Saturday, September 11, 2004

Something worth producing: With all the apparent media gaffes in Rathergate, it would be helpful if someone put up a page listing (1) each error or likely error by a major media outlet, (2) an explanation of why it's an error, preferably with links to evidence that it's an error, (3) a description of what the media outlet did (if anything) to correct it. This would include seeming errors such as the NPR/ABC Note allegation that a post questioning the accuracy of the documents came suspiciously early, the apparent Boston Globe misquote of a forensic expert, the apparent overstatement by CBS about which documents its expert looked at, and more.

Of course, mistakes happen, in the major media as well as elsewhere (even, horror of horrors, on this very blog). But mistakes are an opportunity for people to learn; I would hope that journalism scholars and journalism students will study this rather public controversy, both in classes and in their scholarship. They're also an opportunity to remind people to maintain a healthy skepticism, and to provide a healthy antidote for the periodic big media blog-bashing that we've seen in the recent past and we'll see again.

In any case, I think this list would be a great resource for people to refer to, both now and later. Unfortunately, right now this data is strewn over many posts on many blogs — if someone aggregates it and verifies it, that person will be doing a public service, and I'd wager say will get a good many hits on his blog.

My sense is that the list should include fairly material errors, as well as charges that aren't proven errors but still seem pretty credible: For instance, when a forensic expert claims he was misquoted in a newspaper article, it's possible that he's mistaken and the newspaper was correct; but his allegations (unless they seem not credible for some reason) raise a substantial question about the article's accuracy. They should also be written in a calm, impartial tone, and should avoid overstatement and error themselves. And it would be nice if they were formatted as clearly and readably as possible.

In any event, I'm too swamped right now to do something like this, but I think it would be great if someone undertook this project.
Vanity Fair Publishes Inside Scoop on Bush v. Gore: The October 2004 Vanity Fair has hit the newsstands, and it offers an insider's view of what happened in Bush v. Gore. (It's not online, unfortunately; yes, I actually had to plunk down $4.50 for a very glossy paper copy.) To be more precise, the article offers the view of a group of the law clerks who worked on the case — a group described in the article as "most" of the clerks who worked for the four Justices in the dissent and the "occasional" clerk who worked for one of the Justices in the majority.

   The article acknowledges that the clerks' story is rather skewed, but justifies publishing it on the ground that it's better than nothing: "[I]f this account may at times be lopsided, partisan, speculative, and incomplete," the article states, "it's by far the best and most informative we have." Like most law clerk narratives, the article both stresses the important role of law clerks and includes considerable speculation as to the improper motives of the Justices who voted the other way.

   I haven't followed the debates over Bush v. Gore very closely — I think the case was wrongly decided, but it's far from my area of expertise — but my quick initial read of the article suggests that these are the most important new details:
  (1) The initial vote to take the first election case, Bush v. Palm Beach County Canvassing Board, was 5-4, with the 5 Justices who later made up the Bush v. Gore majority all voting to grant the petition for certiorari.

  (2) The 9-0 per curiam opinion in the first election case was a compromise opinion authored by Chief Justice Rehnquist. The compromise was reached after neither side could form a majority for either letting the initial Florida Supreme Court opinion stand or overturning it outright.

  (3) At the Justices' conference following the oral argument in Bush v. Gore, Justice Kennedy initially voted to allow the recount to continue, joining Justices Souter, Ginsburg, Breyer, and Stevens to form a majority to affirm.

  (4) Justice Kennedy changed his vote soon after the Justices' conference, and was the eventual author of the per curiam majority opinion in Bush v. Gore.
   Then there is the question of law clerk confidentiality. The clerks who spoke to Vanity Fair apparently viewed their duty of confidentiality to the Court as subject to waiver when in their judgment the Court has gone badly astray:
To the inevitable charges that they broke their vow of confidentiality, the clerks [who spoke to Vaniy Fair] have a ready response: by taking on Bush v. Gore and deciding the case as it did, the Court broke its promise to them. "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor," one clerk says.
  Hmmm. Sounds pretty flimsy to me, for obvious reasons.
LibraryLaw, plus GayHawaii:

Just ran across LibraryLaw Blog, an interesting blog focused on law and libraries. Definitely worth checking out.

Here's one interesting story the blog points to:

[The ACLU] filed a lawsuit on behalf of Carlos Hernandez, a Honolulu man who said he was banned from the Hawaii State Library for a year for using its computers to access a gay and lesbian Web site . . . .

Hernandez was using a computer at the library on May 18 when a security guard issued a written warning telling him he was being banned for one year because he was viewing a pornographic Web site, according to the lawsuit.

Hernandez and the Center say the Web site,, is not a pornographic site, but a resource with information on events, travel, real estate and other services for the gay community.

The Center complained, and was told by a library official that the security guard issued the warning because the Web site contained photos of men without shirts, the lawsuit said.

Pretty amazing, if the allegation is accurate.

A HOAX THAT I REALLY CARE ABOUT: Now here's a hoax involving Clinton Portis that I and many other fantasy footballers really care about.
More on forgery:

A bunch of people e-mailed me to say that surely forging a letter from a military officer, which ostensibly came from a military file, must violate some federal statute, and not just the couple of state election law statutes I mentioned here. Well, that was my intuition, too, but a quick search didn't reveal any such general statutes. Federal forgery law is a set of specific prohibitions on forging specific kinds of documents, and I couldn't find anything that would cover this sort of letter. Likewise, prohibitions on fraud generally involve fraud intended to get something of value from someone, but not including their opinions or their votes.

I may well have missed something — I'm not a specialist on forgery and fraud laws, and my searches were cursory. If you find a statute that would cover this, please e-mail me its citation and its text, and if it pans out, I'll gladly blog about it. But for now, I don't see it; I only see the two state misdemeanor statutes, focused on false statements aimed at affecting elections.

UPDATE: A couple of people suggest that 18 U.S.C. sec. 1001 might apply here; this is the general federal false statement statute, which provides (in most relevant part),

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.
As best I can tell, though, "in any matter within the jurisdiction" has been read to refer to any statement made to the government. I don't think that making a false writing thats purport to be a statement by the government qualifies; none of the sec. 1001 cases that I've seen fit that mold. If anyone is aware of any cases involving such a use of sec. 1001, please let me know. Others suggested that the mail fraud statute, 18 U.S.C. sec. 1341, might cover this (if some part of the scheme was carried out through the mails or through some interstate carrier). But as best I can tell, while sec. 1341 prohibits false statements used to "defraud," that term has been read as limited to cheating people out of their property or other similarly valuable things. Lying to people to get them simply to believe something, or to vote a certain way has generally not been treated as fraud for legal purposes.
Ilya Somin's final response on the Michigan eminent domain decision:

I would like to thank Professor John Mogk for his response to my most recent post on the Michigan Supreme Court's overruling of Poletown in the recent case of County of Wayne v. Hathcock. Under normal circumstances, I would hesitate to renew a debate like this such a long time after it began. However, Hathcock's reversal of Poletown is one of the most important property rights cases of the modern era, and it deserves the additional discussion.

Readers may recall that Poletown was the notorious 1981 decision in which the Court had upheld the city of Detroit's decision to condemn the homes of over 4200 people in order to transfer the property to General Motors so that it could build a new factory. The Hathcock decision overruled Poletown and held that private property could not be condemned for transfer to other private interests so long as the sole rationale for doing so was "economic development." The Hathcock Court rightlyconcluded that this rationale places property rights in grave danger because it could be used to justify virtually any condemnation that transferred property to a private business. In my earlier criticism of Mogk's argument [see here, and in the posts linked to there], I cited decisions by Illinois, California, and Florida supreme courts that concluded that economic development was not an adequate rationale to justify takings that transfer property to private interests. These cases undermine Professor Mogk's claim that Detroit is now the only city among the nation's 25 largest without the power to condemn private property solely for "economic development." I also pointed out that Professor Mogk incorrectly claimed that the Poletown condemnation created 6000 jobs at the new GM factory, and explained several serious dangers caused by allowing condemnations of property for the sole purpose of allegedly creating "economic development." Far too often, such condemnations are used to confiscate property for the use of politically powerful private interests such as General Motors, rather than create any real benefits for the public.

Professor Mogk's most recent post fails to refute these points. He continues to overestimate the benefits of the Poletown decision and others like it, while ignoring the many costs and injustices they created. He also continues to be mistaken in his interpretation of eminent domain cases from other states.

I am glad that Professor Mogk now admits that the Poletown decision did not really create 6000 jobs at the new GM factory. Although the City of Detroit and GM claimed that 6000 jobs would be created there, in reality it has never employed anywhere near that many, with employment peaking at about 3600 during the late 1990s. This fact illustrates one of the main flaws of economic development takings: that the new owners are not legally required to actually provide the economic "benefits" that were used to justify the condemnation in the first place. As a result, powerful private interests such as GM can persuade local governments to condemn property for their use on the basis of dubious predictions of public benefit that they do not have to live up to once the legal proceedings are over.

Professor Mogk suggests that the figure of 6000 was merely an estimate of " the number to be moved out of the City, if the Poletown plant were not built." In reality, the Chairman of GM specifically promised the City that "General Motors Corporation will . . . cause an automotive assembly plant . . . employing approximately 6,000 people, to be built upon this site." Letter from GM Chairman Thomas Murphy to Detroit Mayor Coleman Young, Oct. 8, 1980. For those interested, Murphy's letter is reprinted in the Poletown decision itself. Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 652 n.6 (Michigan, 1981) (Ryan, J., dissenting). The fact that GM got away with disregarding this widely publicized commitment says a great deal about the true nature of economic development condemnations.

Professor Mogk also argues that Poletown may have created many more jobs through a "multiplier effect" by means of which the GM factory may have increased employment at other local businesses. Unfortunately, this claim ignores the fact that the 4200 residents' homes, 400 businesses, 16 churches, and several hospitals and schools wiped out by the Poletown condemnation also probably created numerous jobs in the community beyond those held by the people they directly employed. The $200 million that the City of Detroit spent to "prepare" the site for GM could also no doubt have created numerous jobs and promoted development in other ways. Like the Poletown Court itself, Professor Mogk accepts all claims that the GM condemnation created benefits, while ignoring its grievous costs.

Furthermore, Professor Mogk's estimate of the size of the "multiplier effect" is based on a study of the impact of a Mercedes plant built in an "open field" in Alabama in the 1990s, circumstances considerably different from 1981 Detroit, to say the least. Economists recognize that estimating multiplier effects is a chancy business under the best of circumstances. Estimating them on the basis of evidence from a very different situation is even more problematic.

Professor Mogk is also unpersuasive in his attempt to make use of the fact that some of the Poletown property owners were eager to leave and willing to accept the terms offered by the City of Detroit. This ignores the reality that thousands were not willing to sell and considered the City's offer grossly inadequate. See, for example, the detailed history of the case in Jeannie Wylie's book, Poletown: A Community Betrayed (Univ. of Illinois Press, 1989). The resistance of numerous Poletown residents to the condemnation of their property is why the Poletown case ended up in court in the first place. No one objects to GM or the City buying property from willing sellers. The wrong the City committed was its callous decision to confiscate the homes, churches, and businesses of thousands of unwilling victims.

Professor Mogk's claim that economic development projects cannot be established without the use of eminent domain is contradicted by the obvious fact that numerous factories, shopping malls, and other projects are constructed without it every day. In his previous post, he partly took note of this fact when he conceded that condemnations are "not needed to further economic development where the market is strong and growth is occurring." Obviously, it should be easier, not harder, for developers to buy the land they need in a depressed area where property values are likely to be low and owners eager to sell.

In defending his claim that Hathcock is a unique aberration, Professor Mogk argues that the recent Supreme Court of Illinois decision in Southwestern Illinois Development Authority v. National City Environmental did not forbid "economic development" condemnations because it ruled that the condemning authority in that case was improperly seeking to advance a private interest. The Illinois Court did indeed hold that there was an illegal motive present. But that did not prevent it from also concluding that a "contribu[tion] to economic growth in the region" by the new owner of the property cannot be a legitimate ground for condemnation because "incidentally, every lawful business does this." Southwestern Illinois Development Authority (SWIDA) v. National City Environmental, LLC, 768 N.E.2d 1, 9 (Illinois 2002). A court can have more than one justification for a decision. And, as noted in my previous post, its reason for rejecting the economic development rationale was almost identical to that of the Michigan court in Hathcock. The other points Mogk makes about SWIDA are likewise unpersuasive, because they all sidestep the plain fact that the Court specifically considered the economic development rationale and rejected it.

I have gone on for too long. The bottom line is that there is little reason to believe that "economic development" takings actually benefit the general public, and much evidence showing that they primarily serve the interests of politically connected corporations and developers, usually at the expense of the poor and politically weak. Poletown was only the most notorious example of this trend. A society committed to private property rights should not allow such flagrant abuse of power to continue.

Friday, September 10, 2004

Forgery of documents intended to be used in an election:

If the Killian letters (the ones that purport to relate to aspects of President Bush's National Guard service) are indeed forged, the forger might be criminally prosecuted.

My sense is that most forgery statutes don't apply to frauds aimed at influencing votes, rather than to getting money or property or the like. I might be mistaken, but that's what my tentative looking around suggests. Nonetheless, I've found at least two statutes (one with the help of reader William Modahl, who also raised the broader question for me) that specifically do prohibit election-related frauds:

  1. NH Rev Stat 666:6: "Any person who shall, without authority, sign the name of any other person to any letter or other document, or falsely represent that any other has written such letter or document, knowing such representation to be false, for the purpose of influencing votes, . . . shall be guilty of a misdemeanor."

  2. Ohio Rev. Code § 3517.21: "No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign . . . [f]alsely identify the source of a statement, [or] issue statements under the name of another person without authorization." [R.C. § 3517.992 makes this a misdemeanor.]

Of course, the forgery likely wasn't done in New Hampshire or Ohio. But my sense — again, tentative — is that because the forgery was likely an attempt to influence (among other things) elections conducted by New Hampshire and Ohio of Hampshire and Ohio presidential electors, those states would indeed have jurisdiction to try the forgers. If any jurisdiction experts can tell me I'm wrong, please do.

But what about the First Amendment? The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they're deliberate lies (see New York Times v. Sullivan); and at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn't for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like. See State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998).

On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement seems to be a false statement about a particular person (whether or not it's actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn't impose any constitutional barrier to punishing it.

Note that the knowledge requirement means (quite rightly) that if CBS was the unknowing victim of the fraud (if, of course, there was a fraud), it and its reporters wouldn't be criminally liable.

Dr. Amy Sisley reports having been misquoted by Reuters:

I just heard back from Dr. Sisley, who was quoted by Reuters about spinal cord injuries and firearms (see this post). She reports that what she told Reuters -- and what Reuters should have said -- is that 90 percent of spinal cord injuries caused by violence (which are a minority of all spinal cord injuries) in the United States are caused by gunshot wounds. The "caused by violence" was incorrectly omitted by Reuters.

Pennsylvania law that requires ISPs to block alleged child porn sites

has just been struck down, both on First Amendment grounds and dormant Commerce Clause grounds. I haven't read the entire opinion, but what I have read suggests that the court's main reasons were: (1) given existing technical limitations, the law essentially pressures ISPs into blocking a lot of fully protected material as well as the unprotected child pornography; (2) the orders are issued before a full trial on the merits and are thus unconstitutional prior restraints (see the discussion of prior restraint law in this article for more); and (3) the law ended up excessively interfering not just with access to protected material by Pennsylvanians but also with such access by residents of other states, which makes the law an unconstitutional state regulation of interstate commerce (not all such state regulations are unconstitutional, but some are). The opinion is here.


Scott Martens (Fistful of Euros) criticizes Dan Pipes, arguing that he misrepresents certain French-language writings by Tariq Ramadan. In passing, he also mentions:

Monolingualism has costs. Eugene Volokh, for example, has posted a link to Pipes' piece but says that he does not know the facts of the case well enough to judge. Ted over at Crooked Timber makes the same claim to uncertainty. But, a cursory look at the French articles cited makes Pipes' case worse than contestable . . . . Never underestimate the value of knowing a foreign language. . . .

I'm all for knowing foreign languages, and I wish I knew more. But I should point out that failure to know French doesn't necessarily constitute "monolingualism" . . . .

UPDATE: Reader Luke White writes, "Of course a failure to know French constitutes monolingualism, in exactly the same way a failure to ally with the French does unilateralism."

Chicago Sun-Times tells me they'll "clarify"

their confusion of machine guns for assault weapons in the opening paragraph of Tuesday's editorial. Looking forward to seeing the item when it's published.

Document Disclosure: I don't care much about Swift Vets, Winter Soldiers, Air National Guard stories or draft deferments. I am more concerned about what a prospective President will do over the next four years than what he may have done (or not done) decades ago. And I have no idea what to think about this new bombshell, hoax, or whatever it is, but I do have one observation about the respective campaigns.

When CBS news disclosed the Killian memos, the White House passed them along to other journalists, consistent with the Bush campaign's stated (albeit belated) policy of disclosure. When questions were raised about Kerry's military service, on the other hand, the Kerry campaign did not authorize the release of Kerry's complete military files. (Nor has Kerry authorized Brinkley to share copies of his diaries or disclosed relevant information from Theresa Heinz Kerry's tax returns.) For all those so quick to assume the White House had been keeping the Killian documents under wraps, isn't it about time to call for full disclosure? C'mon, it's not so hard.
More on eminent domain and the Michigan Supreme Court:

Professor John Mogk wanted to jump in again to the thread we had on the subject in August; the latest entry was Ilya Somin's post, which links back to the older posts, and here's Professor Mogk's response:


On August 17 I replied to Professor Somin's comments posted on August 9, 2004, regarding my view that the Michigan Supreme Court's recent Hathcock decision overturning Poletown will have a crippling effect on Detroit's future development. Somin's response to my reply was posted following mine. He is completely off base in his analysis.

First, on August 17 he had two criticisms regarding the facts of the Poletown case: (1) GM did not commit to producing the economic development that justified the use of condemnation and (2) 6000 jobs were never generated at the plant, as expected.

The fact is that a $2 billion industrial complex was built in the early 1980s on the Poletown site, operates today and will most likely continue for decades to come. GM committed to fulfilling a development agreement with the City. Thereafter, GM upped its commitment in the 1990s by expanding its Poletown auto body facility by 277,000 sq/ft at an investment of an additional $250 million.

Critics of Poletown have skewed the debate with a focus upon 6000 jobs, which were the number to be moved out of the City, if the Poletown plant were not built. The total economic impact of Poletown involves jobs to be captured directly at the plant and indirectly through a significant multiplier effect applicable to auto manufacturing operations, in addition to increased tax revenues. It is naive to believe that planners and policy makers view the public benefits any other way.

With the expectation that Poletown economic impact assessments would be suspect, I offer the figures from the Troy State University economic impact assessment for a much smaller Mercedes plant built in an open field of Alabama in the mid-1990s. The plant created 1500 auto assembly jobs and was expected to produce 10,000 direct and indirect jobs when fully operational (in supplier plants, warehouses, transportation operations, etc.). The multiplier effect was 6/1. Employment levels in the Poletown plant have reached close to 4000, as the auto industry has continued to be buffeted by foreign competition.

Second, Professor Somin represents an inaccurate picture of the condition of the Poletown neighborhood in the late 1970s. According to The Detroit News reporting on conditions in the neighborhood at the time: "Many homeowners agreed at the outset to sell their homes to the city and leave their crumbling neighborhood. The old workingmen's houses, once solid, were losing mortar or siding. Blight was already driving residents north in the city and to Warren and Sterling Hts." See:

The average price housing in the neighborhood at the time was $13,000 and under the federal relocation act each homeowner received up to an additional $15,000 to purchase a standard home in another neighborhood, invariably much newer and blight free, and $3500 in relocation assistance.

Third, Professor Somin's has offered a tortured and what I believe to be a totally incorrect interpretation of Southwestern Ill. Dev. Auth. v. National City Envtl., LLC., 710 N.E.2d 896 (1999) to criticize my position that Detroit after Hathcock stands alone among the largest cities in the Country in being unable to utilize condemnation to foster economic development authorized by the legislature that serves a legitimate public interest and provides a predominant public benefit. This is the Poletown standard for "general economic development" under which Detroit acted prior to the standard being scrapped by the Hathcock opinion.

SWIDA was an Illinois state empowered development authority which issued bonds to finance a race track for a private owner. The success of the private race track dictated that additional parking be built. The court found from the evidence that parking could have been provided on the premises of the track, but the private owner induced SWIDA to condemn the adjoining parcel owned by a metal recycling center to meet SWIDA's expanded parking needs.

The Illinois Court expressly found that: "While the activities here were undertaken in the guise of carrying out its legislated mission, SWIDA's true intentions were not clothed in an independent, legitimate governmental decision to further a planned public use. .... Clearly, the foundation of this taking is rooted not in the economic and planning process with which SWIDA has been charged. Rather, this action was undertaken solely in response to Gateway's expansion goals and its failure to accomplish those goals through purchasing NCE's land at an acceptable negotiated price. It appears SWIDA's true intentions were to act a a default broker of land for Gateway's proposed parking plan."

Readers should juxtapose the Illinois court's express finding of private purpose with the Michigan court in Poletown which determined: "The power of eminent domain is to be used in this instance primarily to accomplish the essential public purpose of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental."

Moreover, totally unlike Hathcock, but identical to Poletown, the Illinois court relies upon the reasoning in the Berman case in which the U.S. Supreme Court interprets the breath of the term "public use" contained in the 5th Amendment to the U.S. Constitution to encompass the expansive boundaries of the "police power" and equates the term to "public purpose." Just the opposite view is found in Hathcock which characterizes any reference to Berman in interpreting the Michigan Constitution as "disingenuous" and rejects any notion that "public use" and the police power are inextricably related.

Lastly, Professor Somin's misplaced belief that it is possible to assemble major tracks of distressed urban land for redevelopment through negotiated purchases alone might be treated as vain humor, if did not address one of the nation's most pressing needs - reversing urban decline.

Urban areas that experienced their zenith in the economy of the early and mid-20th century were broken into land use patterns that are often completely incompatible with 21st century economies. These areas have a multitude of small, fragmented and obsolete parcels. Each parcel has multiple property interests outstanding that must be acquired or removed to sustain redevelopment, such as freehold estates, future interests, easements, covenants, leaseholds and security interests, any one or more of which could be jointly held. In addition, owners of these interests are often difficult to identify and reach.

For example, in order to assemble 400 acres in the late 19th century Poletown neighborhood, several thousand parcels had to be acquired, involving as many as 10,000 property interests. On the other hand, in the 21st century ex-urban, undeveloped area of Hathcock, only 46 parcels were need to acquire 300 acres.

In the case of Poletown, there was no private development interest and it was fostered by the city. In Hathcock, the land is located in a growth area adjacent to one of the world's busiest international airports and is under increasing private development pressure.

The Poletown project in Detroit could not have been undertaken without the use of condemnation. It is reasonable to conclude that the Hathcock project could have been, or another would soon take its place. Attorneys for Wayne County, the condemning authority, announced after the Hathcock ruling that the project would proceed without the use of condemnation.

Rather than overturning Poletown, the Michigan Supreme Court should have tailored the Poletown standard to prohibit the use of condemnation under the development circumstances involved in Hathcock, if it so desired, but allowed for the use of the power where private land assembly is impractical and development pressure virtually non-existent. Professor Somin needs a reality check, as does the Michigan Supreme Court.

Thursday, September 9, 2004

Does Failing to Deliver E-Mail Violate the Wiretap Act?: In about two weeks, the Second Circuit will hold oral argument in the case of Hall v. Earthlink. In this case, an ISP cut off access to a customer's e-mail account after wrongly concluding that the customer was a spammer. It took six days for the ISP to realize the error and apologize; rather than accept the apology and the ISP's officer of free service, the customer sued the ISP for a million bucks plus attorney's fees. The customer sued the ISP under a range of theories, including that the failure to deliver his e-mails was a violation of the Fedetal Wiretap Act. The district court rejected the customer's arguments in an opinion available here.

   I can understand why the customer sued under the Wiretap Act: the Wiretap Act has high statutory damages, and allows successful plaintiffs to recover punitive damages and attorney's fees. (I go into the details of this remedial scheme in this article.) Still, the theory doesn't work. The Wiretap Act prohibits use of a device to intercept a private communication sent between two parties; the point of the Act is to avoid snooping into another person's private communications. (For more, see here.) To that end, the statute excludes from its protection any instruments, equipment, or facilities "being used by a provider of wire or electronic communication service in the ordinary course of its business". 18 U.S.C. 2510(5)(a). The idea is that if there is no third-party snooping into private communications, the Wiretap isn't implicated; the details of how an ISP does or does not deliver communications isn't something the Wiretap Act regulates. Because the alleged failure to deliver the e-mail occured in the ordinary course of the ISP's business, the exception pretty clearly covers this case and the Wiretap Act was not violated.
For Neal Stephenson junkies,

preferably ones who remember his books even more carefully than I do, The Scrivener has a puzzle. (Note that, as later post makes clear, he's looking for someone besides the obvious Enoch Root.)

Crime-Facilitating Speech:

Finally finished the latest (though certainly not the last) round of edits on this, filled in a bunch of blanks, and sent it out to a bunch of law reviews; it's also available here. I've really enjoyed working on the piece, but I'm very, very glad to get it out of my hair, at least temporarily . . . .

Swiping Doorknobs and the Fourth Amendment: Talkleft links to an interesting story about some Fourth Amendment cases currently winding their way through the lower courts. The question is whether the police need a warrant to swipe a person's home doorknob with a drug-detecting cloth; the police then test the cloth to see if contains microscopic particles of a controlled substance. You may have seen this at airports when they inspect bags for traces of explosives by swabbing them with a special cloth and then analyzing the cloth.

   If traces of illegal drugs are found, the police can then use this evidence as support for probable cause to search the house. The theory, apparently, is that drug residue found on a house doornob increases the likelihood that there are drugs inside the home, and thus can help establish probable cause. (This theory sounds a bit lame to me, but I suppose it depends on the specific circumstances.)

    The question is, does swiping the doorknob and analyzing it for controlled substances violate the Fourth Amendment absent a warrant? It's a difficult question, I think. On one hand, there is a strong argument that pulling the particles off a doorknob by swiping it with a special cloth constitutes a Fourth Amendment "seizure." The doorknob is the homeowner's property, and pulling particles from that property seizes those particles. The subsequent analysis is not a "search" under United States v. Jacobsen, but the initial removal is arguably a seizure requiring a warrant. On the other hand, the residue on a doorknob may be seen as analogous to the garbage bags left out on the street in California v. Greenwood. I suppose I would want to know whether the swab only pulls away particles that are routinely picked up when people use a doorknob to open a door, or whether it has some special properties that allow the cloth to pull away particles that a normal door-opening would not. Either way, very interesting case.
Acceptable amount of falsehood:

The correspondent I mentioned in the post below, after asking me "What is an acceptable number [of injuries from gunshot wounds]?," also wrote, apropos this post:

Also, regarding the quoting of the police chief- 1) Do you really expect him to say, 'Nobody has an inalienable right to run around with a gun equipped with a magazine capable of holding multiple bullets and that has a rate of fire above a certain acceptable level!' Umm, no. It is called a sound bite. 2) Perhaps he is merely allowing himself the same level of hyperbole that the gun advocates (see! I didn't use the word lobby!) use when they make the claim that restricting assault weapons (even in a flawed way) is tantamount to someone raiding their house looking for illegal bb guns.

This seems to me a mighty casual attitude about the truth. True, sound bites must involve some oversimplification. But here the police chief is describing one thing — semiautomatic weapons — using something that is nearly its antonym, machine guns. A machine gun is defined as a weapon that is fully automatic, not semiautomatic. A semiautomatic is defined as a weapon that is not fully automatic, and thus not a machine gun. (I say "nearly" because the two terms put together don't cover all guns: there are also revolvers, pump-, bolt-, and lever-action guns, and other types. But they are mutually exclusive, and in important ways the opposites of each other.)

Now it may be hard to come up with a simple soundbite to accurately describe assault weapons, because assault weapons are such a hard-to-define and often ill-defined term. That, I suspect, is the fault of those who introduced these bans. But in any event, it's no excuse for saying things that are literally false and that convey a materially false impression.

Speaking of hyperbole, I actually haven't heard "gun advocates . . . make the claim that restricting assault weapons (even in a flawed way) is tantamount to someone raiding their house looking for illegal bb guns." Perhaps some have made the claim, but it would have been nice if the reader had pointed me to specifics (just as I pointed to specifics in my posts).

But beyond this, surely it would be very bad indeed for us to tolerate government officials' making materially false statements — and not just obvious hyperbole, but statements whose falsehood is hidden enough from most listeners that it's likely to mislead them — simply because some unspecified people on the other side have likewise made exaggerations themselves. Surely that is not the way towards rational policy discussions.

Finally, please note that the one distinction that the assault weapons ban does not make is based on a gun's rate of fire. I know of no evidence that assault weapons have a higher rate of fire than other semiautomatic guns (of which there are many times more than there are assault weapons) that aren't covered by the assault weapons ban.

The ban does limit magazine size, which my correspondent recognizes is a separate issue. But the overwhelming majority of all shootings in the U.S. involve fewer than 10 rounds (generally the magazine size cutoff in the ban) being fired. When I last checked (in Gary Kleck's Targeting Guns), nearly all mass shootings were done in circumstances where the shooters had plenty of time to reload. And reloading a semiautomatic gun that has a fully assault-weapons-ban-compliant 10-round magazine takes a second or two. (Of course if the correspondent's conclusion from this is that he wants to ban all semiautomatics, or all guns "equipped with a magazine capable of holding multiple bullets," which is to say all guns other than single-shot shotguns or derringers, that's fine — but then he should acknowledge that he's advocating much more than just a ban on "assault weapons.")

Acceptable numbers of injuries:

A reader writes, responding to my post about spinal cord injuries:

Regarding your recent post on spinal injuries and gunshot wounds, I am wondering what is an acceptable level of gunshot-inflicted wounds. For me, the level is extremely low — about equivalent to the number of injuries that are created by, say, policemen in the course of their duty. I am wondering what level is acceptable to you so that someone can have the right to play with a gun.

It seems to me that this rather misconceives the issue.

First, whatever the answer, I take it that we'd agree that news accounts should contain accurate data, rather than data that's off by close to an order of magnitude. If a news account quotes someone as saying that 90% of all spinal cord injuries are caused by firearms, and it turns out that the number is less than 11% — assuming, that is, that the 11% number is correct (and I got the number from what seems to be an impartial and credible source, but of course it might still be wrong) — then the difference seems material, and worth correcting.

Second, the question isn't what's an acceptable level of gunshot-inflicted wounds in the abstract, just as we don't ask what's an acceptable level of car-inflicted wounds in the abstract (that number is 40,000 deaths per year, plus many more injuries). Rather, two key questions (though not the only ones) for any gun control proposal are (1) how much it would reduce the wounds, and (2) how much it would increase other wounds and injuries. I suspect, for reasons I've blogged about before, that gun bans wouldn't much reduce gunshot wounds (since the overwhelming majority of gun suicides would still commit suicide through other means, the overwhelming majority of gun killers would still get guns illegally, and accidents account for only a small fraction of gun fatalities though a slightly larger fraction of nonfatal gun wounds). I'm also quite sure that assault weapons bans wouldn't reduce them at all (since people would just use other pretty much equally lethal weapons instead).

And at the same time, gun bans would also cause some more homicides, assaults, rapes, and other crimes, because law-abiding citizens would no longer be able to defend themselves with guns. Guns, like cars, aren't just to be played with. They're also useful devices that are used hundreds of thousands of times per year (the National Crime Victimization Survey gives numbers around 80,000-100,000, many other surveys give numbers of 500,000 to 2.5 million, and I suspect the right answer is probably in the high hundreds of thousands) for self-defense. Perhaps one may say that on balance they do more harm than good, and also that gun bans do more good than harm (a very different question). But it's not just a matter of saying "More than X hundred injuries per year, so ban them," for guns, for cars, for knives, or for other devices.

Now this is pretty bad (if the police chief is quoted correctly):

According to,

Nothing gets Los Angeles Police Chief William Bratton more impassioned than talking about the impending expiration of the 10-year-old assault weapons ban.

"Nobody has an inalienable right to run around with a machine gun," he said. "I'm sorry, that's insanity!" . . .

As I mentioned below, the assault weapons ban is not about machine guns. Check out the text (secs. 110101-110106, which repeatedly refers to "semiautomatic" weapons.

Now surely a police chief knows the difference between a machine gun and a semiautomatic, even if the Chicago Sun-Times editorialist might not. Did ABC misquote him? (I just called LAPD Media Relations and left a message asking whether that might have happened.) Does the chief just have no idea what the statute he's publicly praising really does? Did he know that the statute was about non-machine-guns, but said machine gun in any event, either because he somehow misspoke (though it's an odd slip to make) or for some other reason?

Thanks to reader William Steinberg for the pointer.

Spinal cord injuries and gunshots:

The Reuters story I mentioned below reports:

Amy Sisley, an emergency room doctor at the University of Maryland Medical Center, speaking on behalf of Physicians for Social Responsibility . . . said 90 percent of spinal cord injuries in the United States are caused by gunshot wounds and noted that $1.8 billion a year is spent on spinal cord injuries.

On the other hand, the Spinal Cord Injury Information Network, hosted at the University of Alabama, reports that acts of violence caused 11.2% of spinal cord injuries (presumably a smaller percentage comes from acts of violence that involve firearms). The Centers for Disease Control likewise gives data inconsistent with the 90% figure:

The leading causes of [spinal cord injury] vary by age. Among persons under age 65, motor vehicle crashes are the leading cause. Among persons over 65, falls cause most SCIs.

Many thanks to Nancy Johnson and another reader for the pointers.

UPDATE: I called Dr. Sisley to ask her about this yesterday, and she was kind enough to call back today. She reports that the error is Reuters', which misquoted her -- I have more on this here.

Help! I'm being oppressed!

It just struck me: The professor of journalism ethics who was complaining about "assault[s]" and "attack[s]" on the media -- the assaults and attacks being in the form of public criticism of alleged media bias -- also complained about how some hypothetical story is "nothing but a Pentagon publicist's brainstorm seized on by right-wing bloggers."

I think he's trying to criticize right-wing bloggers. He's "inspect[ing us] for any trace of undesirable political tilt." He's part of "a free-floating cadre of [anti-]rightist warriors" who's "denounc[ing]" us. He sounds "hostile and suspicious" to me.

Isn't he, by his own reasoning, now "attack[ing]" us, "assault[ing]" our "commitment to do [our] best to determine and tell the truth," and posing a "compelling danger" to us?

Newspaper editorials that don't know what they're talking about: The Spoons Experience points to the opening paragraph of this this Chicago Sun-Times editorial:
How ridiculous is the notion that private citizens should be able to tote machine guns? It takes someone with extreme positions like Alan Keyes to righteously argue that cause. Most Americans — Democrats and Republicans — are against claiming Second Amendment protections for these guns and support the federal assault weapons ban. . . .
Except that the assault weapons ban does not ban machine guns. Machine guns have been largely banned for civilian possession (except for about 100,000 that were grandfathered in, and that are almost never used in crimes) since the mid-1980s. By its own terms the assault weapon ban applies to some semiautomatic guns — guns that shoot one round per trigger pull, and that are not materially more lethal than most other guns out there. In fact, here's a link to the statute, and a quote from the start of the key provision:
SEC. 110102. RESTRICTION ON MANUFACTURE, TRANSFER, AND POSSESSION OF CERTAIN SEMIAUTOMATIC ASSAULT WEAPONS. (a) RESTRICTION- Section 922 of title 18, United States Code, is amended by adding at the end the following new subsection: '(v)(1) It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon.'
If you'd like, go to the site and count the number of times the Act uses the word semiautomatic. There are of course other problems with the editorial — but once there's such a doozy in the first sentence, it's kind of pointless to discuss them. What does it say when an editorial in a major newspaper has such a glaring factual error (and one that's highly material to the editorial's thesis)? Small wonder that many people, especially many people who care about gun rights, have lost confidence in the media's competence and fairness (for more on the latter, see also here). I've sent a letter to the editor (S. Huntley, at shuntley at pointing out the error, and asking whether they would publish the correction; I will report back if I hear anything on this.
Attacks and assaults on the media:

A Washington & Lee journalism ethics professor denounces an "assault" on journalists' "commitment to do [their] best to determine and tell the truth," an "attack," a "compelling danger." What is that fearsome danger?

It's hard now even to write for publication without being uncomfortably aware of just how thoroughly what you say is going to be inspected for any trace of undesirable political tilt and denounced by a free-floating cadre of rightist warriors.

If that's apparent to me as a mere columnist, I can only imagine the current mind-set of supervising editors: If we give prominence to this story of carnage in Iraq, will we be accused of anti-administration bias? And — here it gets interesting — will we therefore owe our readers an offsetting story, perhaps an inspirational tale of Marines teaching young Iraqis how to play softball?

Now, both stories may well be integral to news of Iraq. If so, both should be told. The problem arises when the softball story is nothing but a Pentagon publicist's brainstorm seized on by right-wing bloggers — and the pressure to tell it comes not from a principled desire to deliver a factual account that is broadly emblematic of significant happenings in Iraq, but from a gutless attempt to buy off a hostile and suspicious fragment of the audience base. . . .

Good heavens! There are people out there ("a free-floating cadre of rightist warriors") who actually have the temerity to "inspect[]" stories "for any trace of undesirable political tilt." And when they think they find such tilt, they shamelessly "accuse[ the newspaper] of anti-administration bias." Not only that, but they have the chutzpah to be "hostile and suspicious."

How dare they? Don't they know that newspapers never have political tilt or anti-administration bias, so any such accusations are obviously falsehoods or attacks? Or if it's theoretically possible — just indulge this wild speculation for a moment — that newspapers might conceivably have political tilt and anti-administration bias, might it be actually be understandable if readers and commentators inspect newspapers for such tilt, point out such bias when they see it, and even be suspicious about it or hostile because of it?

If I'm not mistaken, the media tend to take the view (generally quite a correct view) that part of their job is to scrutinize the actions of powerful institutions (such as the government), and sometimes to criticize those actions through their opinion pages or point out factual problems with those actions in their news stories. That way, the media become an important check on possible abuse of power.

Now readers and commentators in other media are doing the same to the media. But that's completely different of course — an attack, an assault, a compelling danger, all because some people ("right-wing bloggers" who generally have much less power and influence than the media do) are criticizing a powerful institution.

Thanks to InstaPundit for the pointer.

Organic Food Ain't All That: The Los Angeles Times ran an interesting story about organic food over the holiday weekend. The piece opens noting the explosive growth in the organic food industry over the past several years, but then asks (and answers) the money question about organic food:
as organic products — and their claims to superiority — have grown more common, scientists, policy analysts and some consumers have begun to ask for proof. Where's the evidence, they ask, for the widespread belief that organic foods are safer and more nutritious than those raised by conventional farming methods?

The short answer, food safety and nutrition scientists say, is that such proof does not exist. Indeed, by one well-established measure of healthfulness — contamination with fecal matter and potentially harmful bacteria — some organic foods may pose greater risks to consumers.
Indeed, the article notes, the organic food industry has begun to acknowledge that it lacks empirical evidence to support the claim that organic food is healthier or better for the environment. What does this mean for the future of the industry? The article offers some speculation:
Right now, the organic movement is fairly strong because it's generally recognized that these products are safer and more nutritious," said Christine Bruhn, director of the University of California's Center for Consumer Research at UC Davis.

But, Bruhn said, the organic business may be in trouble if consumers come to believe that the products are not necessarily healthier for them. "It's a market philosophy that's built on a house of cards. You blow those cards and there might be some tumbling," said Bruhn.
My prior posts on organic agriculture (from 2002) are here, here, and here.
Hussein's Gun: In response to this post on whether Kerry's receipt of a shotgun at a campaign rally violated federal law, several readers asked about President Bush's possession of a gun that formerly belonged to Saddam Hussein. The gun is kept in the White House, according to this report. Yet, according to the President's remarks at a June 10, 2004 press conference, it does not appear Bush is violating any relevant gun laws, as the gun does not belong to the President but to the U.S. government. The relevant text from the press conference follows. Thanks to those readers who forwarded this information.
Q: Mr. President. You do have now the personal gun of Saddam Hussein. Are you willing to give it to President al-Yawar as a symbolic gift, or are you keeping it?

THE PRESIDENT: What she's referring to is a -- members of a Delta team came to see me in the Oval Office and brought with me -- these were the people that found Saddam Hussein, the dictator of Iraq, hiding in a hole. . . . needless to say, our people were thrilled to have captured him. And in his lap was several weapons. One of them was a pistol. And they brought it to me. It's now the property of the U.S. government. . . .
Fine objective journalism on the assault weapons ban:

Check out this Reuters story:

Gun control activists, health care advocates and law enforcement groups geared up on Tuesday for a last-ditch effort to prevent a 1994 ban on assault weapons from expiring next week, but even its most ardent backers acknowledge the drive is all but futile.

But the influential National Rifle Association gun lobby, meanwhile, said it would "not take anything for granted" as it works to send the ban into oblivion.

Pro-control forces are "activists," "advocates," or "groups." The anti-control forces are the "gun lobby." As I've mentioned before, would journalists who say "gun lobby" call NARAL and other groups on NARAL's side of the issue the "abortion lobby"? Would they call the Reporters' Committee for Freedom of the Press the "press lobby"? Would they call the NAACP the "black lobby"?

Would they say "The gun control lobby, health care lobby, and law enforcement lobby geared up in favor of renewing the ban . . . . But the influential gun rights advocates at the National Rifle Association, meanwhile, said . . ."? Well, we see that this writer certainly doesn't.

The story goes on with twelve paragraphs, of which each one paraphrases, quotes, or describes the stance of a pro-gun-control advocate. Only three of them even mention the views of pro-gun-rights advocates, and there only to say that "the NRA has fought [the ban] fiercely," to quote a pro-gun-control advocate ruing the NRA's power, and to say that Republican leaders oppose the ban -- none of them express the pro-gun-control advocates' arguments:

Ban advocates called on President Bush to intervene and get Congress to act. But Bush, who in his 2000 campaign promised to sign legislation, has been publicly silent for months as the clock ticked.

The ban on such weapons as Uzis and AK-47s will expire at midnight next Monday unless Congress votes to renew it. While warning that high-powered guns and large-capacity ammunition clips could flood America's streets, even the most ardent backers of the ban in Congress admitted that it is almost certain to lapse.

"The likelihood (of extension) is remote," said California Democrat Sen. Dianne Feinstein. House Republican aides concurred, and predicted that ban advocates would not have an opening to try to get legislation through this week.

"I'm trying to put pressure on the president," said New York Democrat Carolyn McCarthy, elected to Congress after her husband was slain in 1993 by a gunman on a Long Island, New York, train. "This whole thing is in Bush's court."

Several public opinion polls, including one released this week by the National Annenberg Election Survey, have found deep public support for the ban, even among many gun-owners and conservatives. But the NRA has fought it fiercely.

"The NRA is an extremely powerful group, there's no two ways about it," said McCarthy, adding ruefully that politicians "don't want to tick them off" two months before elections.


The Senate did vote to extend the ban earlier this year, but as part of a larger bill on gun-maker legal protections that was later sunk at the NRA's behest. Republican leaders in the U.S. House of Representatives strongly oppose the ban and have not allowed a vote on it. McCarthy had hoped to force a vote this week, but said she would not be allowed to bring it to the floor under House rules.

With the clock ticking, groups favoring a ban on the high-powered weapons have tried to draw public attention to it. The Brady Campaign to Prevent Gun Violence has a full-page ad running in the New York Times and Washington Post asking, "Why does President Bush want to put cop-killing guns back on the street?"

More than a dozen leading health groups, including the American Academy of Pediatrics, the Physicians for Social Responsibility and the American College of Emergency Physicians jointly called for the ban's extension on Tuesday, describing gun violence as a public health crisis.

"It is a health-care crisis and it is an incredibly costly health-care crisis," said Amy Sisley, an emergency room doctor at the University of Maryland Medical Center, speaking on behalf of Physicians for Social Responsibility.

She said 90 percent of spinal cord injuries in the United States are caused by gunshot wounds and noted that $1.8 billion a year is spent on spinal cord injuries.

Major law enforcement groups, including police chiefs from big U.S. cities, plan to rally for the ban's extension at a Washington memorial for fallen police officers on Wednesday.

Then, finally, two, count 'em, two paragraphs from pro-gun-rights forces, both quoting only the NRA (as opposed to the many pro-gun-control people and groups quoted or paraphrased in the earlier paragraphs), and only one counting anything remotely approaching a substantive argument:

The NRA in a statement posted on its Web site dismissed the campaign for the ban as a "PR show to blame inanimate objects for the acts of criminals."

But warning its well-organized and highly motivated members against complacency, the NRA said, "We have come too far in the past 10 years not to pull out all the stops in the next week and a half to ensure that this ban expires as Congress intended, and becomes nothing more than a sad footnote in America's history."

Of course, to Reuters' credit, this is followed by a couple of paragraphs discussing the substantive anti-assault-weapons-ban arguments: that even a pro-gun-control leader acknowledged that the current assault weapons ban had no real crime-fighting effect; that many serious observers argue that assault weapons are not materially more dangerous than other weapons that could easily be substituted; that the assault weapons ban turns on largely irrelevant cosmetic factors such as whether the gun has a bayonet lug; and that before the assault weapons ban, assault weapons were likely used in about 2% of all gun crimes? (See here for pointers to supporting evidence.)

Just kidding. Of course there are no such paragraphs.

Many thanks to Dan Schmutter for the pointer.

What do you do with a court opinion like this?

(Warning: Pretty technical legal stuff ahead.)

Florida has enacted the Florida Religious Freedom Restoration Act, which presumptively mandates religious exemptions from generally applicable laws that end up substantially burdening religious beliefs. (The government can rebut this presumption by showing that denying the exemption is necessary to serve a compelling government interest.) A Boca Raton city ordinance bars vertical markers on graves in a city-run cemetery; some people sued, claiming that this substantially burdened their religious beliefs, because their beliefs led them to prefer vertical markers.

The Florida Supreme Court rejected this claim, and I have no objection to this. But here's how it rejected it -- on pp. 18-19 the court says this (paragraph break added):

The protection afforded to the free exercise of religiously motivated activity under the FRFRA is broader than that afforded by the decisions of the United States Supreme Court for two interrelated reasons. First, the FRFRA expands the free exercise right as construed by the Supreme Court in Smith because it reinstates the Court's pre-Smith holdings by applying the compelling interest test to neutral laws of general application.

Second, under the FRFRA the definition of protected "exercise of religion" subject to the compelling state interest test includes any act or refusal to act whether or not compelled by or central to a system of religious belief. The legislative history of the FRFRA suggests that in order to state a claim that the government has infringed upon the free exercise of religion, a plaintiff must only establish that the government has placed a substantial burden on a practice motivated by a sincere religious belief.

SO far so good. But then on p. 21, the court says:

[W]e hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.

So what are courts and government officials to do? At first, the court says that religious motivation is enough to presumptively get an exemption, and that it doesn't matter whether the action or refusal to act is compelled by one's religious belief. But then it holds that the question is whether the action is compelled or forbidden (which means that refusal to act is compelled) by religious belief. Seems pretty inconsistent to me.

A bit more on Malkin and Muller:

Michelle Malkin has a post that argues that Eric Muller and Greg Robinson have made factual errors in things they've posted in various places, including on this blog. Muller and Robinson in turn have posted on the subject here. It may be somewhat old news, but since it involves claims of errors, including ones that I'm told were in items posted on this blog, I thought I'd blog a link to those claims.

Wednesday, September 8, 2004

Does It Matter Where You Went to College?:

Gregg Easterbrook offers some thoughts, and Matthew Yglesias comments.

29 to 1:

That's the current ratio of Guantanamo detainees judged to be enemy combatants by the recently-enacted military tribunals versus those found not to be enemy combatants by the tribunals. For the story of the 1, see here.

Don't trust online polls:

If you want more evidence that you shouldn't trust online polls, check out the Newsweek poll results, which show the online poll results (black) side by side with the scientific poll (grey). The gulfs are huge, because for many reasons the people who (1) heard about the Newsweek online poll and (2) were willing to take the time and trouble to go to the site and make their choices are highly unrepresentative of the typical American, typical registered voter, typical likely voter, or any other group of people whose views you might want to know.

Thanks to reader Stephan Oestreicher for the pointer.

The Iranians and the Palestinians:

Interesting piece in Ma'ariv about Iran's attempt to take control of the Palestinian movement away from Arafat, and to cooperate with Al Qaeda. Debka has lately carried similar reports. Arafat invited Iran and Hizbullah into the Palestinian movement to provide it with resources and manpower, but now risks being usurped by his "allies." If massive new violence strikes the Middle East soon, it's likely to be because of aggressive Iranian actions.

The Real Kerry Gun Issue?

Forget the flap over whether gun control legislation Kerry once supported would have banned the gun he brandished in West Virginia, Stop the Bleating suggests it was illegal for Kerry to accept the gun. In short:

It is (with a few exceptions, none of which appear to apply in Kerry's case) unlawful for a non-licensee to transfer (sell, give, whatever) a firearm to another non-licensee who he "knows or has reasonable cause to believe" is not a resident of the state in which the transferor resides. And it is (with a few exceptions, none of which appear to apply in Kerry's case) unlawful for the transferee to possess said firearm, at least in his state of residence.

Assuming this analysis is correct, does Kerry still have the gun?

Update:Several readers inquire whether this law is relevant to President Bush's possession of a gun that once belonged to Saddam Hussein. I have no idea, but it is an interesting question, and I'd gladly post the answer if someone knows.

Update: Here is a possible answer.

Fit to Lead?

During the primary campaign, a prominent Democratic Senator challenged Howard Dean's anti-war stance by proclaiming:

those who doubted whether Iraq or the world would be better off without Saddam Hussein, and those who believe today that we are not safer with his capture, don't have the judgment to be president or the credibility to be elected president.

That was John Kerry on December 16. How does that square with Kerry's more recent remarks?

Update:Several readers think that the above is "unfair" and a "cheap shot." One reader, for example, writes that launching an attack on North Korea would clearly be the "wrong war in the wrong place at the wrong time," yet if the war were successful, it would be irresponsible to argue that the world was not better off without Kim Jong-Il in power. Perhaps. But if the cost of the war were the utter annihilation of the Korean peninsula - a likely possibility - it would not be at all clear that the world was "better off." I think this is a fair reading of Kerry's response to Dean in December 2003.

Back then, in response to criticisms of his pro-war stance from Howard Dean, Kerry argued that the world was clearly safer with Hussein's removal. Now, Kerry is arguing that the U.S. should not have gone to war with Iraq when it did (though he says he still would have voted for the resolution authorizing the use of military force). I will concede that parsing any one or two of Kerry's statements about the war might show there is no inherent inconsistency, but when all of Kerry's statements about the war in Iraq over the past year are taken together, I think it is very hard to argue he has had a consistent position.

In a related note, Kerry is also simultaneously claiming that 1,000 Americans have died in the "war on terror," a figure that includes casualties in Iraq, and that the war in Iraq is not part of the war on terror. I suppose there might be a way to reconcile these statements too, but I don't see it.

Another Update:For what it's worth, On July 26, Kerry-Edwards campaign chair Jeanne Shaheen said on CNBC's Capitol Report: "people understand that the war in Iraq, unlike what George Bush told us, has not made us safer."

UNDERRATED JAZZ ALBUM: Art Blakey, Get the Message. With Chuck Mangione, Keith Jarrett, Reggie Workman, and Frank Mitchell. Eclectic, unusual group for Blakey, most interesting to me for hearing Chuck Mangione (of all people) jam in a hard-bop context (quite different from his later performances at the Mega-Lo-Mart). His sound remains very distinctive here. Somewhat obscure disc, but one that I've always enjoyed.

Tuesday, September 7, 2004

Kerry on Iraq:

Mickey Kaus quotes Teddy Davis of ABC News:

There is no way to know where Kerry will ultimately end up on Iraq.

If Davis is right -- and his column seems to support that position -- and if enough of the public ends up having that perception, that can't possibly be good for Kerry.


Saw this movie a couple of weeks ago, and was disappointed; it got very good reviews, and it certainly has some visually stunning items, but the story seemed melodramatic and hackneyed rather than tragic or mythic. Ann Althouse likewise wouldn't recommend it.

Articles matter:

A reader writes, apropos the hostages for headscarves question:

I have not been following this matter, and have no firm opinion on how the French should respond. But you seem rather blithely to overlook the fate of the hostages. Surely their lives are more important than the head-scarf law, whether one approves of that law or not. Maybe the French government, rather than the French Muslims, should have changed positions. When a robber says, "your money or someone else's life," you give him your money.

1. I am certainly quite interested in the fate of hostages — but that's a much broader question than the fate of the hostages. Once you have paid him the Dane-geld you never get rid of the Dane. If you give in to terrorists to save the lives of these hostages, this substantially increases the likelihood that other terrorists will capture other hostages, to ask for more and more. To quote another truism, "Behavior that gets rewarded gets repeated."

2. Also, even independently of this the question, isn't whether the two hostages' lives are more important than the head-scarf law (which I do not approve of, incidentally). Rather, it's whether they are more important than the ability of Frenchmen to democratically govern themselves, rather than being governed by murderous thugs. Democratic self-government is not the most important thing in the world — but it's hardly chopped liver, either. Many more Frenchmen than two have died to protect it.

(I don't think the analogy to private payments is terribly helpful, for a variety of reasons. Among other things, I think governments do owe a different kind of duty to help their citizens who are victimized by criminals than we have to help strangers who are victimized by criminals, the latter being a matter of charity, rather than any other moral obligation. Moreover, I think the harmful long-term effects of paying off terrorists swamp whatever present benefits there might be.)

Normblog profiles yours truly


I like this attitude:

Reader Jim Herd passes along this story; I particularly like the quote I set in bold below:

Many of France's more than 5 million Muslims have rallied surprisingly behind President Jacques Chirac in recent days, defending what most Muslims have bitterly opposed until now: a law prohibiting Muslim girls from wearing religious head scarves to school.

When students return to class today after the long summer recess, many Muslim schoolgirls will heed a strong message from their clerics — obey the law, even though it might violate your principles.

The striking change in mood is rooted not in local politics, but in a crisis unfolding thousands of miles away. The kidnapping of two French journalists in Iraq has resulted in unexpected unity after more than a year of rising anxiety about the growing religious fervor among Muslims in France.

A militant Islamic group threatened to execute the hostages unless France dropped its head-scarf law. . . .

The crisis appears to be driving even devout French Muslims to back the new law, arguing that rejecting it now would be seen as support for the kidnappers' demands.

"The government cannot repeal this law at this stage because they would immediately lose their credibility," said Dalil Boubakeur, rector of the Grand Mosque of Paris. . . .

For French Muslims, there is a sense of outrage that the kidnappers have tried to dictate their behavior from across the world, assuming that allegiance would be to fellow Muslims rather than to France.

"Nobody coming from the desert or the bush in Iraq can tell us what to do in France," said Abdallah Thomas Milcent, 45, a doctor who is the representative in Strasbourg in eastern France for the French Council for the Muslim Faith, an umbrella organization of Islamic groups. . . .

You got it, Doctor. Let's hope that's the view of most other Frenchmen, Muslim and not.

UPDATE: I'm pleased that Matt Yglesias agrees.

Drudge Misfires: The Drudge Report often displays banner headlines trumpeting the latest political gaffe or mistep. These tidbits are often amusing, and sometimes telling. Today, however, Drudge misfired with the headline, "Kerry Cosponsored Bill Banning Gun He Waves." According to Drudge (or at least the version of the story still up around noon EST), Kerry co-sponsored the Assault Weapons Ban and Law Enforcement Protection Act of 2003 which would have banned pistol-grip shotguns. Yet the gun in the picture is not a pistol-grip shotgun. Rather it has a traditional stock grip. (Pistol grips look like this.)

In Drudge's defense, it could be argued that the bill in question has a broad and vague definition of "pistol grip": "The term 'pistol grip' means a grip, a thumbhole stock, or any other characteristic that can function as a grip." This definition is quite broad, and would seem to apply to just about any gun with any type of grip — and that would almost certainly not have been the intention of Senator Kerry or the bill's other supporters. For anyone who knows just about anything about guns, what constitutes a pistol grip is rather clear, and this ain't it.

Update:Folks at The Corner have also noted the discrepancy. Apparently someone told Drudge, as the language in the item is softer than what was posted this morning (and the silly additional claim that this would somehow violate the Brady law — which covers handguns — has also been removed from the story.) Now Drudge has added the additional — but less-compelling — story line that Kerry received the gun as a gift when the law would have banned such gifts. Perhaps, but that sort of thing rates awfully low on the hypocrisy meter.

[As a sidenote, I appreciate it when Drudge — or any other web-based writer — corrects misstatements, but it would be nice if such revisions were acknowledged. Except for typos, I've tried to acknowledge any mistakes in posts that are subsequently corrected.]

Second Update:Glenn's on the case as well, while Publicola e-mails that the gun in question would have been banned after all — but due to its magazine capacity, not the grip. [Update: Publicola has a new post here.]

Another Update: David Kopel weighs in, concluding that the gun in question is "not a "pistol grip" in the ordinary meaning of the term, but it is a "pistol grip" as defined by S. 1431." Fair enough, as I readily defer to Kopel when it comes to guns. Whatever the impact of the bill Kerry once supported, the Kerry campaign says Senator Kerry is now against such a ban, even if before he supported it.

Last Update:Then again, a reader e-mails:

I worked my way through law school by, among other things, doing gunstock work. If you put me on the stand and asked me if the shotgun Kerry is holding has a "pistol grip" stock within the common meaning in the trade, my answer would be yes. The other type (no protuberance ) would be an "English," "straight" , or "straight hand" stock.
See, for instance, catalog entries here, here, and here. So, in the end, maybe Drudge didn't misfire so much after all.

And another reader writes:
I was a juror on a case involving a shotgun-inflicted double murder, and from what I learned, I'm reasonably sure the involvement of the grip is fairly minimal in that sort of crime. (It's the metallic end that does the damage).
World War III:

Yoel Marcus in Ha'aretz:

Unlike September 1939, when Europe quickly realized that it was looking at a world war, it's not clear whether Europe today realizes what America grasped long ago - that World War III is in full swing. This war is different from all the wars in history. It's not countries fighting countries. It's not a war that can be won by conquest or some cut-and-dried military victory. Because the enemy is terror. It's everywhere and nowhere.

Read the whole thing.

Spy Allegations Against AIPAC: has some thoughts on the Washington Post's coverage of what strikes me as, thus far, a major non-story--the allegation, still unproven, that a low-level, non-Jewish, Pentagon official shared a single classified document discussing American policy toward Iran with members of AIPAC. EyeonthePost reports that the Post is now up to nine articles in eight days regarding an allleged espionage case in which there have been no indictments, no criminal charges, and lots of rumor and innuendo.

The idea that AIPAC would jeopardize its considerable power and influence by knowingly serving as a conduit for Israeli espionage strikes me as completely absurd. Less absurd is the possibility that rogue employees with the organization would do so, but the more likely explanation is the innocent one: AIPAC, contrary to popular belief that if focuses solely on Congress, spends considerable time and energy developing relationships with, and lobbying, the executive branch. During one meeting with a Pentagon official discussing Iran policy, the official shared an unimportant but technically classified document with AIPAC officials, which the official (a political appointee, as I recall) may not have realized was illegal.

In the absence of any hard evidence or criminal indictments, the whole thing strikes me as something of a witch hunt against AIPAC, which many Washington insider fear and loath. Note the gleefulness of the Post's coverage. There is also a great deal of resentment against the "neoconservative cabal" at the Pentagon, and it appears from a distance that someone at the FBI decided that it was worth tailing American officials somehow associated with Feith, et al., to see if they were really spies. I'm reserving judgment, but for now it's a tempest in a teapot, and the whole "scandal" appears more than anything to be a product of paranoia about "Jewish influence," and of the FBI's need to come up with something to justify the resources its wasted on its investigation.

P.S. I have no doubt that, despite its denials, Israel (along with every other country that can muster the resources) spies on the U.S., and vice versa. So?

Related Posts (on one page):

  1. The Franklin Affair, AIPAC, and (Possible) Anti-Semitism:
  2. Spy Allegations Against AIPAC:
COMMONS BLOG ON NATIONAL GEOGRAPHIC: Interesting observations by several members of Commons Blog on what they perceive as an increasing politicization and activism at National Geographic and National Geographic Magazine. I don't subscribe to National Geographic so can't say one way or the other, but it did prompt me to recall that I used to be a member of the "Friends of the National Zoo" here in Washington, but canceled my membership after noticing a similar trend in the propaganda put out in their Zoogoer magazine.

I recall that this article in the December 2001, "Panama's Kuna and the Perils of Modernity" was the piece that finally prompted me to cancel my membership. From the article, "I would discover that the Kuna indeed have boundless respect for all living creatures surrounding them, and that their knowledge of plants and animals is tremendous. But entering the market economy has been disastrous for the Kuna—and their surrounding ecosystems—on many levels." It goes on in a mindless capitalist and globalization-bashing vein from there. At the time, I wrote a letter to the editor of Zoogoer objecting to the bias of the article who wrote back a snide response, so I just canceled my membership.
Let the Clerkship Games Begin!:

Today, September 7, is a special day for 3L gunners around the country. It's the day that students can begin applying for federal clerkships that will start next summer. Good luck, VC readers! For the latest updates, The Greedy Clerks Board will probably be a good place to check.

Monday, September 6, 2004

Restaurants in L.A.:

My query about Stanford restaurants reminded me to put up my Guide to L.A. Living as a Law Student, which I distribute each year to incoming UCLA students -- mostly restaurant recommendations, but also some delis, bookstores, shooting ranges, and other things I like and recommend.

It doesn't purport to be at all comprehensive; most importantly, it focuses on places that I've tried and enjoyed. But I hope some readers, especially those who are new to L.A., would find it helpful.

Thanks for the restaurant recommendations:

Many thanks to the over forty readers who sent restaurant recommendations -- we've already tried Jing Jing, a Chinese restaurant, and quite liked it. I hope to merge all the responses soon, and when I come up with my master list, I'll post it for the benefit of others.

Computer worm that turns on your webcam:

My friend Mitch Sklar passes along this story:

A new computer virus takes spying on victims one step farther than most worms -- the malicious program is capable of switching on webcams, allowing the author to literally peek into victims' lives. . . .

I'm always skeptical about computer stories in the media, since they so often get details wrong. And legal stories, those, too. And of course science stories, or any stories involving statistics. Come to think of it, I guess I'm always skeptical about all stories in the media, or should be. But in any event, this seems technically plausible.

As the story says, though, paraphrasing "Craig Schmugar, virus research manager at McAfee Inc.," "consumers should really be much more worried about viruses and worms designed to capture keystrokes -- which enable virus writers to steal passwords and personal financial information -- than programs designed to flip on webcams."

Will we all evolve into Republicans?

In states where Bush won a popular majority in 2000, the average woman bears 2.11 children in her lifetime — which is enough to replace the population. In states where Gore won a majority of votes in 2000, the average woman bears 1.89 children, which is not enough to avoid population decline. Indeed, if the Gore states seceded from the Bush states and formed a new nation, it would have the same fertility rate, and the same rapidly aging population, as France — that bastion of "old Europe."

Who exactly is reproducing?

Over the past decade, fertility rates among all major American ethnic groups have either remained low or fallen dramatically. Between 1990 and 2002 fertility declined 14 percent among Mexican Americans and 24 percent among Puerto Ricans. African Americans, according to the National Center for Health Statistics, now have a lower average fertility rate than whites, and they are no longer producing enough children to replace their population. But one big difference in fertility rates remains: Conservative, religiously minded Americans are putting far more of their genes into the future than their liberal, secular counterparts.

Of course not all children of conservatives are conservative themselves. Furthermore the larger the share of the population a group holds, the harder it is for that group to maintain control over the beliefs of its children. In any case, here is the full story.

DEMOCRATS REGROUP: The Real Times has a front-page story on the Democrats regrouping after the Republican National Convention. Noting the President's double-digit poll leads, the Democrats argue that Kerry was not fast and aggressive enough in his response to the Swift Boat ads and controversy and this led to the fall in the polls. This could be true, but it strikes me as a little too much "inside baseball." I personally find it hard to believe that the Swift Boat issue really affected that many voters.

My perception, for what it is worth, is that the effect of the Republican Convention was to remind voters what the election is really about. Because news coverage has been dominated by these little day to day stories, this tends to drive the polling decisions. The Convention, by contrast, succeeded providing perspective by reminding voters that all this back-and-forth is nothing but smoke, and that national security and terrorism remains the big issue. To some extent this issue gets pushed to the back pages by all the other little stuff that drives news coverage.

Further credence for this, I think, is that according to the polls I saw last week, the President's big bounce came during the week of the Convention, but before he even spoke (in fact, from what I can tell, his actual speech didn't add much to his bounce). My interpretation of this was that people were responding to the convention's reminder of the importance of the terrorism issue itself, rather than any particular details or issues. So the battle seems to be over defining the issue space, rather than the candidates' positions on those issues.

Possible contrary evidence to my hypothesis, however, is suggested by the Iowa Electronic Markets. The trading data there indicates that President Bush made his greatest strides in the week leading up to the Convention (when the Swift Boat issue dominated the news), and actually fell into a virtual tie on the first day of the convention, before rebounding at the end of the week to where he began at the outset of the week. This tends to suggest that the Swift Boats issue was in fact the moving force for the recent pick-up in the polls and that the convention primarily consolidated those gains.


I have been pointed to some interesting discussions by Instapundit and JustOneMinute from last week that raise the question of whether the blip that showed a tie immediately before the election may have been an anomaly to suggest that the closing price on the first day of the convention may not have been the "real" price. No one seems to have a good explanation for why the market may have been inaccurate on that date, so I'm not sure what this all means. JustOneMinute references some other market data as well that is interesting.

Thanks to N.Z Bear of The Truth Laid Bear for the pointer.
MEDICAL MALPRACTICE INSURANCE CRISIS: Interesting article in today's Washington Post on the medical malpractice insurance crisis. It is one of the more in-depth news analyses I have seen on the whole issue.

I am especially intrigued by a chart that accompanies it that shows the median settlements and jury verdicts in malpractice cases. Unfortunately, it appears that the on-line story does not contain the chart (or at least I didn't see it). But it is interesting because it shows a very wide range between DC, VA, and MD on both settlements and jury verdicts. Most interesting is that MD has by far the lowest average settlements (only about $17k according to the chart) it has by far the highest median jury awards ($761k). By contrast for DC the figures are $170k versus $465k, and for VA $305k versus $670k. I can't think of any reason why MD's settlements are so low relative to its jury awards--I would have predicted that high jury awards would tend to generate higher settlements as well (a pattern which seems to hold in DC and VA). A few years ago I wrote a short article on the political economy of liability reform and provided some observations on what types of reform may be more political feasible than others and the political dynamics that can bring about reform, using President Bush's successful liability reform efforts while Governor of Texas as a case study. Some of the details are a bit dated now, but the general analysis I think remains sound. (If that link doesn't work, the essay can also be found here.)

Not coincidentally, Jeffrey Birnbaum has an article on the same page of the Post noting that business interests are increasingly tilting towards supporting Republicans. He describes in particular the effect that the naming of John Edwards as VP candidate has had on galvanizing the Chamber of Commerce, which traditionally had been fairly neutral, but which has been galvanized by concerns over the liability system and liability reform issues. According to Birnbaum there are also some business 527 groups warming up in the bullpen to attack Edwards on the trial lawyer issue, including the Prosperity Project. Unfortunately, much of the cool stuff in this article is also in a chart that isn't reproduced on the Washington Post web page (at least not with the article).

Amazingly, according to Birnbaum's figures, Microsoft continues to support Democrats and Republicans almost equally ($454k to Republicans and $404k to Democrats). Which simply raises again the often-remarked question of how could a company that is so smart on business matters be so dumb when it comes to politics? Do they really want another Democratic Attorney General?

Sunday, September 5, 2004

Sunday Song Lyric: It's hard to believe, but the summer's just about over. Almost as unbelievable, but in eight months of posting song lyrics, I don't think I've posted anything by George Gershwin. To remedy that, and give one last nod to summer, here's one of Gershwin's most famous songs, recorded by crooners and rockers, rappers and balladeers: Summertime.
And the livin' is easy
Fish are jumpin'
And the cotton is high

Your daddy's rich
And your mamma's good lookin'
So hush little baby
Don't you cry

One of these mornings
You're going to rise up singing
Then you'll spread your wings
And you'll take to the sky

But till that morning
There's a'nothing can harm you
With daddy and mamma standing by

Update:Several have e-mailed to correct a slight error above. While George Gershwin wrote the music to "Summertime," the lyrics are typically credited to Ira Gershwin. Du Bose Heyward is also credited for writing the story of Porgy & Bess, from which Summertime came.