Saturday, October 2, 2004

The New Report Supporting the Bush Guard Memos Falls Apart.-- [[Oct. 3 update: I added pictures from Paul's post at Wizbang to this early Oct. 2 post.]] I have waited to post on this until things are mostly sorted out, but I expect much more to come out today, when Wizbang (who broke this story) provides significant updates.

Several days ago, Associate Professor David Hailey of Utah State University posted a report on the internet that purported to provide evidence for his opinion that the Bush Guard memos were typed. As you know, virtually every competent expert who had come forth concluded that the memos were almost certainly produced on a computer, probably using Times New Roman font in Microsoft Word.

CBS producer Mary Mapes was so impressed by Hailey's report that she sent it out to support the story.

People were amazed that Hailey had come up with a typewriter that could come fairly close to producing text from the memos (but not as close in my opinion as Microsoft Word). Naturally, people were curious what sort of previously unknown typewriter it was that could produce a font that looked like computer output. Strangely, Hailey didn't say in his report.

But as Paul and Kevin at Wizbang (and later other bloggers) began to look at the report, it began to collapse. Wizbang disclosed that the superscript "th" looked very different from the rest of the type. Indeed, it appeared as if it had been floated into place using a program such as PhotoShop. [[Click to enlarge.]]

Then Wizbang discovered what might be the smoking gun: on Hailey's own website, they discovered what appears to be an earlier draft version of the same document that had most of the text that Hailey had produced using the font "Typewriter." But where the superscript was supposed to be, there was only a blank, as if he had not yet floated in the superscript from another font. There were also some numbers missing from the draft document in places where numbers from another font were later floated in.

[[10/3: Paul added red lines to Hailey's draft to show some of the missing text; click to enlarge.]]

Once caught, Hailey changed his report online, without indicating that he had changed it. In the new version of the report, he disclosed that he had created his document, not on a typewriter as everyone had supposed, but instead using a computer font. He added this language, confessing for the first time that he had not typed the text supposedly matching the Killian memos:
I was able to recreate most of the defining characteristics using a font called "ITC American Typewriter Condensed." Once I had identified the font family, I recreated the memo using characters from that font family [he is here only hinting that he combined characters from different fonts]. Do not misunderstand figure 4. My addition is not typed. It is replicated based on the characters already in the memo using a font [not true, he used more than one font] from the typewriter family as my template. It does not prove that the memos were typed, or that I can type them. It only proves that I know what the font family is and can reasonably accurately reproduce the characters in the memo. The reproductions in the memo demonstrate that and nothing more.
Going back over the original memo, it appears that he never actually said that he generated his version of the memo on a typewriter, though anyone would certainly get that impression. It was not appropriate for him not to have originally disclosed that he created the memos using computer fonts, when the other experts had claimed that that is precisely how the forgeries were produced.

Further, how can one conclude that the memos were produced on a typewriter and not using a modern computer program such as Microsoft Word if the best that you can do is produce a rough copy using a modern computer program (did Hailey also use Microsoft Word to create his copies, just like the forger)?

Moreover, the font that Hailey disclosed that he used (ITC American Typewriter Condensed) is a poor fit for the memos and (according to comments on Wizbang) was not in existence until 1974, after the memos were written. Indeed, it was such a poor fit that (apparently) Hailey had to get numbers and the superscript "th" from other fonts in the same family and insert them in the documents. Hailey has not been able to produce a typewriter that used ITC American Typewriter Condensed in 1972, because none ever existed.

To see why his font is not a good match, in the three relevant fonts (the Killian font, MS Word Times New Roman, and ITC American Typewriter Condensed) in the headers to this Killian memo compare the following characters: M, R, J, 9, 7, 2. It's pretty obvious that Times New Roman is a much closer match than ITC American Typewriter Condensed.

In light of all this, consider the beginning of Hailey's Report, the Abstract:

The following evidence from a forensic examination of the Bush memos indicates that they were typed on a typewriter:

1. The specific font used is from a typewriter family in common use since 1905 and a typewriter capable of producing the spacing has been available since 1944.
Since Hailey was not able to identify the "specific font," instead creating his copy by picking and choosing characters from different fonts (without disclosing that fact in his original report, and only hinting at it in the current report), it would be impossible for him to make this claim. Yet it is the first "fact" in his abstract.

In the report itself, he goes even further:
The font is a common typewriter typeface invented at the beginning of the 20th century and in continuous use until the computer replaced the typewriter. The font's name is "Typewriter." Although the typeface was somewhat modified for civilian communities in the 1960s, it remained commonplace in the military well into the 1970s. In short, the Bush memos were produced in a version of Typewriter commonly used in the military at the time.
This is quite stunning. Hailey has not identified the font used and he used more than one font to create his relatively poor copies, yet he confidently asserts the name of the font and when it was created. Then, without having located any machine that used the main font that he actually used to create his copies (ITC American Typewriter Condensed), he asserts flat out that "the Bush memos were produced in a version of Typewriter commonly used in the military at the time." How could he know this without having identified the font used or found any machine in 1972 that could have produced it? Obviously, he couldn't. Hailey has no substantial basis, scholarly or otherwise, for making these claims.

To say that his report is shoddy scholarship would be an understatement.

There is another reason that I have not posted until now, besides the one mentioned earlier—that is the tone of the criticisms. I do not endorse any claims that have been made that Professor Hailey committed fraud, nor do I think that he should lose his tenure as some have suggested. I believe that Hailey misled people by not disclosing that most of his documents using multiple "Typewriter" fonts were not produced on a typewriter, and that Hailey is still not being fully candid by not disclosing clearly enough that the font he favors was such a poor match that he had to import characters from at least one other font (perhaps from the same "family"). I do not, however, believe that he should be subject to more than the normal punishment for extremely shoddy scholarly work—the disapproval of his peers.

I will continue to give Hailey the benefit of the doubt and assume that in the next few days, he will begin making amends.

UPDATE: Instapundit comments on my post (in which I corrected some of my typos):
COMING NEXT, AN EFFORT TO REHABILITATE PHLOGISTON CHEMISTRY: Jim Lindgren notes that an attempt at demonstrating that CBS's forged documents might have been done on a typewriter has fallen apart.

This is hardly a surprise, of course. But it wouldn't be much of a vindication for CBS even if, through some miracle, the documents turned out to be genuine. It's quite clear now that CBS acted without concern for the genuineness of the documents, and in fact in the teeth of opinions from its own experts that the documents were probably bogus. No amount of after-the-fact lawyering can change that evidence of journalistic bias and ineptitude, though CBS's namecalling of its critics, and general stonewalling, compounds the offense and moves it from negligence to the category of 'reckless disregard."
2D UPDATE: Definitely go read Paul's new description of many of the things he discovered and revealed earlier. It provides the visual evidence that my account lacks, as well as being an account from the people who have owned this story--Wizbang.
Bush's uncomfortable exchange with O'Reilly about the Swift Vet ads?

--Watching part of Bush's interview with Bill O'Reilly (tip to Instapundit), I found Bush's responses to questions about Rove having prior knowledge of the Swift Boat ads to be odd, to say the least. Of course, Bush can look uncomfortable even when he is saying something that he deeply believes in, but he looked awfully sick to his stomach in this exchange:

O'REILLY: You didn't know anything about the Swift Boat ads before they went on the air, did you?

BUSH: No. I didn't.

O'REILLY: Did Karl Rove know anything about it?

BUSH: I don't think so. In other words, you're asking if anybody coordinated this in our campaign?

O'REILLY: No, whether they'd give you a heads up they were going to do it.

BUSH: Not to my knowledge.

Now if Rove had advance knowledge of the timing of the Swift Boat ads, that doesn't necessarily mean that Rove was coordinating the ads (as our readers have pointed out about all the Democrats who had advance knowledge of the CBS Guard and Yellowcake stories), but it would be relevant to such a question.

The tape and the transcript are available here. To see the relevant passage, click on VIDEO, then Tuesday, Part II; wait for the actual interview to start and move ahead to near the end.

Friday, October 1, 2004

Three Questions on Iraq -- The Challenge Has Ended:

Thanks to everyone who participated in my blogosphere challenge by sending me links to posts on the three questions I raised about the war in Iraq. I received in the neighborhood of 90-100 responses, and hope to post links to all of the responses sometime over the weekend. I also expect to respond myself to a few of the common arguments to see if we can advance the debate a bit more.

ACLU Fights Back Over "Patriot Act" Coverage: It seems that the ACLU's temporary success mispresenting the nature of Wednesday's court decision has led to some heat being directed back at the ACLU. Corrections have been run at several papers, and the ACLU's misleading description has become a bit of a story itself. How does the ACLU respond? With another press release:
  ACLU Blasts Justice Department's Attempts to Manipulate Truth About Patriot Act Ruling
  NEW YORK - In what appears to be a concerted campaign to mislead the American public, the Department of Justice and some of its Republican allies in Congress are attempting to minimize the impact of landmark ruling this week against so-called National Security Letters and the provision of the Patriot Act that broadened their use by the FBI.
  "The Justice Department should spend less time spinning this landmark decision and more time trying to fix the law," said Anthony D. Romero, Executive Director of the American Civil Liberties Union, which brought the successful challenge to the Patriot Act provision along with the New York Civil Liberties Union.
  At issue is a Sept. 29 ruling by a federal court striking down a provision that gave the FBI virtually unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The Patriot Act dramatically expanded that provision by permitting the FBI to obtain records of people who are not suspected of any wrongdoing.
  In an e-mail message sent yesterday to Senate leaders and their staffers, a Senate Republican Policy Committee analyst claimed that news reports that the ruling had invalidated a Patriot Action provision were "false." The analyst, Steven J. Duffield, said that because the court's ruling also struck down the underlying 1986 law that the Patriot Act amended, the decision should not be viewed as a blow to the Patriot Act, as reported by many national newspapers.
  ACLU Associate Legal Director Ann Beeson called the e-mail message a desperate attempt to insulate supporters of the Patriot Act from criticism. "There is no question that the court struck down a provision of the law that was dramatically expanded by the Patriot Act."
  So wait-- there is an alleged campaign to mislead the American people because someone sent an e-mail to Senate leaders and their staffers? Wow. That's quite a campaign.

  More substantively, note how the ACLU has shifted ground from its original position to something rather different. In its original press release, the ACLU claimed that the court had struck down a key provision of the Patriot Act in a rebuke to the Bush Administration. This time around, the ACLU makes no mention of its earlier claim and instead vigorously defends different, more accurate ground — that this was a 1986 law that was expanded by the Patriot Act. This is true. But who has said anything to the contrary? That is, except the ACLU?

  I don't want to be unfair. The ACLU does lots and lots of great work, and the organization has played a vital role in many areas of law. Ann Beeson is a very skilled and highly effective lawyer. But it seems to me that when you get caught trying to play games like this, it doesn't help your credibility to switch positions and then "blast" your critics for mounting "a concerted campaign to mislead the American public." I expect better from the ACLU, and I am disappointed by this.
Unfounded infringement claims by copyright owner

lead to damages award against it. Larry Lessig reports:

EFF and CIS received news of a huge victory yesterday in the Diebold case. In an opinion released yesterday, the Court held 512(f) of the DMCA could be used affirmatively against the company for its baseless claims of copyright infringement brought against the Swarthmore students who posted memos from Diebold on the net. These are the same amazing students who then launched the Free Culture Movement.

The post links to the opinion, which is pretty short and readable -- the basic conclusion is that the students' posting of internal Diebold memos was so clearly a fair use that Diebold must have known that the students weren't infringing (or at least should have known this); therefore, under section 512 of the Copyright Act, it's liable for knowing material misrepresentation in its letter to the ISPs that claimed the documents were infringing and thus had to be taken down.

And while I'm bragging

about my coblogger Orin's success, here's something from a UPI story about Sen. John Cornyn's press conference on that decision holding unconstitutional a secret subpoena:

[Sen.] Cornyn noted that the erroneous coverage was apparently first spotted by a George Washington University law professor named Orin Kerr, who wrote about it on a web site call "The Volokh Conspiracy."

"It's another victory for the bloggers," said Cornyn.

We've feen fark'ed: Thanks chiefly to a link to Orin's post about the media's reporting on the recent decision invalidating a secret subpoena provision, we had nearly 27,000 unique visits yesterday, according to eXTReMe Tracking, and about 32,000 counted by SiteMeter. Not much by the standards of some sites, but I believe a new blog record.
The Volokh Conspiracy Gets Results:

In light of yesterday's posts (see here and here) on how the press misreported Wednesday's court decision allegedly striking down part of the Patriot Act, it is worth pointing to the first item on the Corrections Page of today's New York Times:

An article yesterday about a judge's ruling to invalidate some federal surveillance powers referred incorrectly to a subpoena statute that was struck down. While the statute - authorizing the use of subpoenas known as national security letters - was amended by the antiterrorism legislation called the USA Patriot Act, it was not created under that act. It was enacted in 1986 and amended several times, including once in October 2001 under the Patriot Act, to expand its application. The judge's ruling analyzed and struck down the statute as a whole, including provisions that predated the Patriot Act.

The correction also appears at the end of the electronic copy of the article available on the Times website, along with a header in bold at the top of the article that announces "Correction Appended."

  The correction is misleading in a way: it does not point out that the statute was invalidated for reasons unrelated to the Patriot Act amendments. At a minimum, I would change that last sentence to read, with my change in bold: "The judge's ruling analyzed and struck down the statute as a whole, including provisions enacted under the Patriot Act." Still, the correction makes a decent effort to clarify the facts. Good for the Times. I haven't checked to see if other papers made corrections, but I suspect very few have.

UPDATE: The Washington Post has run a correction as well:
A Sept. 30 article said that a federal judge in New York found a key component of the USA Patriot Act unconstitutional. At issue in the case was the Justice Department's use of "national security letters," a type of administrative subpoena that allows federal agents to demand records from businesses and prohibits the companies from revealing that the demands were made. While the Patriot Act loosened restrictions on the use of the letters, most of U.S. District Judge Victor Marrero's ruling focused on earlier statutes governing the letters.
Naming the New D.C. Baseball Team:

I firmly believe that professional sports team names should reflect something important about the city. For example, the "New Orleans Jazz" was a great name, the "Utah Jazz" an abomination. I've been thinking about names for the new D.C. baseball team. As a resident of the region, I'm partial to the "Washington Stuck in Traffics," the "Washington Long Commutes," or the "Washington Everyone Here Seems to be a Lawyer or Federal Workers." Because the team will be in D.C. itself and not suburban Arlington, as seemed more plausible at one time, perhaps it could go with the "Washington Hopeless Bureaucracys," "Washington Terrible Public Schools," or "Washington Thank God Marion Barry Isn't the Mayor Anymores." However, the D.C. baseball tradition suggests that the team should choose a name that reflects the presence of the federal government, as in the old "Senators." But I don't think that the "Senators" name really reflects the essence of the city, the way the "Jazz" seemed to for New Orleans. I've come up with three favorites. First, the relatively bland but telling "Washington Lobbyists." Second--and this one is too really too obscure for the mainstream, but it's my personal favorite--the "Washington Rentseekers." Finally--and I really think I have a winner here--the "Washington Special Interests."

UPDATE: Name suggestions are pouring in. Several readers suggested the "Gridlocks," which applies both to common local political and traffic conditions; the Wall Street Journal apparently came up with that one. Other suggestions that I like: "Washington Military Industrial Complex" (here's a witty post on the problems created by sports team names that are singular instead of plural); "Washington PACs"; "Washington Wonks" (points for alliteration); and "Washington Deficits." Also, a reader reports that "sports talk show on WTEM the other day had a suggestion to honor a major historical event in Washington - name them the "Washington God Damn Bitch Set Me Ups."

Related Posts (on one page):

  1. More D.C. Baseball Team Names:
  2. Naming the New D.C. Baseball Team:
A comment on the debates.

--I personally find it hard to watch either Bush or Kerry speak, especially when it counts, such as in a debate. Both did a little better than I thought they would. I thought Kerry won on style and Bush won on substance, though Kerry certainly had some moments where he gave strong answers that would have broad appeal--such as a list of all the things he would do at home to make the US safer. I should also add that in the past I have been a terrible judge of who wins these things.

Jim Geraghty on Kerry Spot on NRO has been particularly strong in the last few weeks--worth checking regularly. I thought that this comment from one of Geraghty's readers summed some problems with Kerry's arguments:

"To summarize his [Kerry's] comments: It's the wrong war at the wrong time, but I'm committed to winning it; We're spending too much on Iraq ($200 billion), but I'd send more troops and equipment; I'll bring in more nations to help Iraq, but the other nations currently in Iraq were coerced and do not provide much assistance; Saddam and Iraq were a grave threat, but Osama is the only terrorist worth pursuing; Terrorists are pouring into Iraq, but Iraq is a distraction to the war on terror. I still have no idea what he would do as President to fight this war on terrorism."

Thursday, September 30, 2004

More on the Mainstream Media: Following this post, several readers have asked me where the press got the idea that the recent court decision in New York invalidated a major part of the Patriot Act. I assume the main source is this ACLU press release, which begins:
In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional

  NEW YORK - Saying that "democracy abhors undue secrecy," a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech.
  "This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans in the name of national security," said ACLU Executive Director Anthony D. Romero. "Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts."
  The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration's efforts to expand government surveillance powers in violation of the Constitution.
  "Today's ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."
  The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.
  I can understand the difficulties that long and complicated legal opinions raise for many reporters. Imagine you are a reporter who covers legal issues and terrorism. It's late on a Wednesday afternoon, and a court hands down a 122-page legal opinion. You have just a few hours to write a story on it. The Justice Department declines comment, so that's no help. But then the ACLU gives you a nice and easy-to-understand press release that tells you what the opinion does, what it means, and offers a few great soundbites. With a deadline just a few hours away, what are you going to do — wade through 122 pages of hypertechnical legalese yourself, or base your story at least in large part on the ACLU's press release?

  UPDATE: Senator John Cornyn of Texas is on the case. As I understand it, he held a press conference on this earlier today and mentioned my earlier blog post.

Congratulations to Governor Arnold for vetoing a counterproductive piece of legislation in California that would have imposed new disclosure requirements on pharmaceutical benefits managers. As the FTC noted in an analysis of the bill (from the press release):

The staff analysis finds that AB 1960 is likely to have an adverse effect on consumers in two ways. First, mandated disclosures may actually increase prices. "Whenever PBMs have a credible threat to exclude pharmaceutical manufacturers from their formulary, manufacturers have a powerful incentive to bid aggressively. . . Whenever competitors know the actual prices charged by other firms, tacit collusion - and thus higher prices - may be more likely. It is for this reason that California law requires the state to use sealed bids to procure desired goods and services whose value exceeds $25,000," the FTC's letter states.

Second, the bill has a number of provisions that are likely to make drug substitution more expensive. PBMs frequently use drug substitution to reduce costs and promote competition between branded drug makers. Generic substitution is encouraged by the FDA and widely recognized as safe, and California already requires prescriber approval for the substitution of one branded drug for another. Because current safeguards appear sufficient to protect consumers, AB 1960 is likely to increase costs to consumers without providing any additional benefits.

The Governor's veto message points to the FTC analysis as influencing his decision to veto it.

Supreme Court to Hear Medical Cannabis Case on November 29th: Some may have noticed that I have been blogging a lot less of late. There are probably several reasons for this, among which is the work I have been doing on Ashcroft v. Raich, the medical cannabis case now before the Supreme Court. Our brief is due in 2 weeks and, this weekend, we made a major breakthrough in our Commerce Clause argument. (I cannot disclose it now, of course. Wouldn't be prudent.)

Yesterday the clerk announced that the Court will hear argument in the case on Monday, November 29th. So expect blogging by me to be intermittent at best until then.
Welcome Jim Lindgren! A belated welcome to my friend Jim Lindgren of Northwestern. Jim and I were once on the same faculty at Chicago-Kent College of Law, and it is good to be colleagues again. I am sure the same attention to factual detail that led to Jim's exposure of the fraudulent gun ownership data of Michael Bellisiles along with his boundless enthusiasm will make Jim a truly excellent blogger. I look forward to reading his future posts.

Update:The immediate response of one reader: "Oh, THAT Jim Lindgren. I knew his name sounded familiar. Excellent!" Indeed it is.

Mainstream Media Ruled Unconstitutional: No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

  As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

  But of course you don't get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act. Here is the New York Times:
Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data
  A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information. The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the first to uphold a challenge to the surveillance sections of the act, which was adopted in October 2001 to expand the powers of the federal government in national security investigations. The ruling invalidated one piece of the law, finding that it violated both free speech guarantees and protection against unreasonable searches. It is thought likely to provide fuel for other court challenges.
The Washington Post goes out of its way to construe the decision as a rebuke to the Bush Administration:
Key Part of Patriot Act Ruled Unconstitutional
By Dan Eggen
  A federal judge in New York ruled yesterday that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. The ruling is one of several judicial blows to the Bush administration's anti-terrorism policies in recent months. . . . Marrero's ruling is the latest setback in the courts for the Bush administration's terrorism policies, which civil libertarians and some lawmakers consider overly broad. The Supreme Court ruled in June that detainees held as "enemy combatants" may challenge their confinement through the U.S. courts. Two rulings by federal courts in California have also struck down portions of statutes making it a crime to provide "material support" to terrorists. . . . But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," said Ann Beeson, an ACLU lawyer. . . .
Not to be outdone, the Associated Press offers a similar story (could it be that they are all reading from the same script?):
Judge blocks part of Patriot Act
  NEW YORK (AP) — Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism. The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers.
  Of course, many readers may consider the identity of the law at issue as a minor point; after all, the important thing is that the law was struck down, not whether it was a 1986 law or a 2001 law that was at issue. But I think the label matters, actually, and that it matters a lot: the mainstream media has created a monster called the Patriot Act that has millions of Americans terribly worried about the government in general and the Bush Administration in particular. The early reports are trying to view this ruling as a rebuke to antiterrorism strategies of the Bush Administration, but that's just not accurate: if anything, it is a rebuke to the antiterrorism strategies of the Reagan Administration.

  Finally, if I'm missing something, please let me know; there's always a risk when I blog this late at night that it's me missing the obvious, not the Washington Post, New York Times, and Associated Press.
Interesting Interview With the Principals in CBS Draft E-mail Hoax.

--INDC Journal has interesting interviews with the reporter and producer of the CBS story spreading the email selective service hoax. It is surprising that they can't see that spreading a hoax that has been debunked might be more than a tad irresponsible.

MoveOn is pressing CBS to run yet a third questionable story. As if CBS isn't in enough hot water already after running two stories in one month based on phony documents, has started a lobbying campaign to get CBS to run yet a third false story (hat-tip Kerry Spot). This one, on the attempts by Iraq to get Yellowcake uranium in Africa, was bumped from its original broadcast slot by the Bush Texas Guard story.

Here is MoveOn's call to arms:

Date: Monday, September 27 From: Peter Schurman, Subject: CBS censoring the truth about Bush's case for war

Dear MoveOn member,

President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents. For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war.

Now, CBS' 60 Minutes program has uncovered new and important revelations about the Bush administration's reliance on the documents. But, in an unprecedented and astonishing move, CBS bumped the report back until after the election, saying it would be "inappropriate" to air the piece when it might interfere with the political season.

It's outrageous that a major TV news outlet would censor an important piece of news for political reasons. Especially since this report has met CBS' standards for accuracy — it's true. One can only assume that CBS is buckling under pressure from the right — and that's just plain wrong.

Call CBS and its parent company, Viacom, now, at: . . . .

The reason that CBS publicly gave for further postponing the story (that it was too close to the election) was indeed inappropriate on its face (unless of course CBS in the 2 months before the election would run investigative stories only if they favored one candidate).

But there are other better reasons for CBS not running the story. First, it is false. Note that Moveon claims:

"President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents."

It would be hard to write a sentence with more errors in it, given what many have revealed in recent months (examples here and here). First, Bush did not mention Niger, but rather Africa. Second, Bush stated what British intelligence found, an analysis that has never been revoked and has recently been confirmed. Third, the administration did not even have possession of the forged documents when Bush made his statement, and it recognized the documents as doubtful almost immediately after they did get their hands on them. Last, one of the intelligence reports released this summer confirmed Bush's original claim about British intelligence and showed that Joseph Wilson had not been truthful about what he had told the CIA at the time--that Wilson himself had reported probable Iraqi attempts to get Yellowcake.

Moveon's second sentence is similarly ridiculous:

"For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war."

Not only were the documents NOT part of Bush's case for war, the Italian con man who was caught forging the documents has confessed that he created them for French intelligence.

If CBS had run this story, they would have shot themselves in the foot yet again--pushing another false tale that happens to hurt the President.

UPDATE: I was just thinking: how does MoveOn know what CBS was going to say in their report? How do they know that CBS wouldn't have focused on French attempts to undercut the war, the Bush administration's quick skepticism about the documents, the exposure and public discrediting of Joseph Wilson this summer, and the vindication of Bush's claim, which so many critics still don't want to face? Hmmm . . .

2d UPDATE: Wizbang explains how MoveOn knew about what CBS had said in a story that hadn't run yet. It appears that CBS gave a tape of their half-hour story (before its scheduled broadcast) to organizations that share CBS's orientation, such as Salon. Salon has a long, credulous description of CBS's story, with direct quotes (nonmembers are subjected to a long ad to get a free day pass to Salon Premium).

People have been wondering why CBS, who was taken in by Joe Wilson earlier, hasn't recanted their earlier embrace of his now discredited claims. Rather than admit their earlier mistake on Wilson and apologize, CBS had planned to use him again in the postponed story, allowing Wilson to make the same false claims that left him so discredited that the Kerry campaign removed their Wilson page.

It's time for bloggers who know more about the Niger story than I do to fact-check and document the false claims that CBS planned to run (many of which are in the Salon story). If these three stories (memogate, the email selective service hoax, and the Niger yellowcake) are representative of what CBS can do in just one month, CBS management must stop pretending that politics doesn't matter. They should integrate their newsroom politically. And if they are going to team up to do a story with a blogger, perhaps they might next time team up with a blogger who might fill in their blindspots, rather than one who would magnify them.

3d UPDATE: A reader points out that it is incorrect to say that an Italian suspect has confessed to forging the documents. Rather, an Italian who conveyed the documents has "confessed" to procuring them (claiming that he thought them genuine) and to working for French intelligence (see here and here) in the matter.
District Court Invalidates Part of Electronic Communications Privacy Act: District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the "national security letter" provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005. To make matters more interesting, the Court's Fourth Amendment analysis is rambling, self-indulgent, and rather odd — all of which will set up an interesting appeal in the Second Circuit. One warning, though: I'm a Fourth Amendment specialist, not a First Amendment scholar, so I am going to blog on the former and not the latter. I'll leave the First Amendment part for Eugene in case he feels like blogging on it.

  First, a bit of introduction. Section 2709 allows the FBI to order ISPs to disclose certain transactional information about their subscribers in terrorism investigations. For example, imagine that the FBI has reason to believe that a suspected member of Al-Qaeda in Afgahanistan has a Hotmail account, and is using that Hotmail account to communicate with other co-conspirators. Section 2709 lets the FBI order an ISP to disclose the person's name and address (in the unlikely case it was entered accurately), as well as transactional information such as when the account was accessed, from what IP address, and the e-mail addresses of other associates who sent e-mail to or received e-mail from the suspect account. The FBI sends a letter — known as a National Security Letter, or NSL — to the ISP ordering it to make the disclosure, and the ISP must do so. Also, the section provides that the ISP cannot "disclose to any person" that the order has been made.

  The recipient of a NSL challenged this procedure in federal court, claiming that the procedure violated the Fourth and First Amendment. The Fourth Amendment argument related to the constitutional rights of the ISP, not the rights of the ISP's subscribers; under relevant precedents, it is quite clear that ISP users do not have a reasonable expectation of privacy in their transactional records. The plaintiff argued that there is nothing in the statute that allows the ISP to challenge an NSL if the letter is overbroad, and that this failure to allow a judicial challenge rendered the statute unconstitutional. The basic idea here is that there needs to be judicial review of any kind of order to compel information under the Fourth Amendemnt so that a court can determine whether the order is valid. The government did not contest this; the government contested the plaintiff's reading of the statute.

  Specifically, the government responded that the statute had to be read as allowing a challenge, just like the challenge at issue in this case. Arguing that the court should construed the unclear statute in a way that renders it constitutional, the government urged the court to read the statute in harmony with other similar laws such as laws governing the issuance and challenge of subpoenas. If a recipient of an NSL wanted to challenge the NSL, the government argued, it could just go to a district court like the Southern District and file a motion to quash the NSL. Such a reading would presumably (although not obviously) render the statute valid under the Fourth Amendment.

  Judge Marrerro rejected this argument, at least sort of. In a very strange passage, Judge Marrero concluded that even if the government were right that the statute means what the government says, Section 2709 is unconstitutional because the NSL letters themselves appear on FBI letterhead and are phrased using very commanding language. A reasonable recipient is likely to view the NSL letter, "phrased in tones sounding virtually as biblical commandment," as something that could not be challenged. (see page 62-63). Thus, even if the statute could be read to allow recipients to challenge the letter in court, the scariness of the letter trumped the text of the statute and rendered the statute unconstitutional:
The Court concludes that in practice NSLs are essentially unreviewable because . . . given the language and tone of the statute as carried into the NSL by the FBI, the recipient would consider himself, in virtually every case, obliged to comply, with no other option but to immediately stay put.
Id. at 65. Then, before moving on to the First Amendment issues, Judge Marrero suggested that the government might be able to cure the Fourth Amendment defect "by alerting all NSL recipients" that in its view recipients can challenge the letters.

  Put simply, this rationale is really quite strange. I have never seen reasoning like this in any Fourth Amendment opinion. (Notably, Judge Marrero did not offer any Fourth Amendment precedent in support of that approach; instead he relied on a 1st Circuit case interpreting Rule 6 of the Federal Rules of Criminal Procedure and a First Amendment case, Bantam Books v. Sullivan, 372 U.S. 58 (1963)). It's only a statutory interpretation issue, ultimately, and the Second Circuit on appeal might just read the statute and conclude that it does not allow a challenge on its face. But Judge Marrero's approach is quite strange. Under Judge Marrero's own reasoning, for example, he could have rendered Section 2709 constitutional under the Fourth Amendment simply by announcing that he construed the statute to allow a challenge — something he implicitly did by ruling on the plaintiff's challenge. After all, had he announced that he was interpreting the statute to allow challenges, word would have gone out quickly to the ISP community and the ISP community would know that they could file the challenges. Ergo, the statute would be constitutional.

Wednesday, September 29, 2004

The Rise of the Blogs:

Blogs seem to be getting the attention of the mainstream media. To get some idea of how long this has been happening, I ran month-by-month searches for use of the word "blog" appearing in the Westlaw ALLNEWS database covering the last two years. (The ALLNEWS database is a database of newspapers, more or less). You can chart the growing awareness of blogs -- albeit quite imperfectly, of course -- in the increasing number of uses. I have hidden the raw data behind the link below, but the numbers begin with about 100 mentions per month in late 2002; climb to 300-400 mentions per month in most of 2003; go up to 700 mentions per month in early 2004; and escalate to about 1300 mentions a month since this past July.

What are the odds of that?

[Silly mathematical error of mine deleted; thanks to those who explained to me my mistake.]

Senators call for investigation of comments by Supreme Court leaks: Here's a letter from Senators Cornyn, Chambliss, and Graham to Senators Hatch and Sessions:
September 29, 2004

The Honorable Orrin G. Hatch
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Jeff Sessions
Subcommittee on Administrative Oversight and the Courts
Committee on the Judiciary
335 Russell Senate Office Building
Washington, D.C. 20510

Dear Senators Hatch and Sessions,

Recent articles in Vanity Fair and Legal Times strongly suggest that the duty of confidentiality owed to justices of the United States Supreme Court by their employees have been breached. If proven, these allegations present serious concerns about the integrity of judicial operations and warrant the attention of the Senate Judiciary Committee or its subcommittee on Administrative Oversight and the Courts.

According to an article published in the October 2004 issue of Vanity Fair, a number of law clerks who served at the U.S. Supreme Court during the October 2000 Term intentionally disclosed confidential information about the Court's internal deliberations to a reporter. Such disclosures clearly violate the duty of confidentiality owed by every law clerk to the United States Supreme Court. Indeed, the Vanity Fair article itself quotes one former law clerk apparently complicit in the disclosure, who admits that such discussions "break[] an obligation" to the Court. These disclosures have been roundly condemned as "conduct unbecoming any attorney or legal adviser working in a position of trust" and "behavior that violates the Code of Conduct to which all Supreme Court clerks . . . agree to be bound," in a recent letter published in the Legal Times and signed by numerous Supreme Court practitioners and former law clerks.

Judges throughout the federal judiciary, including the U.S. Supreme Court, rely on the assistance of law clerks to ensure the smooth and expedient administration of justice. If members of the judiciary cannot rely on the confidentiality of their deliberations and discussions with law clerks, the judiciary as we know it simply could not function.

Oversight of the operations of the judiciary fall uniquely within the jurisdiction of the Senate Judiciary Committee and its subcommittee on Administrative Oversight and the Courts. Accordingly, we ask that you consider hearings or other measures to determine whether there has been misconduct by employees of the United States Supreme Court, and if so, what measures should be taken in response.


John Cornyn
Saxby Chambliss
Lindsey Graham

More on Johnnie Cochran:

I'm told that Johnnie Cochran has been quite ill, which undermines my speculation that he might want to argue his First Amendment case in the Supreme Court.

Related Posts (on one page):

  1. More on Johnnie Cochran:
  2. Follow-up as to Tory v. Cochran:
  3. Tory v. Cochran:
More Establishment: Oh, and the National Review, Oct. 11, 2004, lists us in the "second rank" of its Blog Guide (quite rightly behind the much more popular Drudge Report, InstaPundit, Andrew Sullivan, kausfiles, and OpinionJournal) (thanks to reader Stephen Dillard):
UCLA law prof parades his libertarian-leaning academics.
And everyone loves a parade!

Todd Seavey reports:

FYI: The Sept. 30 - Oct. 7 issue of the megapopular stuff-to-do listings magazine TimeOutNY has a feature listing forty or so suggested sources of info during the prez campaign, and it includes and (as well as and, interestingly, but almost everything else is lefty). Another reminder you're becoming the Establishment.

Cool! I've always wanted to be Establishment Cool.

More on the email selective service hoax. I posted on CBS's new problems with its pushing an email letter without pointing out that it is a hoax. If you want to see how these hoax emails prey on the gullible, consider this letter (scroll down) to the editor of the Northeast Times (Philadelphia area) from last June. It is from Beverly Cocco, whose family's fears of a draft was the focus of Tuesday night's CBS News report:
Put a chill on the draft bill

Just this week I received an e-mail so upsetting that I forwarded it to all my friends, who then forwarded it to all their friends. We are now a good size group.

The e-mail concerned Bill S89 and HR 163. The bill is about reinstating the draft, beginning in the spring of 2005. The draftees will be all males and females between the ages of 18 and 26. There will be no deferments; seniors will be allowed to finish the year, and underclassmen will only be allowed to finish the semester. There is already a document signed between the U.S. and Canada, the "Smart Border Declaration," which will prevent crossing the border.

Since this is a federal bill, I was advised to contact Sen. Specter, Sen. Santorum and Congressman Joe Hoeffel. Sen. Specter's office said that these bills are a "secret." When I told him that the cat was out of the bag, he offered to connect me with the Washington office. That office assured me that the senator was against this bill. I am still waiting for Sen. Santorum to respond, but Congressman Hoeffel is undecided. His office is sending me a letter detailing his thoughts.

We are now in the process of collecting as much information as possible about this bill and the candidates.

We keep getting told that there are no sponsors for this bill and not to worry about it. But why did South Carolina Sen. Ernest Hollings draft this bill [actually, Charles Rangel-D first introduced it in the House, with 14 Democratic co-sponsors], and why is it sitting in the Senate? We think that it is important to find out before the election. Meanwhile, we are starting an organization called Parents Against the Draft (PAD). . . .

Beverly Cocco
In this letter, one can see the turmoil that email hoaxes cause people. Now CBS had spread the same fears to millions of others, based on phony information in a debunked email hoax.
Was CBS hoaxed again? When 60 Minutes II ran its story based on crude forgeries of Texas Guard documents, the humor site, Sharp as a Marble, ran a mock story entitled, "Dan Rather: Nigerian Mail is Authentic. Will be Retiring After Money is Transferred."
Dan Rather, of CBS News, is reported to have tendered his resignation from 60 Minutes after receiving a letter informing him of a sum $45M US due to him from Nigeria. Mr. Rather, who is well known for exposing President Bush's lack of honorable service while in the Texas Air National Guard, has agreed to transfer funds from the impoverished nation into his own account.

Many typography experts questioned the validity of the mailing saying that the image provided on CBS's web site looks like a font not found in Nigerian versions of Microsoft Word. Rather went on record stating unequivocally that the letter is authentic. . . .

When asked about the possibility that the typefaces are too similar to those found in common web browsers, Mr. Rathers responded "This is real. Those who are trying to say that this is some sort of scam are mostly Internet writers who have an agenda. I am taking my $45,560,000.00 and leaving this job and doing anything that doesn't involve having my judgment questioned by men who write in their pajamas. Besides, I had a handwriting expert agree that this is not handwritten and therefore authentic".
Is life once again imitating art?

According to, guest posted at (tip to Instapundit), last night on the CBS Evening News reporter Richard Schlesinger used fake documents to spread an internet rumor that has been long debunked. The document, which CBS showed on the screen much as it had the phony Burkett Guard documents, purports to be an email from someone in the Department of Defense, but it is actually a chain email hoax letter.

In order to scare voters, particularly the young, into voting Democratic, there have been emails circulating that point to HR163 and S89, bills proposing national service for both men and women. Both bills are proposed and co-sponsored solely by Democrats, a fact that the emails fail to mention. Although some commentators have suggested that "members of both parties have introduced bills to reinstate" the draft, I have not been able to locate any introduced by Republicans in the current Congress by following the links to the supposed evidence (perhaps others who know of any current Republican-sponsored bills to reintroduce the draft can help me on this). The most that has been pointed out so far is the statement of one Republican Senator (Chuch Hagel) favoring a draft, no actual Republican bills.

These emails usually, however, go further, sometimes claiming that there are plans to call up both men and women on June 15, 2005 and that "The administration is quietly trying to get these bills passed now," which is flatly false. The emails also report that the budget for the Selective Service office has been increased substantially for next year, which FactCheck claims is an outright falsehood.

CBS noted that both campaigns denied any intent to reintroduce the draft, which is obviously a dead issue for both sides, but if you read the transcript, by showing phony documents and repeating phony facts, the email hoax is presented as plausible. Nowhere do they report that this is an already debunked email hoax. Nowhere do they report that there are official statements from the relevant government officials denying this hoax.

If CBS would fall for the forged Burkett Guard documents and the phony draft emails supposedly from the Department of Defense, can the Nigerian funds transfer letter be far behind?
2004 MacArthur Fellows:

The 2004 MacArthur Fellows have been announced. Information here. As Brian Leiter has noted, these awards are often but misleadingly described as "genius grants." It would seem more accurate to say that the awards are given to interesting people doing interesting work that the fellowship committee finds commendable and wants to recognize with an award. Of possible interest: as best I can tell from the names and pictures, there are only five white men among the 23 Fellows this year. Also, eight of the Fellowships were awarded to professors in the fields of science and engineering, and six of the eight are women.

  UPDATE: A reader points to this article from Slate a few years back that provides some additional (humorous) perspective. An excerpt:

[T]he perfect MacArthur genius is still out there: a one-named Berkeley professor who choreographs interpretative jazz dances about how genetically modified food will destroy humanity.

Tuesday, September 28, 2004

Churches and International Human Rights:

Here's an excerpt from a Institute for Religion & Democracy study of "Human Rights Advocacy in the Mainline Protestant Churches (2000-2003)":

Research Design

We analyzed human rights criticisms made by four mainline Protestant denominations (the United Methodist Church, the Evangelical Lutheran Church in America, the Episcopal Church and the Presbyterian Church U.S.A.) and two ecumenical bodies (the National Council of Churches and World Council of Churches) over a period of four years (2000-2003) to determine which nations were criticized for human rights violations and why. We used the 2004 human rights assessments published by Freedom House as a benchmark for human rights in nations analyzed. A given church statement or document was considered to have criticized human rights in country X when, in the context of a discussion of human rights in country X, it passed negative judgment on specific current policies or actions of the government of X.


Overall, criticisms of Israel amounted to 37 percent of the 197 human rights criticisms offered by the churches during those years, only slightly higher than the 32 percent of criticisms leveled at the United States. The remaining 31 percent of criticisms were shared by twenty other nations. For every one criticism of any other foreign nation, one criticism was made of the United States and one of Israel. Nearly all churches demonstrated this focus on the United States and Israel in their legislative actions, their statements, their news sources, or all three.

As a result, nearly three out of four human rights criticisms were made of nations designated as free (mostly the United States and Israel) by the Freedom House assessments. Those rated not free totaled 19 percent of criticisms, while partly free nations totalled only 8 percent of criticisms. Of the fifteen worst human rights offenders in the world, only five were criticized by the churches during the four year period studied.

Regions like the Middle East (apart from Israel) and Central Asia (former Soviet republics) were the most notable areas ignored by the churches in their human rights advocacy. Partly free nations, where church influence might be most effective in widening the limited civic space already open to indigenous Christians and other citizens, received the least attention.


The mainline churches are not adequately addressing the wide range of human rights abuses taking place in the world. Denominations are focusing on the United States and Israel as the primary perpetrators of human rights violations. Great attention to the United States may be expected from churches that find their homes there. But the dramatic focus on Israel as opposed to many more repressive regimes, including other U.S. allies known for human rights abuses (such as Saudi Arabia and Egypt), must be challenged.

In the 1970s and 1980s, the churches made the mistake of supporting oppressive Soviet-sponsored liberation movements around the world. They largely ignored human rights abuses in the Soviet Union and its satellite states, instead focusing on U.S. policy as the primary source of abuse. It appears that mainline denominations may be making the same mistake today with the Arab and Muslim worlds, ignoring many of the most serious abuses while apparently laying heavy blame upon the United States and Israel not only for their own lesser abuses, but also for the abuses of others. . . .

I can't speak to the accuracy of the details in the report, and I'm not an expert on the subject. But this seemed worth passing along, because it does strike me (as a layperson) as having a good deal of truth to it.

Thanks to Patrick Oden for the pointer.

"Respect the Box":

I was just thinking back to a particular set of incidents (the details need not detain us), and it struck me how important it is both to think outside the box and to understand why the box is there and why 95% of the answers are within it. So the catchy slogan "think outside the box," important as it is, needs to be complemented with an equally catchy antithesis. Hence, my proposal:

Respect the Box.


I've gotten a bunch of messages from people who say they're surprised that we haven't posted anything about the Laurence Tribe copying controversy (see here and here).

Here's a tip: Never be surprised when people don't invest a good deal of time and effort into stuff that they aren't really required to do. Actually, my tentative sense is that while the 19-word literal copying by Tribe was wrong -- and that he was right to apologize for it as soon as the charge was made -- the paraphrasing of the other material was probably not wrong. (I can't speak, of course, for my cobloggers on this.)

In a book aimed at a mass market audience, which doesn't have footnotes or endnotes (and publishers, I'm told, often dislike having footnotes and endnotes in such books, since they make the book seem more daunting and add pages), it's legitimate to rely on facts reported by others without having to prefix each sentence with "As Professor X said, Y got 100,000 votes more than Z, but lost in the electoral college." Nor is there a need to credit people for short phrases like "vagaries of the electoral college," where the alleged novelty is simply the use of the word "vagaries." In a law review article, you'd drop a footnote, but when you don't have footnotes, you'd often just generally list the book in a bibliography and be done with it. Copying really original ideas from another book is a different story, but I really didn't see much of that in the charges against Tribe.

But I say "tentative," because this is the sort of stuff that requires work to reach an informed opinion about, especially when the charges are allegations of personal misconduct, and allegations in my own professional field, where my judgments are likely to seem like expert judgments and not just a layperson's speculation. I don't want to give an off-the-cuff definite answer. Rather, I'd have to look at the books (I asked the library for them yesterday, but haven't gotten them yet); check to see the quotes in context; look carefully again at all the quotes; think some more about what the norms are or should be in this particular medium (a professor writing a book for a lay audience, without footnoting); and more.

That, as I said, takes work. Work takes time, especially when it's not your day job. At some point, the work becomes more trouble than it's worth, which means that I might conclude that I don't want to publish any definite view on this subject at all. In fact, I wouldn't have even taken the time to write this post if so many people hadn'tt e-mailed me about the subject.

So please, never be surprised that we're not blogging about something, and especially not when blogging about that something actually requires a good deal of time and effort. Sometimes we'll invest that time and effort, if we're interested enough, and if we're inclined to set aside our other business. Sometimes we won't. Nothing at all surprising about it.

Digital Evidence and the New Criminal Procedure: A draft of a new forthcoming essay of mine, Digital Evidence and the New Criminal Procedure, is now available on SSRN. The essay studies the differences between traditional criminal investigations and investigations into computer-related crimes, and argues that computer-related crimes will trigger new rules of criminal procedure in response to those differences. It's a fun and relatively short piece — at least by the standards of law reviews — and will be published as an essay in the January 2005 issue of the Columbia Law Review.

  To download the current draft, click here, scroll down to the bottom of the page, and click on "Download document from SSRN." As always, comments from VC readers are welcome. I am particularly interested in comments from any computer geeks out there who might be able to point to errors or omissions in my technical discussions. Here is the Essay's introduction, which should give you a flavor of the piece:
This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.

Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.

This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.

Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.

This Essay will proceed in three parts. Part One compares the basic mechanisms of traditional crimes and computer-related crimes. It explains how the switch from physical to electronic crimes brings a switch from physical evidence and eyewitness testimony to digital evidence, and how investigators tends to use very different methods of collecting the two types of evidence. Part Two turns from the facts to the governing law, focusing on the Fourth Amendment's prohibition on unreasonable searches and seizures. It shows that existing Fourth Amendment doctrine is naturally tailored to the facts of physical crimes, but that a number of difficulties arise when that doctrine is applied to the facts of computer crime investigations. Part Three argues that new rules are needed to govern digital evidence collection, and offers preliminary thoughts on what those rules might look like and what institutions should generate them. It also shows that courts and Congress already have begun responding to the problem of digital evidence with a number of computer-specific rules.
Please send any comments to okerr at

Fellow lawprof Joe Olson passes along this quote, from John O'Sullivan:

This high-minded timidity [of treaties and conventions enforced only against those who agree in advance to be bound by them] permeates modern culture at high and low levels. For instance, a recent thriller about hostage-taking, "Man on Fire," directed by Tony Scott and based on a novel by A.J. Quinnell, received harsh critical reviews precisely because it seemed to approve of revenge and vigilantism.

Creasy, played by Denzel Washington, is a burnt-out former mercenary who becomes a bodyguard to a young girl in Mexico City. She gradually draws him back from his suicidal despair by her frank affection. When she is kidnapped and apparently murdered, he methodically sets out to find and kill the men responsible — in very brutal ways. As in the 1970s Charles Bronson movie, "Death Wish," the viewer essentially sympathizes with Creasy. The critics thought this a crudely vicious message on both occasions.

But as Bacon pointed out: "Revenge is a kind of wild justice." It will inevitably — and arguably rightly — become the resort of decent people when law and government fail to deliver justice. Post-modern governments fail in just that way. Humanitarian bodies such as Amnesty International are even worse: They practice a sort of unilateral civil libertarianism that holds governments to account for the smallest infraction of civil liberty but treats terrorism as a natural disaster. Transnational bodies like the U.N. and the EU are worse — they seek to take the weapons of war and capital punishment from us in our struggles against terrorism, slavery, piracy and hostage-taking and to force us to rely instead on their own paper resolutions and elevated principles.

All these responses — from the critical reactions to "Man on Fire" to the E.U.'s prohibition of capital punishment — are overcivilized. That sounds almost like a compliment, as if it meant more civilized. In fact, to be overcivilized is to be less civilized because genuine civilization includes a robust willingness to enforce its order and truths on anarchy, violence, murder and superstition.

As long as we remain overcivilized, anarchy, violence, murder and superstition will continue their sinister recovery — until one day you may think you hear your own mother's voice [pleading for your life] on the network news.

There are obvious reasons not to take this argument to its logical conclusion, which might push us from the overcivilized to the undercivilized; the point it makes is one of those points that is valid, but has to be kept in mind alongside some equally valid points on the other side. But it is indeed a point that needs to be remembered.

Follow-up as to Tory v. Cochran:

One item I forgot to ask -- will Johnnie Cochran decide to argue the case himself? He was represented in the California Court of Appeal by two lawyers from Nemecek & Cole, a fairly small L.A. firm; and he's not primarily an appellate lawyer or a First Amendment lawyer, though he did argue and mostly win the Parks v. LaFrance Records appeal last year. If all he wanted to do was maximize his chances of winning, he'd probably get a top Supreme Court litigator to argue the case for him. (Such litigators cost a lot of money, but Cochran's own time is worth a lot of money, and it takes a lot of time to prepare for an oral argument.)

Still, can Cochran pass up what might be his one chance to argue before the Supreme Court, especially when there's really not that much at stake for him if he loses? I don't know much about the man, but many is the lawyer who'd jump on that opportunity. Hey, if nonpracticing lawyer Michael Newdow and nonlitigator-CPA-Certified Financial Planner Silvia Ibanez can do it, why not Johnnie Cochran?

The one downside is that it would attract still more attention to the case, which after all is about a client's allegations of Cochran's malfeasance. But the allegations have been explicitly found false, and sound not very plausible (they're mutterings about a conspiracy, by the sort of person who follows his sentences with multiple exclamation points). "Johnnie Cochran argues before the U.S. Supreme Court" is the sort of story Cochran might like. Hey, "Eugene Volokh argues before the U.S. Supreme Court" is the sort of story Volokh might like (not that it's ever likely to happen), so why shouldn't Cochran?

Related Posts (on one page):

  1. More on Johnnie Cochran:
  2. Follow-up as to Tory v. Cochran:
  3. Tory v. Cochran:
What Kerry was doing at Yale (as seen through the eyes of the Yale Daily News). As the election has drifted into deadly serious exposes of the lives of George Bush and John Kerry in the early 1970s, I thought a look back at a lighter time in their lives might be fun (no, there are no smoking guns in this stuff).

Last February, the Yale Daily News had two interesting stories about Kerry at Yale--one a mostly positive news profile, the other a mostly negative editorial. Both are interesting (and were largely overlooked at the time).

The mostly positive news story about Kerry at Yale:
And although Kerry was chairman of the Political Union's smallest party -- the Liberals -- he gained enough support across the political spectrum to win the presidency late in his sophomore year. Presiding over the Political Union during the heated presidential elections of 1964, Kerry even earned the admiration of students on the other side of the aisle, said former Party of the Right chairman John McGonagle Jr. '66.

Kerry's selection as class orator surprised no one, since he had spent much of his Yale career speaking to classmates in his distinctive Massachusetts accent.

"I think it was a cultured accent, and it's frankly a senatorial accent," Abbott said. "It just sounded awfully funny to hear this accent out of an 18-year-old kid." ...

Yet in Kerry's day, as Yale President Kingman Brewster began liberalizing the Yale admissions process, a divide remained between prep school graduates and students who attended public schools. To some students who had not attended New England boarding schools, Kerry seemed like the "ultimate preppy," Abbott said.

"At that time, I think he had a bit of a reputation for standoffishness, which I think was a bit well-deserved," said Robin Landis '66, who played with Kerry on the soccer team.

But Kerry's friends say his reputation for aloofness -- which led the New Republic to run a cover story last year asking, "Can John Kerry Make People Like Him?" -- is inaccurate.

"I think John as an undergraduate at Yale had some of the same rap that he gets today, that he's overly serious, that he takes himself too seriously," said Frederick Smith '66, a fellow member of Skull and Bones who later founded the FedEx Corporation. "I think that's really a misnomer, because he's actually a lot of fun."

Kerry certainly was serious at Yale. Because he often woke up at 5 a.m., his suitemates gave him a single, Barbiero said. Between his sports teams, his political activities, and his classes, Kerry did not have much time to spare.

"John was just a guy who was very impatient," Barbiero said. "He didn't like lines -- he had so much energy, he had no patience to queue up."

... "John was a person who took the process of politics very seriously and he gave it a great deal of respect," McGonagle said.

But Kerry's YPU presidency was not universally supported. During his tenure, a group of younger students split off from the Liberal Party to create a new Party of the Left. Members of the new party said Kerry's vote against a measure supporting a progressive income tax helped instigate their secession.
The mostly negative editorial:
Apparently, one of the first things he [Kerry] told his freshman year roommates was that he was going to be president one day. He clearly had nothing better to think about, such as de-bunking his bed or freshman English. Okay, fine, we all did some pretty silly stuff when we arrived at Yale. Kerry's problem was that he apparently never got better during his years at Yale.

Just like many members of the YPU, Kerry was an amazing speaker. In fact he was probably the best. And it seems that at Yale, he was generally disliked.

The Yale Liberal Party, of which I am a member and John Kerry used to be chairman, passes on many unpleasant stories about him. According to Liberal Party lore, Kerry was among the worst chairs in its history. Jorge Dominguez, currently a professor at Harvard and a member of Kerry's Liberal Party Executive Board, reports that under Kerry's leadership the party went on YPU probation. Probation means that the party's leader could not get enough of the party's members to sign a YPU attendance roster. Although getting people to sign in turns out to be a surprisingly arduous job, very few chairmen fail to do it in the end. Not getting enough signatures suggest one of two things: either the chairman faced some unfortunate circumstances or he has some personality problems. According to Dominguez, Kerry's leadership caused his probation.

In order to get back at Kerry, members of the Liberal Party formed the Dixwell Society. By now, the group is largely defunct, although it still officially meets during Liberal Party reunions and its story gets retold for everyone wishing to hear. The society's major point was to include every former chairmen except one who most people disliked. You can guess who. In addition, the News' article reports that due to its conflict with Kerry part of the Liberal Party split off to form the Party of the Left.
At Yale (probably in 1971) I remember seeing John Kerry speak against the war in Vietnam. I was mightily impressed. He struck me at the time as "Kenedyesque," and I thought he would make a great President one day, though I thought him probably too radical to get elected.
Tory v. Cochran:

The Supreme Court has just agreed to hear a First Amendment case involving injunctions against speech. Ulysses Tory, one of Johnnie Cochran's ex-clients, started accusing Cochran (apparently falsely) of all sorts of bad things, and picketing his office to publicize these allegations. Cochran sued, the court found that the statements were libelous (the trial was held before the judge, without a jury), and the court issued a permanent injunction that barred Tory from (among other things) "(i) picketing Cochran [or] Cochran's law firm; (ii) displaying signs, placards or other written or printed material about Cochran [or] Cochran's law firm; (iii) orally uttering statements about Cochran [or] Cochran's law firm."

The California Court of Appeal upheld the injunction; it concluded that the injunction wasn't an unconstitutional prior restraint because "Although a prior restraint can be presumptively unconstitutional, that rule has no application where, as here, an injunction against a private person operates 'to redress alleged private wrongs,' not to suppress a legitimate publication." In context, it seems that the court was trying to distinguish speech on matters of so-called "legitimate public concern," that generally can't be enjoined, from speech on matters of supposedly "private concern," such as a lawyer's supposedly cheating his client.

I predict that the Supreme Court will overturn the lower court decision. I also predict that the vote will be 9-0, though I'm less confident of that. (Warning: My predictions of Supreme Court decisions are notoriously unreliable, and yet I persist in being confident about at least some such predictions. How does that make any sense?)

Here's my thinking: There's some controversy over whether a court may enjoin libelous statements after a finding on the merits that the statements are indeed libelous. The likely answer is that it can, since such libelous statements are unprotected by the Constitution. (See this article for more.)

But here the court enjoined all statements (in certain media) by Tory about Cochran, without any regard for whether they are libelous. The statement "I think Cochran is evil because he represented O.J.," clearly a constitutionally protected statement of opinion, would be enjoined, too, as would true factual allegations about Cochran. That can't be permissible. And even though the Court has said that statements on matters of private concern are more restrictable in some contexts — chiefly when the government is acting as employer, or when the statements are false — it has stressed that they are nonetheless constitutionally protected. They can't be enjoined, when they're constitutionally protected opinion, simply because the speaker has said unprotected things in the past.

I also think this case illustrates the defects of the public concern / private concern line, a matter that I have discussed at length in this article and in the last six pages of this article. Criticisms of prominent lawyers are matters of legitimate concern to the public as well as to the ex-client who feels wrong. If they involve false statements of fact, they may be properly punishable, in some situations even if they're on matters of public concern. But if they involve true statements or statements of opinion, they should remain protected. I doubt, though, that the Court will have to comprehensively reexamine this distinction in this case: It will be enough for the Court to say (as it did in Connick v. Myers) that even statements on matters of private concern are constitutionally protected (at least against injunctions imposed on private citizens, as opposed to firing of government employees), and can't be enjoined if they're opinions or true statements.

Ann Althouse ponders John Kerry. In a couple of thoughtful posts (here and here), Wisconsin law professor Ann Althouse recounts the evolution of her thinking about John Kerry. They are worth reading, whomever one favors in the election.
Supreme Court Agrees to Take Eight Cases: SCOTUSBlog has the scoop.

  The most interesting case is Kelo v. New London, No. 04-108, which considers whether the Takings Clause allows governments to take real property under its power of eminent domain for economic development purposes. The case was brought to the Court by the Institute for Justice, and our own former co-blogger Sasha Volokh had some involvement in this case at the trial stage. The Connecticut Supreme Court's opinion in the case is available here.
Rooting for Bad News?

At Slate, Christopher Hitchens asserts that at least some Democrats are hoping for bad news in Iraq (via Roger Simon):

There it was at the tail end of Brian Faler's "Politics" roundup column in last Saturday's Washington Post. It was headed, simply, "Quotable":

"I wouldn't be surprised if he appeared in the next month." Teresa Heinz Kerry to the Phoenix Business Journal, referring to a possible capture of Osama bin Laden before Election Day.

As well as being "quotable" (and I wish it had been more widely reported, and I hope that someone will ask the Kerry campaign or the nominee himself to disown it), this is also many other words ending in "-able." Deplorable, detestable, unforgivable. ...

The plain implication is that the Bush administration is stashing Bin Laden somewhere, or somehow keeping his arrest in reserve, for an "October surprise." This innuendo would appear, on the face of it, to go a little further than "impugning the patriotism" of the president. It argues, after all, for something like collusion on his part with a man who has murdered thousands of Americans as well as hundreds of Muslim civilians in other countries. ...

If you calculate that only a disaster of some kind can save your candidate, then you are in danger of harboring a subliminal need for bad news. And it will show. What else explains the amazingly crude and philistine remarks of that campaign genius Joe Lockhart, commenting on the visit of the new Iraqi prime minister and calling him a "puppet"? Here is the only regional leader who is even trying to hold an election, and he is greeted with an ungenerous sneer.

The unfortunately necessary corollary of this—that bad news for the American cause in wartime would be good for Kerry—is that good news would be bad for him. Thus, in Mrs. Kerry's brainless and witless offhand yet pregnant remark, we hear the sick thud of the other shoe dropping. How can the Democrats possibly have gotten themselves into a position where they even suspect that a victory for the Zarqawi or Bin Laden forces would in some way be welcome to them? Or that the capture or killing of Bin Laden would not be something to celebrate with a whole heart?

Jim Lindgren:

I'm delighted to report that Jim Lindgren will be joining us here on this blog. Jim is a law professor at Northwestern University law school, and he's written about demographics, blackmail, bribery, gun ownership history, legal ethics, pornography, scholarship, and much more (see here for his impressively long and varied list of publications). I've long admired his work, and it's a great pleasure to have him coblogging with us.

Interim Report -- Day 1 of the Blogosphere Challenge: I've received lots of great responses to my three questions about Iraq. In case you haven't seen the initial post, here are the three questions I posed to the pro-war blogosphere:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
  Although I am accepting submissions until Friday at 5 pm EDT, I have received about 35 responses already in the first 24 hours of the challenge. Rather than wait until Friday to post all of the responses at once, I figured it would be better to start with the initial batch and then post links to more as needed.

  My hope is that VC readers of all ideological stripes will take some time and check out a number of the responses linked to below. I have listed the responses in the order I received them, so feel free to try some of the links near the middle or bottom of the list. Also, feel free to participate in the debate, whoever you are. If you are a pro-war blogger and you think that you could do better than the entrants below, please consider posting responses to the three questions on your blog and sending the URL of your post to me at orinkerr at If you disagree with some of the responses or just have some thoughts on the matters they discuss, please feel free to leave comments on some of the blogs linked to below. Most of the blogs linked to below allow comments (unlike the VC itself — ironic, I know), and I'm sure the bloggers linked to below would enjoy receiving comments on their posts.

  Ok, enough preview. Here are the responses I have received so far:
Pajama Guy
The Spoons Experience
Cognative Dissident
Error Theory
Bay Area Buzz
Rasmusen's Politics Weblog
Chicago Boyz
Thinking As A Hobby
Pete The Elder
The Shadow of the Olive Tree
Occams Tweezer
Cafe Hedonistix
tex the pontificator
From across the Pond
A Physicist's Perspective
MuD & PHuD
Sebastian Holsclaw
Fancy Store-- Bought Dirt
One Fine Jay
Moonage Political Webdream
I Could Be Wrong
par blog
Justus For All
Casualty of Capitalism
Dr. B's Finest
The Debate Link
Who Can Really Say?
Pharoah Speaks
The Religious Middle
Pirates Cove
Mad Anthony
Creative Destruction
Former Clerks Respond to Vanity Fair Story: A group of about 90 former Supreme Court clerks (along with some prominent practitioners) have signed a statement about the recent Vanity Fair article on Bush v. Gore. An excerpt from the statement:
  [T]hese breaches of each clerk's duty of confidentiality to his or her appointing justice — and to the Court as an institution — cannot be excused as acts of "courage" or something the clerks were "honor-bound" to do. To the contrary, this is conduct unbecoming any attorney or legal adviser working in a position of trust. Furthermore, it is behavior that violates the Code of Conduct to which all Supreme Court clerks, as the article itself acknowledges, agree to be bound.
  Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court.
  Given the polarization that seems to infect nearly everything relating to Bush v. Gore, it is perhaps worth noting that most of the signatories clerked for the Justices in the Bush v. Gore majority. As far as I know, no former clerks of the Bush v. Gore dissenters signed on.**

  In any event, Tony Mauro has more on the story here. Thanks to Howard for the link.

  **UPDATE: A reader points out that one of the signatories, Michael Leiter, clerked for BvG dissenter Justice Stephen Breyer in OT01.

Monday, September 27, 2004

"The Cult of Che":

Paul Berman in Slate rightly condemns the popular cult of Che Guevara.

Banned Bibles, books, and stem cell research:

Last week, I blogged about a Republican political mailing whose "cover shows a Bible with the word 'BANNED' across it and a photo of a man, on his knees, placing a ring on the hand of another man with the word 'ALLOWED.' The mailing tells West Virginians to 'vote Republican to protect our families' and defeat the 'liberal agenda.'" (The quote is from an AP story.)

Some readers complained, quite harshly, that this mailing was "dishonest," because of course liberals aren't trying to ban the Bible. I was skeptical: It seemed to me that in context this would be understood as referring not to outright criminalization of the Bible (precisely because that's so highly implausible), but rather to the exclusion of the Bible and Bible verses (such as the Ten Commandments) from public school curricula and from posting in government buildings and parks.

I've thought a bit more about this over the weekend. In response to my request for the full text of the mailer, readers sent me this page and this one; the covers had already been posted here. Readers also pointed to two other uses of "banned": (1) the American Library Association's use of "banned books" to refer to books that were merely excluded from public school curricula, and (2) the references to a "stem cell research ban" to describe the Bush Administration's decision to substantially limit federal funding for stem cell research. (See, for instance, this Kerry press release, and the Spinsanity criticism of the "stem cell research ban" locution; thanks to Jim Christiansen and John Vecchione for reminding me about the stem cell research point.)

Here's what I've tentatively come to on this. First, I agree the use of "ban" in any of these situations is imprecise and potentially misleading — it may make people assume that someone really is flatly outlawing something, rather than just denying it government funding or a place in government schools or on government property.

But, second, whether the usage is actually misleading depends on how people are likely to perceive it. If the literal meaning is clearly extremely implausible (such as that the liberals would actually criminalize private possession and distribution of Bibles), then people are more likely to recognize the alternative meaning. And this is especially so if the usage is in a medium that's known for hyperbole (such as political mailers), then I suspect that people will discount it in some measure. This is why, having read both the cover separately and the cover and the insides together, it seems to me that the flyer is likely to be understood as making a plausible allegation — that liberals are seeking to ban the Bible from public schools (at least in most contexts) and from government-run displays — rather than a wildly implausible one (that they're seeking a total outlawing of the Bible).

Some of my correspondents suggested that the mailers would reach such a partisan and unreasonable audience that the readers would believe that liberals are really trying to prohibit anyone from owning or distributing Bibles. That just strikes me as implausible — but in any event, presumably anyone who believes this of the liberals is already a very firm conservative, and one who's likely to vote against liberals. The swing voters, or the ones who might not show up, are probably not going to make such an extreme assumption about liberals.

Finally, I think that the talk of the supposedly already implemented "stem cell research ban" is more likely to be misleading, especially if it's in a supposedly neutral press account but also if it's in a political press release. A total ban on stem cell research, federally funded or not, is (unfortunately) not implausible. Many people who haven't been following this debate might reasonably assume that a "stem cell research ban" is referring to a true criminalizing of stem cell research, and might thus come away with a mistaken impression of what the Administration has done. But I don't think that many people would reasonably assume that the "liberal agenda"/Bible/"banned" claim is indeed referring to a true criminalizing of Bible possession and distribution.

(Note that if the claim were simply that the "conservative agenda" would include a total ban on stem cell research, this would not be unreasonable — I'm not sure that a second Bush Administration or a heavily Republican Senate would do this, but it's possible that they might. I object here to claims that the Bush Administration has implemented a stem cell research ban.)

Related Posts (on one page):

  1. Banned Bibles, books, and stem cell research:
  2. More about "Banning" the Bible:
  3. "Banning" the Bible:
  4. Banning the Bible:
Native American, American Indian, and Indian:

Slate's Explainer points out that more American Indians actually prefer the term "American Indian" to "Native American." Both, I think, are fine, but this further shows that "American Indian" isn't offensive or outdated, as some suggest. (That a group prefers term A over term B isn't a sufficient condition to show that term B is offensive -- but it is generally a necessary condition.)

The column, however, also says, without citing any studies, that

Perhaps the biggest goof is to drop the American from American Indian, as President Bush did at the ceremony while noting that 'like many Indian dwellings, the new museum building faces east toward the rising sun.' Native Americans/American Indians often dislike this simplest of monikers, as it can lead to confusion about whether a person is a tribal member or an émigré from the Indian subcontinent.

Yet a quick google search shows that quite a few Indian tribes seem to use "Indian" rather than "American Indian," at least where there is no likely confusion about which Indian they're talking about (and in Bush's speech there was of course no likely confusion).

Indians thus sometimes speak of the "X Tribe of Indians" (see, e.g., here, here, here, and here), but also even when the term "Indian" is used without the explicit "X Tribe of" qualifier (see, e.g., here, here, and here). I see no reason to think that these Indians or President Bush committed "the biggest goof," or any goof at all.

Unfortunately, though the column recognizes that the statements of particular American Indian activists aren't always accurate evidence of general preferences among rank-and-file Indians, and that surveys may reveal more than the high-profile complaints, it gives no survey evidence that American Indians really perceive this as a "goof." It simply says that they "often dislike this simplest of monikers," with no indication of how "often" this is. Is it that 10% of Indians dislike it? That 30% dislike it and 70% are just fine with it? That 30% dislike it, 20% like it, and the rest have no opinion?

I'll e-mail the Explainer people about this, and let you know if it turns out that indeed there is some serious evidence behind the "goof" claim.

Bainbridge on Wine and Food:

My colleague Stephen Bainbridge, of, has started a new blog devoted just to wine and food, Check it out.

More on Gender and Law Teaching Jobs:

Last week, I posted about some of the AALS statistics on law teaching jobs. I noted that those statistics suggest that women have a slightly higher rate of success than men in getting law teaching jobs; although women make up only about 35-40% of the faculty candidates, they tend to land about 45% of the Assistant Professor and Associate Professor jobs.

  A bit of digging around by a trustworthy source turned up an important caveat to those figures: these numbers cover both tenture-track and non-tenure track positions. The AALS calculated those figures only by comparing faculty candidates one year to faculty candidates listed in the AALS faculty book the next year. The book sometimes lists non-tenure-track faculty as well as tenture-track and tenure faculty, however. As a result, the apparent fact that female candidates have slightly more success than male candidates at landing some kind of teaching job doesn't address the more important issue — success rates at landing a tenure-track position. Given anecdotal evidence that female candidates tend to obtain an unusually high percentage of non-tenure track positions, it seems quite possible that the answer to this question is quite different from the picture suggested by the existing statistics on the AALS website.

  The AALS is apparently working on new statistics that address these issues, and I'll post a link to those stats when they come out.
The Responses Are Beginning to Come In

to my blogosphere challenge from earlier today. So far I have about a dozen responses, and they're great. But I want more, many more. So keep sending me your links to orinkerr at I'll probably post links to the first set of responses later today, but it depends in part on how many I receive. Thanks to everyone who has participated.


I got two messages agreeing with some music recommendations made here many months ago, so I thought I'd pass them along, in case others can likewise profit from them:

I just wanted to thank you for an old music recommendation you posted a year and a half ago — Lucinda Williams' "World Without Tears".

I've got it on Those Three Days right now, and it truly is a stunning song. . . .


I wanted to thank you to pointing me to Shawn Colvin's "Polaroids". What a wonderful song!

I was so wary then
The ugly American
Thinner than oxygen
Tough as a whore

Fantastic! I'm a longtime fan of Shawn, but I wasn't aware of this older (1992) album. . . .

I've gotten a great deal of pleasure — and even more than pleasure — from my favorite songs, including these two, and I hope that some of you might do the same.


The working paper of my article "An Economic Analysis of the Consumer Bankruptcy Crisis" is now available on-line through SSRN, and it currently remains under submission and consideration by law reviews. Given the tidal wave of consumer bankruptcies in recent years, the time is ripe for a reconsideration of the prevailing model of consumer bankruptcy. This article presents a comprehensive economic and empirical analysis of the prevailing model. Here's the abstract again for those who missed it last time:

Abstract: Since the inception of the first permanent American bankruptcy law in 1898, the intellectual and political understanding of consumer bankruptcy has been anchored in a model that views bankruptcies as resulting from household financial distress. For much of the Twentieth Century, this traditional model provided a plausible explanation of bankruptcy filing patterns and clear normative policy implications. Moreover, the widespread intellectual and social consensus on the traditional model was reflected in the enactment of the current Bankruptcy Code in 1978, which rests on the intellectual foundation of the traditional model. To this day, leading bankruptcy scholars adhere to the traditional model and its implications. Over the past twenty-five years, however, the traditional model has broken down. During a period of unprecedented prosperity and economic stability, personal bankruptcies have soared, raising fundamental questions about the validity of the traditional model.

This article argues that there has been an unacknowledged sea-change in the economics of consumer bankruptcy in America. This article first provides a scientific analysis of the traditional model to determine whether these new trends can be accommodated within the traditional model. It focuses on the key variables offered by the traditional model as components of household financial distress: first, high levels of household indebtedness, including the influences of credit cards and home mortgages; second, unemployment and downsizing; third, divorce; and fourth, health problems, health care costs, and lack of health insurance. A scientific analysis of the evidence demonstrates that although these factors can explain part of the background exogenous level of bankruptcies, as well as some regional variation in bankruptcy filing rates, they cannot explain the upward trend in bankruptcy filing rates over the past twenty-five years. The article then briefly discusses an alternative model of consumer bankruptcy that can explain the increased propensity for consumers to file bankruptcy through an examination of the legal, social, and economic institutions of the consumer bankruptcy system.

I received many comments from readers when I last mentioned this article, especially with respect to the asserted effect of credit card indebtedness on consumer bankruptcy filings, and I promise when I get some time I will respond to some of them.

Debating the Invasion of Iraq -- Three Questions for the Pro-War Blogosphere: A year and a half have now passed since the invasion of Iraq. If you read the papers these days, the news coming from Iraq seems awfully depressing. The country is suffering about 70 hostile attacks a day, and 900 U.S. soldiers have died since the declared end of the hostilities — a rate of about 2 U.S. soldiers every day. Over 90% of Iraqis see the U.S. as an occupying force. Meanwhile, classified U.S. intelligence reports are pretty gloomy about what will happen in Iraq in the coming years. While U.S. public opinion on the war in Iraq seems evenly divided, right now the picture looks grim. I'm no expert in foreign policy, and wasn't sure whether the invasion was a good idea in the first place, but my sense is that attitudes towards the war in Iraq are becoming increasingly sour.

  So here's a little experiment in blogospheric dialogue. I would like members of the hawkish side of the blogosphere to post responses on their blogs to three questions I have about the situation in Iraq. In exchange, I'll post links to the answers on the Volokh Conspiracy. Here are my questions:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
If you are a blogger who is generally hawkish on Iraq and you choose to participate, please answer these three questions in a single post and e-mail the URL of your post to orinkerr at (Please don't use my account for this one-- instead, use orinkerr at

  My plan is to gather the links to the responses and post the links here on the Volokh Conspiracy so others can read, debate, and analyze the posts. I plan to be pretty indiscriminate with the links, too: so long as a blogger is (or was) pro-war and answers all three questions in English without excessive profanity, I'll provide the link to it.

  I realize that this is a bit exclusionary — I want blogged responses, not e-mailed responses — but it's easy to start a blog and I want to provide lots of links rather than a few excerpts. Also, I'll put a time cap on this experiment: to get a link, the URL must be recieved at orinkerr at by 5pm EDT on Friday, October 1.

  Ladies and Gentlemen, start your blogs.

Sunday, September 26, 2004

Notice of Volcanic Unrest:

Is it just me, or does this sound (only to lawyers, of course) like something out of an alternate universe legal system? Should it be followed by, say, an Action to Quiet Seismic Title, or an Order to Show Magma?

Thanks to InstaPundit for the pointer.

Tabloid Investigation Leads to Terrorist Arrests:

It's too early to tell if these arrests will amount to anything, but if they're legit it's quite a story. The CIA and FBI may have a hard time catching terrorists, but at least the tabloid newspaper News of the World appears up to the job.

If You Want to Be A Law Professor,

be sure to check out posts here, here, and here from Wisconsin lawprof Gordon Smith. Smith is the appointments committee chair at Wisconsin this year, and offers his own perspective on how schools select faculty candidates.

Who Would Osama Vote For?:

Eric Muller finds some interesting bumper stickers.

DAVID BRODER--FIRST HEAL THYSELF: A David Broder column in today's Washington Post mourns the decline of journalistic standards and emphasis on accuracy in the modern media business. Given Broder's track record of sloppiness and bending the truth to score his own political points, however, his complaints seem somewhat misplaced.

Broder writes today:

Time was when any outfit such as Swift Boat Veterans for Truth that came around peddling an ad with implausible charges would have run into a hard-nosed reporter whose first questions — before he or she ran with the story — would have been, "Who the hell are you guys? What's your angle? What's your proof?"

Any Texan with a grudge against George Bush and the National Guard who suddenly produced a purported photocopy of an explosive 30-year-old order signed by a dead man would have been treated with the deep distrust he deserved by the reporters to whom he offered his wares. And no professional journalist would have made a call to the Kerry campaign encouraging a flack to contact this dubious source.

We've wandered a long way from safe ground in the news business. Sometimes I wonder if we can find our way back.

But Broder's track record seems anything but consistent with this admonition to ask "What's your proof?" Consider his column published in the May 19, 2002 Washington Post, "A Bipartisan Outrage," which was a discussion of the long-pending Bankruptcy Reform Bill. Although it obviously has been awhile since this column was published, Broder's complaints about the sloppiness "the other guys" in the news business forces me to blow the whistle. Broder's column contains an astounding number of half-truths and distortions. In the column, he applauds the gridlock in Washington that has blocked the final passage of the bankruptcy reform bill, notwithstanding overwhelming bipartisan support for the measure. Broder wrote at the time:

Gridlock would doom me to write yet again next year on a topic that has been widely ignored except on the business pages in the press. It would require me to rail again about the way in which business lobbying — lavish campaign contributions to President Bush and pressure from big home-state bank and credit card employers on such Democratic senators as Tom Daschle and Joe Biden — has made this a bipartisan outrage.

But writing repetitious columns is a small price to pay if a bill as filled with inequities as this one is delayed or ultimately defeated.

He then added:

Credit card companies and the banks that own them claim they are being ripped off by people who run up unsecured debt and then file for bankruptcy to avoid paying. This bill would basically say that any family or individual whose income at least equals the state median and who has $100 a month left over after paying for food, clothing, housing and transportation would have to work out a five-year payment plan with the bank rather than starting over with a clean slate.

Ostensibly, it is designed to catch wealthy scofflaws. But it is likely to be felt most harshly by middle-class individuals who file for bankruptcy — 1.4 million of them last year. Their average income was less than $25,000....

Note the patent dishonesty in the combination of these two sentences--the bill would apply only to those whose "income at least equals the state median." Yes, in the next sentence he states that the "average income" of those who filed bankruptcy was less than $25,000. In fact, according to the Census Bureau, the median national income in 2002 (the year his column was written) for a family of four, was $59,981, ranging from $46,671 in Arkansas to $75,505. If, as Broder expressly states, the bill applies only to those who make above the state median income, how could it "harshly" impact the middle-class filers who earned $25,000 the year before? Clearly, Broder either hasn't done his homework here, or he is pulling a fast one for political purposes.

Broder also writes:

Gridlock would doom me to write yet again next year on a topic that has been widely ignored except on the business pages in the press. It would require me to rail again about the way in which business lobbying — lavish campaign contributions to President Bush and pressure from big home-state bank and credit card employers on such Democratic senators as Tom Daschle and Joe Biden — has made this a bipartisan outrage.

Notably absent from Broder's characterization of the politics of bankruptcy reform is a recognition that most supporters of the legislation (including liberals such as Barney Frank) have supported the legislation on the simple basis that it is fair and appropriate for high-income bankruptcy filers to repay some of their debts in bankruptcy if they can. Moreover, his ridiculously oversimplified view of the political process ignores the intensity of lobbying by lawyers and other special-interests who oppose bankruptcy reform in part because tightening the bankruptcy laws would reduce the number of filings--which would reduce business for bankruptcy lawyers and others. In fact, while Broder singles out Daschle and Biden, he fails to mention: (1) that the most adamant opponents of bankruptcy reform were those politicians who have received the most amount of contributions from lawyers, and (2) a study by the American Bankruptcy Institute that finds little correlation between lobbying money and votes on bankruptcy reform. In fact, a comprehensive study of voting patterns in Congress concludes that only about 15 of the 306 votes in favor of Bankruptcy Reform in the House of Representatives can be plausibly attributed to lobbying expenditures by financial industries. I have described all of this in more detail in law review articles, which can be found here, here, and here.

He writes in today's column, "The way to the top of journalism was no longer to test yourself on police beats and city hall assignments, under the skeptical gaze of editors who demanded precision in writing and careful weighing of evidence. It was to make a reputation as a clever wordsmith, a feisty advocate, a belligerent or beguiling political personality, and then market yourself to the media."

The issue here isn't whether bankruptcy reform is a good idea or a bad idea, which is an issue on which reasonable minds can disagree. Nor is it whether Broder is entitled to his opinion--as an opinion columnist, of course he is. The issue is that in his column on bankruptcy reform Broder's reporting on the actual facts is blatantly inaccurate and politically-motivated. He could have written a nuanced analysis of the issue, or reported that there are reasonable arguments on both sides as to the wisdom of the law. Instead, he distorted the facts for sensationalist and political ends. Given that he wrote the column two years ago, it seems a bit misplaced for him to now criticize his colleagues in the press for following his lead.
70 Attacks A Day:

The lead story in today's Washington Post reports that the number of enemy attacks in Iraq has reached 70 per day over the last few weeks, a considerable increase over other periods. About 20 attacks a day occur in Baghdad alone.

Kerry's Management Style: The NY Times has an interesting article in today's paper on Kerry's management style. An excerpt:
  Mr. Kerry is a meticulous, deliberative decision maker, always demanding more information, calling around for advice, reading another document - acting, in short, as if he were still the Massachusetts prosecutor boning up for a case.
  . . . .
   In interviews, associates repeatedly described Mr. Kerry as uncommonly bright, informed and curious.
  But the downside to his deliberative executive style, they said, is a campaign that has often moved slowly against a swift opponent, and a candidate who has struggled to synthesize the information he sweeps up into a clear, concise case against Mr. Bush.
  . . . .
  His attention to detail can serve him well on big projects, as it did when he sent aides scurrying across the country to find long-lost fellow Vietnam veterans who could vouch for his war record. But sometimes, his aides say, it is a distraction, as it was in early 2003, when they say he spent four weeks mulling the design of his campaign logo, consulting associates about what font it should use and whether it should include an American flag. (It does.)
Well, I Guess He Has To Retire Eventually:

Chris Geidner notes over at Blog DeNovo that speculation about retiring Supreme Court Justices is an old story; in particular, the NY Times was reporting "the widely anticipated retirement of John Paul Stevens" at the end of the Term as far back as 1994.

Useful Summary of Terrorism Prosecutions: In an appendix to a forthcoming law review article, Wake Forest University lawprof Robert Chesney lists and categorizes DOJ's anti-terrorism prosecutions. It's a pretty interesting list; to see it, go here, click to download the article, and scroll to page 105.

  Chesney identifies 33 terrorism-related prosecutions involving 92 defendants; provides a quick summary of the facts; and breaks down the cases by the charging strategies DOJ used. The current form of the appendix does not include the disposition of each case, but Chesney informs me that this is on the way; eventually the appendix will be online in the form of a searchable database along with information about how each case was resolved.

  Interesting stuff, and as far as I know it's information that the mainstream media has not generated on its own.