the 21st Amendment.

But perhaps the 21st Amendment repeals commercial provisions of the Constitution, and not individual liberties protections. Note first, however, that this distinction is not found anywhere in the text of § 2--so much for the unambiguous language of that provision. So that the distinction must be found in some extratextual source (which will be discussed in upcoming entries). But assuming somehow the phrase "importation or transportation" somehow magically gets converted into a selective repeal of only commercial clauses, does this authorizes states to engage in economic warfare against the products of other states with no justifiable basis?

Well, no. First, the Supreme Court has held that § 2 does not repeal the "Import-Export" Clause of the original Constitution. In Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964), the Court stated, "This Court has never so much as intimated that the Twenty-first Amendment has operated to permit what the Export-Import Clause precisely and explicitly forbids. . . . Nothing in the language of the Amendment nor it its history leads to such an extraordinary conclusion." Id. at 344-45. Then, in Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324,331-32 (1964), the Court observed, "To [conclude] that the Twenty-first Amendment has somehow operated to `repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would . . . be an absurd oversimplification. If the Commerce Clause had been pro tanto `repealed,' then congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect."

So the Court has held that notwithstanding the specific mention of "importation" in the 21st Amendment, it does not repeal the "Import-Export" Clause, and notwithstanding the mention of "transportation" it does not prohibit the transportation through New York for delivery to a duty-free shop at the airport (the facts of Hostetter). In short, notwithstanding the initial impression that the plain language of the 21t Amendment gives the states the power to do whatever they want to, the Supreme Court has not interpreted it that way and it is absurd to think that Congress intended that meaning.

Whatever the 21st Amendment does, therefore, there is no evidence that it was intended to overturn one of the fundamental purposes of the Constitution, which was to eliminate internal trade barriers that plagued the country under the Articles of Confederation. As James Madison stated, the Commerce Clause "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves."

Tuesday, August 10, 2004

Will judges be barred from participating in the Boy Scouts?

As blog readers know, I strongly oppose anti-sodomy laws; I tentatively support gay marriage; I think same-sex couples should be allowed to adopt; and I'm generally quite skeptical of government discrimination against homosexuals.

At the same time, I think the anti-gay-rights forces have a very good point when they worry about gay rights interfering with the rights of those who oppose homosexuality. We know that many parts of the gay rights movement aren't just after liberty from government oppression, or even getting equal treatment from the government. They also want to ban private employers and other entities (landlords, places of public accommodation, and others) from discriminating against homosexuals, which is to say to require them to associate with homosexuals.

Many (though not all) in the gay rights movement want to ban private associations, such as the Boy Scouts, from discriminating based on sexual orientation. Most recently, there is now talk of prohibiting judges from belonging in groups that discriminate based on sexual orientation, which may bar them from participating in the Boy Scouts.

The gay rights movement has won many victories, and has influenced many people even where it hasn't (yet) won -- such as in the gay rights debate -- by essentially asking "How does it hurt you?" How does it hurt me that two homosexual adults can have consensual noncommercial sex with each other in their own home? How does it hurt me that they can get married, or adopt children? (One can say that it may hurt their children, but many people, myself included, are skeptical about that.)

But that question ignores those gay rights proposals that would reduce the liberty of others -- and it ignores the way the various proposals are, as a matter of practical politics, interconnected. As a logical matter, it's possible to bar the government from discriminating based on sexual orientation, but to leave private parties free to do so. But as a psychological matter, many people's judgments about what private people (or government officials acting in their private capacity) may do are affected by what the government may do. The more homosexual relationships are legitimized, the more many (not all, but many) people in the middle of the political spectrum on this question will condemn even private discrimination against homosexuals.

The analogy to race discrimination that gay rights advocates often cite is really quite apt here. People who oppose homosexuality are understandably worried that their views will become as stigmatized -- and acting on those views will in many ways become as illegal -- as racist views are now. And one way to fight this possibility is to fight it early, for instance in the marriage debate, rather than to wait until that's lost and the gay rights movement moves even more firmly towards restricting the private sector.

Now of course if one thinks that the law should ban sexual orientation discrimination by private employers, private landlords, and private associations like the Boy Scouts, and that judges and other government officials should be barred from participating in the few heterosexual-only groups that remain, then one would hardly worry about these effects. Also, if one thinks (as I do) that some of the gay rights proposals are good ideas but others (such as interference with judges' ability to participate in the Boy Scouts, or outright prohibition on discrimination by the Boy Scouts) are bad ideas, one might conclude that their benefits outweigh the speculative though not implausible costs that these good proposals might politically enable the bad ones.

And, finally, one should realize that sometimes fighting too implacably against every proposal may prove counterproductive: For instance, if the anti-gay-rights movement tried hard not just to reverse Lawrence v. Texas but actually start harshly enforcing sodomy laws, the result would likely weaken the political power of the movement rather than strengthen it (and of course I think such an approach would be morally wrong as well).

But in any event, one should acknowledge that the "It doesn't hurt you, so why should you object?" argument omits an important point: The broad array of gay rights proposals would restrict the liberty and equality of those who oppose homosexuality -- and this array is more of a package deal than we might think, since the more proposals the gay rights movement wins on, the easier (generally speaking) it would be for it to win on other proposals.

We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others. And it thus makes perfect sense that those who oppose some of those proposals would fight all of them, precisely because once some are enacted, the others will become politically more appealing.

So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the gay rights program and tentatively support some others, despite the risks that I identify. But I have to acknowledge that my opponents on this do have legitimate reason to worry about their liberties.

Bogus Privacy Scandal Reported in The New York Times?

A week ago, The New York Times ran a story about the Census Bureau discosing information about Arab Americans to the Department of Homeland Security. The story creates the impression that this was a serious violation of privacy rights by overzealous government officials. Reuters ran a piece on the Times report, and the news spread through the blogosphere in a hurry. Here are the key parts of the Times story:

  Homeland Security Given Data on Arab-Americans
  The Census Bureau has provided specially tabulated population statistics on Arab-Americans to the Department of Homeland Security, including detailed information on how many people of Arab backgrounds live in certain ZIP codes.
  The assistance is legal, but civil liberties groups and Arab-American advocacy organizations say it is a dangerous breach of public trust and liken it to the Census Bureau's compilation of similar information about Japanese-Americans during World War II.
  The tabulations were produced in August 2002 and December 2003 in response to requests from the Customs and Border Protection division of the Department of Homeland Security.
  One set listed cities with more than 1,000 Arab-Americans. The second, far more detailed, provided ZIP-code-level breakdowns of Arab-American populations, sorted by country of origin.
  The categories provided were Egyptian, Iraqi, Jordanian, Lebanese, Moroccan, Palestinian, Syrian and two general categories, "Arab/Arabic" and "Other Arab." . . .
  Census tabulations of specialized data are legal as long as they do not identify any individual.
  James Zogby, president of the Arab American Institute, said the data sharing was particularly harmful at a time when the Census Bureau is struggling to build trust within Arab-American communities.
  "As this gets out, any effort to encourage people to full compliance with the census is down the tubes," he said. "How can you get people to comply when they believe that by complying they put at risk their personal and family security?"
  In 2000, the bureau issued a formal apology for allowing its statistical data to be used to round up Japanese-Americans for internment during World War II.
  Disturbing, right? Well, hold on a second. It turns out that there is an important piece of information that the Times is not telling you: All of the information disclosed has been publicly available from the Census Bureau's own website for years. As this e-mail from the Census Bureau explains, the information had been released to the public already and was "merely packaged . . . in a more usable format" for Homeland Security. You can access the data yourself from this page.

   As best I can tell, all the Census Bureau did was run a few queries from their own public website and then e-mail the information to the Department of Homeland Security. The Times story doesn't tell you this, though; instead, it rather artfully describes the information as "specially tabulated." Yes, it was specially tabulated; Census Bureau employees ran the queries from its public data and put it in tabular form just for Homeland Security. Ergo, specially tabulated.

  Why didn't the Times tell its readers that the information was publicly available? One reason may be that the group that fed the story to the Times wasn't very clear about this, either. The disclosure became public thanks to a FOIA request made by Electronic Privacy Information Center, aka EPIC. EPIC's page about the Census Burea disclosure bears a significant resemblance to the Times story, and uses almost identical artful wording. Here is how EPIC reports the story:
  Department of Homeland Security Obtained Data on Arab Americans From Census Bureau
  EPIC has obtained documents revealing that the Census Bureau provided the Department of Homeland Security statistical data on people who identified themselves on the 2000 census as being of Arab ancestry. The special tabulations were prepared specifically for the law enforcement agency. There is no indication that the Department of Homeland Security requested similar information about any other ethnic groups. The tabulations apparently include information about United States citizens, as well as individuals of Arab descent whose families have lived in the United States for generations.
  One tabulation shows cities with populations of 10,000 or more and with 1,000 or more people who indicated they are of Arab ancestry. For each city, the tabulation provides total population, population of Arab ancestry, and percent of the total population which is of Arab ancestry.
  A second tabulation, more than a thousand pages long, shows the number of census responses indicating Arab ancestry in certain zip codes throughout the country. The responses indicating Arab ancestry are subdivided into Egyptian, Iraqi, Jordanian, Lebanese, Moroccan, Palestinian, Syrian, Arab/Arabic, and Other Arab.
  . . .
  During World War II, the Census Bureau provided statistical information to help the War Department round up more than 120,000 innocent Japanese Americans and confine them to internment camps.
  I called up EPIC and spoke with Associate Director Chris Hoofnagle, who confirmed that (to his knowledge) all of the information the Census Bureau disclosed was publicly available from the Census Bureau website.

  Maybe I am missing something, and if so, I would be happy to retract this post and to apologize for the misunderstanding. But if I'm not missing anything, doesn't the story seem to rest on a rather sneaky misrepresentation of the facts?
Flamingo or Ostrich?

The AP reports:

A year after the Sept. 11 attacks, the Justice Department obtained video surveillance tapes suggesting terrorists were targeting Las Vegas casinos but authorities never alerted the public as they discussed whether a warning might hurt tourism or increase the casinos' legal liability, internal memos show.

The mayor of Las Vegas said Monday he was never told about the tapes uncovered in Detroit and Spain in 2002, and had been assured by the FBI there were no credible threats against his city. "If I were told, I would certainly tell the public," Mayor Oscar Goodman said.

But memos and e-mails between federal prosecutors, obtained by The Associated Press, say Las Vegas authorities were alerted to some of the footage by Aug. 30, 2002. Later, numerous local law enforcement officials were invited by a senior FBI agent to view the footage, but most spurned the invitation, the memos say.

(Yes, I'm just trying to be cute with the post headline; I have no particular reason to think that the owners of the Flamingo are particularly culpable here, even if some casino owners are.)

One document quotes a federal prosecutor in Las Vegas as saying the mayor was concerned about the "deleterious effect on the Las Vegas tourism industry" if the Detroit evidence became public. Another memo states the casinos didn't want to see the footage for fear it would make them more likely to be held liable in civil court if an attack occurred. . . .

I doubt that such deliberate ignorance could indeed diminish the casinos' liability — it might actually increase it (unless they thought they could hide their refusal to see footage). On the other hand, it's not clear whether the memo was reporting the casinos' expressed motivations, or was just guessing at the motives:

"The information, unfortunately, was not taken as seriously as we believed it to have been," Assistant U.S. Attorney Richard Convertino told AP in an interview, recounting how only two local police officers took up the FBI agent's offer to see the tape.

"The reason that he (the FBI agent) was given for the low turnout was because of liability. That if they heard this information they would have to act on it. It was extraordinarily unacceptable and absolutely outrageous," Convertino said. . . .

It's certainly possible that the agent's source was just speculating, and the real problem was that the casinos weren't adequately informed about the tapes, or someone else along the line dropped the ball.

Thanks to Jennifer Ash (Mellow-Drama) for the pointer.

Monday, August 9, 2004

Drink Up (Moderately):

I know it's fashionable to be anti-French these days, but I think they might be onto something. According to this report, the French government wants to classify wine as nourishment. In one sense, they're right. After all, moderate wine consumption is good for you. On that note, I think I'm off to my local wine bar.

Corporate Admission Against Interest: The New York Times reports on how the Bush Administration has sought to make various policies more "coal-friendly." In my mind, some of these policy changes are desirable (e.g. making it easier to modernize coal-fired power plants), while others are not (e.g. more subsidies to coal producers). The discussion of one particular policy change caught my eye.

The Bush Administration apparently proposed increasing the allowable dust level at mine sites where companies prove it is infeasible to lower the levels any further, but woudl require workers at such sites to wear helmets with built-in respirators so as to ensure their exposure would remain below the specified standard. Not knowing anything else about the policy, or much at all about the relative risks of coal dust and the lime, this seems like a reasonable policy change.

The article continues to quote various critics of the policy change, including union leaders. What is surprising, however, is that the article quotes an offical with 3M, the manufacturer of helmets with built-in respirators, saying that the proposed policy is a bad idea because miners would not always wear the equipment properly. Think about it. How bad must this proposal be if a company that presumably stands to gain from the policy change says it's a bad idea? (Moreover, the company in question's position is that its product won't solve the problem.) Perhaps there is some other explanation. Perhaps 3M is worried about liability if its respirators are not as effective as the government hopes. Perhaps. But without knowing more, I would say this is another gift the coal industry does not need.

Such corporate admissions against interest are quite rare. Typically, where companies sell products to address various health risks, they hype the threat. Makers of water purifiers exaggerate water quality problems, makers air filters exaggerate the risks of indoor air pollution, and so on. I'm not claiming these problems are not real, only that companies tend to stress scientific data and policy changes which bolster the case for their products — and often engage in puffery (if not worse) in the process.

This is one of the few examples with which I am familiar of a company pooh-poohing a policy that would help its bottom line. Another one which recently caught my eye involves Mad Cow disease. Several months back the Wall Street Journal quoted the CEO of a company that makes one of the BSE tests saying that universal testing for Mad Cow would be a waste of money (and he's right).

In general, when I see a corporate official making this sort of admission against interest, I assume that it is because the case for the other side is overwhelming. Therefore, in this case, I think the Bush Administration should shelve their coal dust proposal until a better respirator technology comes along.

Update: For some reason, this post was exceedingly popular (or at least provocative), so there will be an update once I've digested the dozens of e-mails it prompted. Thanks to all who wrote in.

Update: See here for my follow-up post.

Todd Zywicki:

We're delighted to welcome Todd Zywicki, one of our earliest coconspirators, back to the blog. Todd is a lawprof at George Mason, and he spent the last year-plus as Policy Planning Director at the Federal Trade Commission (which is why he had to leave us). Here's what Todd has been up to while at the FTC, from the FTC's farewell press release:

Zywicki's leadership of the FTC's Office of Policy Planning yielded impressive results, both in the area of competition and consumer protection advocacy and interagency policy coordination. He headed up FTC's efforts regarding the filing of comments on the states' below-cost gasoline rules, over-expansive definitions of the unauthorized practice of law by state bar associations, direct-to-consumer drug advertising, and qualified health claims for food products. In addition, he coordinated the development of the FTC's comments before the Commodity Futures Trading Commission regarding the application of U.S. Future Exchange, L.L.C., for contract market designation.

During Zywicki's tenure, the FTC also issued two important reports, "Possible Anticompetitive Barriers to E-Commerce: Wine" and "Possible Anticompetitive Barriers to E-Commerce: Contact Lenses." Following the issuance of the first report in 2003, Zywicki testified before the U.S. House Subcommittee on Commerce, Trade, and Consumer Protection's Committee on Energy and Commerce on "E-commerce: The Case of Online Wine Sales and Direct Shipment." He also participated in the Commission's efforts to protect consumers through class action reforms.

Todd will be visiting at Georgetown this coming school year.

"What I Did Over Summer Vacation":

De Novo is collecting submissions for an interesting feature:

Law students do all sorts of things over the summer, ranging from positions at top-ranked law firms to . . . positions at slightly lower-ranked law firms. Oh, and some other stuff too. We want to hear about your summer experiences, wherever you were -- the DA's office, clerking for a judge, public interest organizations, researching for a professor, and firms of all shapes and sizes, as well as people who took the roads less traveled. Tell us about the good, the bad, and the ugly of all the opportunities with which law students are confronted with each year, but about which they are never quite informed enough to know if they're making the right choice.

De Novo encourages all rising 2Ls and 3Ls to contribute posts about their experiences for our next action-packed symposium, scheduled to begin on August 23rd. Send your stories to Pass on the word to non-bloggers, and non-blog-readers. Also note: anonymity is cool with us.


Douglas Irwin, Professor at my alma mater Dartmouth, has a brilliant dissection of modern-day protectionists in today's Wall Street Journal. His concluding paragraph is a home run, "As it stands now, free trade-critics bring nothing to the table. They do not have a constructive agenda to remedy the problems they see. Free-trade critics are long on complaints and short on solutions. Instead of carping about free trade, they should direct their energies toward coming up with concrete suggestions about how to make the economy stronger."

LISTEN MA, I'M ON CATO AUDIO! I was honored to make the cut for the July Cato Audio program for my speech on the folly of proposed bans on advertising food products to children in order to combat obesity in children. Children's obesity is a serious and growing problem, but fad policies like advertising bans are going to be no more effective than fad diets in fighting America's battle against the bulge. For those who would prefer to see your truly, rather than just hear me, you can watch the event in Real Video. I just became aware of Cato Audio, but its a very clever innovation, especially for those of you who listen to books on tape in the car. They even edit the presentations and punch them up with good intros and music to make them even more entertaining.
People prosecuted for pro-terrorist speech on New York streets shortly after 9/11:

Someone e-mailed me about these two cases, and I found that I'd mislaid the citations. To keep that from happening again, and to help others who are interested in the subject, I thought I'd blog them: They are People v. Upshaw, 190 Misc. 2d 704, 741 N.Y.S.2d 664, 2002 N.Y. Misc. LEXIS 203, and People v. Harvey, 2001NY078439, noted at N.Y.L.J., Feb. 1, 2002 (available on LEXIS); see this AP story for the details. The theory behind the convictions was that the speech drew a hostile crowd, which looked like it was going to turn to violence; I think that the Supreme Court decision in Feiner v. New York (1951), which authorized these sorts of prosecutions, is mistaken, and has been undermined by later cases, but there's still some controversy over that, as these cases show.

The cases are noteworthy because they are among the very few prosecutions for pro-terrorist speech since September 11, 2001.

UPDATE: Prof. Matt Bosworth reports that the Harvey prosecution was ultimately dropped by the New York D.A.'s office. See N.Y.L.J., Apr. 26, 2002.

More on Michigan eminent domain case:

My friend Ilya Somin, a George Mason lawprof who filed an amicus brief in the case, has this op-ed praising the Michigan Supreme Court's decision. He also points me to contrary view by Wayne State lawprof John Mogk, and passes along this response to Mogk:

While it is possible to have reasonable disagreement over Poletown, Professor Mogk's op ed is not entirely accurate in its facts. For example, it is not true that all the other 25 largest cities in the nation have the power to condemn private property for transfer to other private parties solely for economic development. The Illinois, Florida, and California supreme courts have all held that economic development by means of increasing the profitability of a private business is NOT by itself a sufficient justification for condemnations that transfer property to private hands. So L.A., San Francisco, San Diego, Chicago, and Miami, among other major cities, have somehow managed to prosper without this power. See Southwestern Ill. Dev. Auth. v. National City Env., 768 N.E.2d 1, 9 (Illinois), cert. denied, 537 U.S. 880 (2002) (explaining that a "contribu[tion] to economic growth in the region" cannot be a legitimate ground for condemnation because "incidentally, every lawful business does this"); Sweetwater Valley Civic Ass'n v. City of National City, 555 P.2d 1099, 1103 (California 1976) (holding that condemnation can "never can be used just because the [city] considers that it can make better use or planning of an area than its present use or plan" and that "it is not sufficient to merely show that the area is not being put to its optimum use, or that the land is more valuable for other uses"); Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d 451, 457 (Florida 1975) (holding that a "'public [economic] benefit' is not synonymous with 'public purpose' as a predicate which can justify eminent domain").

And, of course, if Poletown-style takings are really the key to urban prosperity, as Professor Mogk suggests, why did Detroit (as he also points out) continue to be the nation's poorest large city in the 23 years Poletown was in force?


I sure hope this Jerusalem Post report is correct:

It's not so much what Zakariya Zubeidi, the fugitive leader of the West Bank Aksa Martyrs Brigades, says, but how he says it. Zubeidi speaks in the vacant tones of a ghost.

And four years after he first picked up a rifle, this peace-activist-turned-local-hero-and-killer eulogized the Palestinian intifada in words similar to those in which he described himself.

"The intifada is in its death throes. These are the final stages — this I can confirm," he said on Wednesday. . . .

The intifada has vented its suicidal wrath on Israelis, but in recent weeks criticism of the Palestinian Authority has ensconced itself in common parlance. "Not only was the intifada a failure, but we are a total failure. We achieved nothing in 50 years of struggle; we've achieved only our survival."

And as terrorist warfare slows to a gasping halt, Zubeidi sees the violence turning inward. Last week, Zubeidi decided to vent his frustration by torching the offices of his "friend," Kadura Musa, Jenin's governor and its Fatah leader. Zubeidi claimed he sought to highlight the reforms necessary for his society; his critics said he was pining for attention.

One of the Palestinian's few self-critical leaders, Zubeidi explained: "My position is neither legal nor legitimate. But an independent judiciary would be able to stop the corruption and enact the reforms we need to save this society." . . .

[T]he infamous Aksa Martyrs Brigades are hardly brigades anymore. With 160 of his men in prison, and another 25 killed in battles with the IDF, Zubeidi's newer recruits are often teenagers, some of whom attend school during the day and take potshots at the nearby settlements of Ganim and Kadim at night. . . .

Thanks to Si Frumkin for the pointer.

Tips for success in law school,

from my former student Michael Lopez. I'd particularly stress 1, 2, 4, 5, and 10.

WINE WARS 1--EFFECTS OF DIRECT SHIPPING: According to empirical study, the benefits to consumers from direct wine shipment can be substantial, both in terms of variety and price. A study by the FTC
published during my tenure found that found that 15 percent of a sample of popular wines available online were not available from retail wine stores within 10 miles of McLean. Moreover, because this was a study of the "Top 50" most popular wines the Wine and Spirits annual poll, these were not obscure wines. For smaller wineries, availability in traditional outlets would be even smaller.

In addition, depending on the wine's price, the quantity purchased, and the method of delivery, consumers can save money by purchasing wine online. Because shipping costs do not vary with the wine's price, consumers experience the greatest savings on expensive wines, while brick-and-mortar stores may offer better prices on less expensive wines. The McLean study suggests that, if consumers use the least expensive shipping method, they could save an average of 8-13 percent on wines costing more than $20 per bottle, and an average of 20-21 percent on wines costing more than $40 per bottle. In a recent working paper, the authors of the original paper update their research and find essentially the same findings:

What about underage drinking? This may come as a shock to Conspiracy readers (who certainly would never have done such a thing in their younger days), but apparently some kids these days are able to buy beer and wine at the local 7-11, notwithstanding the vigilent efforts of the sleepy, hourly-wage sales clerk behind the counter at 11:00 p.m. Friday night. In fact, studies show that minors can fairly routinely purchase alcohol from traditional bricks-and-mortar sellers.

Does this mean that minors will be buying Pinor Noir over the Internet? Probably not. The FTC surveyed liquor enforcement officials in several states that permit direct shipping and they reported few, if any, problems with direct shipping leading to increased underage access. This is not surprising, of course, as intuition tells us that minors are not likely to get a hankering for a perky Merlot, swipe their parent's credit card, order wine on-line, and have it shipped to them for arrival several days later, and to make sure that there is some adult at home to sign for the package when it arrives.

In fact, the actual experience of state liquor officials confirm this intuition. They point to several reasons why minors are unlikely to buy wine over the Internet. First, Gallo, Blue Nun, and other cheap perennial favorites of 20 year olds are cheaper and easier to get at 7-11; because of shipping costs, only more expensive wines are cheaper on-line. Second, there are substantial inconveniences associated with obtaining alcohol on-line as opposed to a traditional seller, such as needing a credit card and being forced to wait several days for delivery of the product. Finally, many states have implemented safeguards that can reduce the danger of underage access to alcohol, such as clearly labeling the package and requiring an adult signature upon delivery.

Also, in the Supreme Court cases, there are already 200 New York wineries shipping directly to consumers. The issue is not whether or not to allow direct shipping--that bridge has already been crossed. The issue whether to allow Virginia and Oregon wineries to ship to consumers on the same basis as the 200 New York wineries that are already shipping. Consumers can get just as drunk on New York wines as California or Washington wines, thus it is doubtful that temperance is the real justification for these laws. Indeed, the legislative history of the states' enactments indicate that it was protectionism, not temperance, that animated them.

Proffered concerns about underage drinking are thus merely a stalking horse for the financial interests at stake in these cases. Allowing direct shipping of wine isn't going to cause minors to start getting loaded on Sonoma Cutrer. Its just a question of whether consumers will be allowed to take advantage of the greater selection and lower prices available from direct shipping.


A few other thoughts prompted by reader inquires:
First, it is clear from the legislative history of the state regulatory regimes that the purpose of the discrimination in NY and Michigan is to protect and encourage their in-state wine industries, not to further consumer protection goals.

Second, in the testimony at the FTC hearings on the topic, the states that permit direct shipping testified that to the extent that they get complaints about supposed shipments to underage drinkers, those complaints have almost uniformly come from competitors and wholesalers--they almost never receive any complaints from parents saying that their kids bought wine off the Internet.

Third, to the extent that there is some generic consumer protection goal furthered by the regulatory regimes here (such as food purity, etc.), there is no distinction between wine, grapes, grape juice, etc. In fact, one of the leading dormant Commerce Clause cases on point is the Hunt case, which dealt with a discriminatory ban imposed by North Carolina against Washington apples. Moreover, the question is not whether California wineries can sell wine in New York, it is whether California wineries can ship directly to consumers for personal use, rather than having to pay the wholesaler's mark-up. Thus, the product is going to get directly to consumers in the same form in a sealed package and the question is whether it will be done so in the most efficient manner possible.

Over the next several entries, I will lay out my personal views on issues related to the interstate direct shipment of wine. As readers are probably aware, the Supreme Court will hear oral argument this term in two cases involving discriminatory bans to interstate direct shipping. In both the Michigan and New York cases, the states permit intrastate direct shipment from in-state wineries, but effectively prohibit direct shipping by out-of-state wineries. Over the next several days I will discuss the empirical evidence on the costs and benefits of direct shipment, explore whether the 21st Amendment saves these discriminatory laws, and then will address the 2d Circuit's holding in the New York case that the New York regime was not in fact discriminatory.

Sunday, August 8, 2004

Liberty and Power have added two more libertarian intellectuals to its All-Star line up. This time it is the duo of Walter Grinder and John Hagel III. Walter and I go back to the Center for Libertarian Studies in New York City in the 1970s, of which he was the Executive Director, and he went on to virtually invent the IHS summer seminar program in which I taught for over 10 years. Walter now runs the Institute for Civil Society.

John Hagel and I were classmates and co-conspirators in law school and it was John who introduced me to the New York circle of libertarians, such as Murray Rothbard, Leonard Liggio, Roy Childs, Ralph Raico, Ronald Hamowy, Walter Block, Bill Evers and many more. He and I also organized a conference on criminal justice theory at Harvard Law School when we were 3Ls which resulted in the (long out-of-print) book we co-edited entitled, Assessing the Criminal: Restitution, Retribution, and the Legal System (1977). John went on to an extremely successful career as a business consultant, primarily in the technology sector. He is the author of Net Gain: Expanding Markets Through Virtual Communities, Net Worth: Shaping Markets When Customers Make the Rules, and Out of the Box: Strategies for Achieving Profits Today and Growth Tomorrow Through Web Services.

Back in the 1970s, John and Walter co-authored work on libertarian social theory (discussed here by Chris Matthew Sciabarra). I hope that they will use this forum to develop further their long-neglected ideas.
Dahlia's Day in the Sun:

Dahlia Lithwick has her first guest column in the New York Times today. It's a very thoughtful piece on the unintended consequences of rape shield laws. It is further proof that most of the Times' guest columnists are better than the real thing.

Sunday Song Lyric: The cards just weren't hitting last night. Sometimes when my luck (or, let's face it, my gambling acumen) isn't quite where I'd like it to be, I wish I could gamble like Big Jule from Guys & Dolls - who threw craps with his own special dice. The spots were all worn off, but Jule would insist he remembered which side was which. In the musical, Big Jule loses the big bet to Sky Masterson nonetheless after Sky sings "Luck Be a Lady Tonight." Written for the musical by Frank Loesser, the song was further popularized by the Chairman of the Board. (Indeed, I know many folks who have no idea the song is a showtune.) Barry Manilow and Barbara Steisand, among others, also covered the tune, but I don't recommend their versions. In any event, in honor of last night's poker game — when luck was anything but a lady for me — here are Frank Loesser's lyrics to what may be the most memorable gambling song in history:
They call you lady luck
But there is room for doubt
At times you have a very un-lady-like way
Of running out

Your on this date with me
The pickin's have been lush
And yet before the evening is over
You might give me the brush

You might forget your manners
You might refuse to stay
And so the best that I can do is pray

Luck be lady tonight
Luck be lady tonight
Luck if you've been a lady to begin with
Luck be a lady tonight

Luck let a gentleman see
Just how nice a dame you can be
I know the way you've treated other guys you've been with
Luck be a lady with me

A lady never leaves her escort
It isn't fair, it isn't nice
A lady doesn't wander all over the room
And blow on some other guys dice

Lets keep this party polite
Never get out of my sight
Stick with me baby, I'm the guy that you came in with
Luck be lady tonight

A lady never flirts with strangers
She'd have a heart, she'd be nice
A lady doesn't wander all over the room
And blow on some other guys dice

Lets keep this party polite
Never get out of my sight
Stick with me baby, I'm the guy that you came in with
Luck be lady tonight

Update:A reader e-mails a slight correction:

Big Jule's dice were spotless not because the spots had worn off but because Big Jule specifically had them removed -- "for good luck," he explained to the understandably skeptical Nathan Detroit. Today, we would call this "faith-based craps."
Although It's Difficult to know what to make of all the recent stories about ongoing terrorism investigations, this story from the NY Times suggests that there is a lot of important stuff going on right now. Some excerpts:
  A Pakistani man whose arrest provided information about the reconnaissance of financial institutions in New York, Newark and Washington was also communicating with Qaeda operatives who the authorities say are plotting to carry out an attack intended to disrupt the fall elections, a senior intelligence official said Saturday.
  . . .
  Now the authorities say Mr. Khan's arrest is also helping them unravel a threat to carry out an attack this year inside the United States. . . . [H]e is emerging as a central figure in an expanding web of connections that, the authorities say, indicates that they may have penetrated an operational Qaeda group whose intentions were previously unknown.
  . . .
  One senior counterterrorism official said the outpouring of leads had mushroomed into a sprawling investigation in which agencies in the United States and overseas were struggling to coordinate and share the enormous volume of information.