Thursday, October 21, 2004

Last week's Supreme Court cases:

It's a bit late, but I thought I'd pass along the always amusing Supreme Court summary, from Mark Stancil at Baker Botts. It's funny and actually pretty informative:

Hoping to put the "win" back in Erwin, Professor Erwin Chemerinsky (formerly of USC, now slinging fed. courts and con. law at Duke) scored his second grant of the Term with Van Orden v. Perry, Gov. of Texas (03-1500). The question presented is whether a large monument, six feet high and three feet wide (eight cubic cubits for our Biblical scholars), presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the First Amendment. The Fifth Circuit descended on Chemerinksy's argument like a plague of locusts, concluding that the display advanced a valid secular purpose and "would look nice with a gun rack, too." If you believe what you read on the Internet (and, when you're as lazy as I am, you have no choice) this is the Court's first foray into the Commandments game in 20-plus years.

Complementing Van Orden (but not consolidated with it), the Court granted cert. in McCreary County, KY v. ACLU of Kentucky (03-1693), which asks: (1) whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular; (2) whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by the court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols; (3) whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence; (4) whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion. The Sixth Circuit found the display unconstitutional, but it's tough to see the Court affirming here without sandblasting Moses and the Commandments off the frieze in the Court's argument chamber.

Appropriately, these two cases are likely to be resolved in accordance with I Kings 3:16-28. ("And [O'Connor] said: 'Fetch me a sword.' And they brought a sword before [O'Connor]. And [O'Connor] said: 'Divide the living child in two, and give half to the one, and half to the other.'").

Rounding out the day's Establishment Clause action is Cutter v. Wilkinson, Dir. Ohio D.O.C. (03-9877) - Whether the institutionalized-persons provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc-1, are valid under the Establishment Clause of the First Amendment. As relevant here, RLUIPA addresses the religious accommodations required for prison inmates.

Orff v. United States (03-1566) involves the slightly less exciting dispute over whose salmon was gored when a federal irrigation project was cut back to accommodate the Endangered Species Act. The Ninth Circuit concluded that petitioners, farmers who preferred that water flow to their crops rather than frisky fish, are not entitled to sue under the agreement governing the federal irrigation district. The question presented is whether the farmers are "intended" third-party beneficiaries of their irrigation district's water service and repayment contracts with the U.S. Bureau of Reclamation and therefore entitled to sue for breach thereof, or whether they are merely "incidental" third-party beneficiaries and therefore not so entitled?

Exxon Mobil Corp. v. Saudi Basic Industries Corp. (03-1696) comes to us from the Third Circuit and asks the age-old question: May the Rooker-Feldman doctrine, which bars lower federal courts from conducting de facto appellate review of decisions by state courts, be expansively interpreted to additionally incorporate preclusion principles and divest federal courts of jurisdiction solely because a pending state-court proceeding presents identical issues, notwithstanding the long-established system of dual federal and state jurisdiction? There is nothing particularly funny to say about the Rooker-Feldman doctrine.

In Exxon Corp. v. Allapattah Services, Inc. (04-70) and Maria Del Rosario Ortega v. Star-Kist Foods, Inc. (04-79) (consolidated for 90 minutes of oral argument), the Court granted cert. only on the question whether the supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement? (Exxon had also asked the Court to determine whether Rule 23 of the Federal Rules of Civil Procedure authorizes the certification of a multi-state class action where individual reliance by each class member is at issue and where the predominance of common issues can be established only by distorting the law of the applicable states.)

Lingle, Gov. of Hawaii v. Chevron U.S.A. (04-163) will be a nice companion to last week's grant in Kelo v. New London (04-108) (does condemnation of slums to allow high-end development meet the public purpose prong of the Takings Clause?). At issue here is a state law capping rents that oil companies can charge gas station lessees, which ostensibly was designed to keep retail fuel prices low. The Ninth Circuit struck down the law, finding it does not substantially advance the state's asserted public interest. The questions presented are: (1) Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of the property. (2) Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals.

The Court CVSG'd in three cases:

Bank of China, NY Branch v. NBM L.L.C. (03-1559) - (1) Did the Second Circuit err when it held, contrary to its own previous holding and the holdings of the First, Third, Seventh, and Ninth Circuits, that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish a "reasonable reliance" under 18 U.S.C. § 1964? (2) Did the Second Circuit err when it held, for the first time ever by any court, that civil RICO plaintiffs alleging bank fraud as predicate acts must establish "reasonable reliance" under 18 U.S.C. 1964(c)?

McFarling v. Monsanto Co. (04-31) - (1) May a patent holder lawfully prohibit farmers from saving and replanting seed as a condition to the purchase of patented technology? (2) Does obtaining patents on products which are the subject of licensing agreements afford an absolute defense to any claim that the licensing agreements violate the Sherman Act?

Comstock Resources v. Kennard (04-165) - Whether, under the False Claims Act, individuals who possess no personal, firsthand knowledge of any aspect of an alleged fraud have the requisite "direct and independent knowledge" to qualify as an "original source" under 31 U.S.C. § 3730(e)(4).

Offensive Personality:

Little-known fact — Indiana Code sec. 33-43-1-3 (and similar laws or professional oaths in Alabama, George, Idaho, Iowa, Michigan, Minnesota, Mississippi, New Mexico, Oklahoma, South Dakota, and Washington) states that

An attorney shall . . . [a]bstain from all offensive personality . . . .

Some of them even require lawyers to abstain from all offensive personalities.

UPDATE: Many thanks to reader Josh Dale, who pointed out that a similar California statute, which I originally cited, has been repealed (I was working off an old printout that I'd found in my files). I've updated the post to reflect the other, still-existing statutes.

Slate on Isaac Newton:

A fascinating short piece by James Gleick, the author of a recent Newton biography. (Naturally, especially fascinating for those who have just read Neal Stephenson's trilogy.)

Oh, this does not look good:

Slate's Election Scorecard projects — and, yes, who knows how it will come out on November 2? — Bush 271, Kerry 267. Close electoral vote + likely close popular votes in many states + the experience of 2000 = likely major nastiness come November 3. Yes, I know this has always appeared possible, but polls just remind us of it.

UPDATE: I forgot to link to Rick Hasen's piece on possible election disasters -- much worth reading it.

Coherence and the Supreme Court:

Stephen Bainbridge has some thoughts on why we can't expect complete coherence from Supreme Court decisions, responding to Charles Fried's op-ed criticizing the Court for incoherence in recent cases, and also citing Jack Balkin's response to Fried's op-ed. (For citations to Fried and Balkin, go to Bainbridge's site.)

Steve's America:

My friend Steve Kurtz had an odd idea: Photograph various amusing businesses named Steve's, and put the photos, together with various anecdotes, in a book. Sounds like a fun gift for people named Steve (though we Eugenes are still waiting for our volume).

The Law of Fisking:

A reader had asked me whether fisking was fair use, so I thought I'd put up a link to my old post on this.

Reason asks "Who's Getting Your Vote?"

Various people, including John Perry Barlow, Drew Carey, Nat Hentoff, P.J. O'Rourke, Glenn Reynolds, Nobel Prize winner Vernon Smith, various Reasoners, and yours truly, answer.


I see that The Onion has a special page that collects its election-related stories from the past few months. My favorite still remains "Kerry Makes Whistle-Stop Tour from Deck of Yacht."

Cathy Seipp on "Upperclass Twit of the Year,"

specifically as to the Guardian (U.K.) campaign of persuading Ohio voters to vote for Bush, out of sheer revulsion at British strangers' attempts to patronize them into voting for Kerry.

Accessing blogs from libraries:

Eric Muller (IsThatLegal?) writes:

IsThatLegal? Why, No. It's Not.

A reader informs me that this blog has been blocked by the Seminole(Fla.) County Public Library.

It's hard to know what got me on the banned blogs list. Perhaps the librarian is a big fan of Duran Duran. Or of Siegfried and Roy.

Or maybe it's the dog.

Seriously, this seems like an odd censorship policy to me. There could be a story here. Drop by your public library and see whether you can reach the blogs you like to read. (Unless they're, uh, you know, not safe for work.) If you can't reach some of them, ask your librarian why not, and leave a comment here.

Sounds like a good idea -- and maybe it turns out that some off-the-shelf filtering software blocks some blogs, which suggests that messages to the filter producer (once it's identified) might help get them unblocked wholesale.

More on Duke University:

Duke University welcomes to its campus a non-academic conference sponsored and attended by supporters of Palestinian terrorism, offering to foot the bills for security. Questionable judgment, but I'd have to know more about Duke's policies on such conferences to reach a conclusion. If Duke would be similarly hospitable to a conference of fundamentalist Christians and Jews who wish to expel all Palestinians from the "Land of Israel" in preparation for the coming/return of the Messiah, then I will grant that this is solely an issue of freedom of speech. Can't believe that the fundamentalist conference would be welcomed at Duke? Neither can I.

Regardless, Jewish community activists warned that the venomous views of the conference organizers would inevitably cause a deterioration in the comfort-level and status of the Jewish community at Duke. Lo and behold, as soon as the conference ended, one of Duke's star students, a recipient of a full tuition merit scholarship and a journalism award, penned a blatantly anti-Semitic article for the school newspaper. (I explain the broader political significance of this article at the end of this post.)

Duke President Richard H. Brodhead, somehow unable to demonstrate the famed sensitivity of university administrators to anything that smacks of "racism," knows who the biggest victim of this fiasco is: himself. He writes: In the weeks before the conference, I received many reasoned expressions of concern, but also some attacks on Duke's decision that were astonishing in their virulence. Poor baby.

Brodhead adds:

Among the things I found troubling in these messages was the tendency to think of the conference's supporters in this way: You, Duke student, can be thought of as belonging to a group that contains terrorists and terrorist supporters. Therefore, you are indistinguishable from terrorists and deserve as little opportunity to exercise your rights as they do.

One can understand the passion that underlies such a thought, but that does not prevent it from being highly dangerous. This is the disindividuating, dehumanizing logic of prejudice. It says, I already know you because I know your type—more truthfully, your stereotype.

Brodhead then goes on to analogize the anti-Semitic rantings of the Duke student to the slightly (but only slightly) overdrawn conclusion that individuals who belong to a group that they know "contains terrorists and terrorist supporters," and give support to that group, are morally culpable for terrorism. Because you see, anti-Semitic stereotypes regarding Jews, and "stereotyping" those who belong to pro-terrorist organizations as being, well, pro-terrorist, are exactly the same thing, because they are both based on "the dehumanizing logic of prejudice." The sorry state of intellectual discourse at Duke obviously starts at the top.

Neal Stephenson:

(1) There's an interesting interview with Neal Stephenson on Slashdot.

(2) I recently finished reading his The System of the World and much liked it. The three books -- Quicksilver, The Confusion, and The System of the World -- are not as good as Cryptonomicon (at least on first reading). But I liked them a lot, and even Quicksilver, which I liked least of the three (though I still enjoyed it), is better in retrospect, now that I've read the other two. I'm looking forward to rereading all three in a few years.

(3) Reading the interview reminded me of one thing (though far from the most important thing) that I like about the triology and about Cryptonomicon: They aren't just engaging books about ideas, but their core topics are chiefly how science affects society, commerce, war, and politics, and vice versa. As it happens, I'm a math-computer science undergraduate major and computer programmer who went into law and public policy commentary; one of the topics I write about is law and technology. Many readers of this blog -- and many of my friends who have enjoyed Cryptonomicon -- are lawyers with a technological bent, and many others are technologists who are interested in law or public policy.

It's no surprise, I think, that "my kind of people," the tribe I belong to, would find the books so engaging. And this is especially because such books -- books that not only are well-written and have well-crafted characters and plots, but which also discuss these themes, themes that are as central to modern human existence as are love, grief, and the other overwritten topics -- are so rare.

And Where was John?

In all the extraordinary hubbub surrounding the well-deserved defeat -- nay, the humiliation -- of the Yankees last night in the Bronx, I'm surprised that there hasn't been much talk about why we didn't see Kerry at any of the games. He's the junior senator from Massachusetts; he's got a bona fide reason to snap his fingers, get the front row seats, put on his sox cap and jacket, and root like an ordinary human being. What, he doesn't want the national TV exposure?? Was he worried about alienating Yankee fans? I guess one shouldn't make too much of what is "just a ballgame," but really: to his constituents, this is the most important thing going on at the moment; he's lived and worked in Massachusetts all his life; is he the only person in that category who wouldn't take free tickets to see these games? I honestly don't get it, and it does make me wonder about the guy. I know he's off rallying the faithful somewhere -- but if Kerry thinks (or his advisors think) that rallies in swing states, at which he outlines yet again his plans for social security reform or health care or whatever, win over more voters than having half of the country seeing him doing something that everyone can identify with -- i.e. rooting for the home team, engaged in an epic battle for its very soul -- I think they're very, very wrong.

New record, I think:

We had 35,000 unique visits yesterday according to eXTREMe Tracking, and 45,000 according to SiteMeter. Many thanks to InstaPundit for the link that brought the great majority (and of course for the Supreme Court nomination . . .).

Anti-semitism in the 1930s.-- David Bernstein asks in passing about politics and anti-semitism in the US in the 1930s. I just analyzed some 1938 Gallup data that are among the more than 100 databases that I have on my laptop.

A spring 1938 Gallup Poll asked: "Do you think the persecution of Jews in Europe has been their own fault?
FDR voters: 12.1% entirely; 51.9% partly; and 36.0% not at all.
Landon voters: 9.7% entirely; 57.5% partly; and 32.8% not at all.

Dem voters for Congress: 11.5% entirely; 52.1% partly; and 36.4% not at all.
Repub voters for Congress: 9.7% entirely; 56.8% partly; and 33.5% not at all.
The poll also asked: "Would you support" "a widespread campaign against the Jews in this country"?
FDR voters: 13.0% yes.
Landon voters: 9.5% yes.

Dem voters for Congress: 14.7% yes.
Repub voters for Congress: 9.8% yes.
So on blaming the Jews for their persecution, both Republicans and Democrats were similarly highly anti-semitic (no significant differences).

But on favoring a campaign against Jews in the US, Democrats were significantly more anti-semitic.
What's Wrong With This Picture?

Columbia University has an endowment of approximately $4 billion (that's billion). Jewish and Israeli students in the Middle Eastern Studies Department report being harassed and harangued by their professors. Columbia, implicitly acknowledging problems with the department, and having already taken money from an evil Middle Eastern dictatorship for a chair named after the late Egyptian "Palestinian" propagandist and terror advocate Edward Said, decides to add a chair in Israel Studies to the department. But not yet. First the university has to raise money for the chair. Ahem. I can't speak to whether the Israel Studies chair is an appropriate step or not (don't know enough about why this is perceived as a good solution, but I'm skeptical that the way to deal with a disfunctional department is to try to add "balance"; why not instead start by punishing professors who, for example, refuse to answer questions from Israeli students?), but I'm pretty confident of this: if Columbia had been faced with serious claims of discriminatory harassment by professors against women or members of other minority groups (including Arabs), and the university establishment felt that a professorship would help resolve the situation, the university would dip into its $4 billion endowment and not wait until it raised additional money to try to rectify the situation. Instead, the university seems to expect that the Jewish community (who else?) will foot the bill for a new Israel Studies fellowship, paying for the privilege of having Columbia's Middle Eastern Studies Department perhaps become slightly more balanced. Kind of like the old days, when czars and other monarchs would tax the Jewish community to pay for their "protection" from the monarchs' own forces. Pathetic.

Lithwick v. Lithwick: Dahlia Lithwick has a new article up at Slate, Supremely Scary: The Sudden Outbreak of Supreme Court Horror Stories, much of which pokes fun at op-ed writers who argue that the outcome of the Presidential election will have a profound impact on the future of the Supreme Court. Lithwick makes the point that while Bush and Kerry would try to appoint very different Justices, there are important reasons not to overstate the influence of the election on the Court. She notes that no one knows how many seats will open up; that confirmation battles would impose serious constraints on any president's choices; and that Justices, once confirmed, can be unpredictable.

  All three are strong points, and I'm glad she made them. If you'll allow me a slightly snarky aside, however, I'm not entirely sure how to reconcile that with what Lithwick herself wrote for the New York Times on August 29th:
  . . . [Y]ou'll be picking the next Supreme Court with your vote come November. We forget that appointing judges may be the single most important thing a president does. . . .
  Trust me, beneath [the Supreme Court Justices'] sunblock, and their duck hats, sit the nine most powerful, secretive public officials in this land. And whether you can name them or not is immaterial. Because after November, that president whose soul you've come to know so well is going to start naming a whole lot of their successors.

Wednesday, October 20, 2004

If You're Going to Sell Your Vote,

it's probably best not to sell it on eBay where everyone can see it. (Hat tip: Drudge)

Ashcroft v. Raich Briefs Now Available On Line: Now you can read the briefs for Respondents in Ashcroft v. Raich. I am very excited about our brief and am looking forward to the oral argument in the Supreme Court on November 29th. We are also supported by some very thoughtful and powerfully argued amicus briefs. The attorneys in the Solicitor General's Office now have their work cut out for them in writing their reply, which is due just 11 days before the oral argument.

Merits Brief for the Respondents [this is the brief I co-authored]

Amici Curiae Brief in Support of Respondents from Constitutional Law Scholars [co-authored by law professors Ernie Young (Texas), Charles Fried (Harvard), David L. Shapir (Harvard), Steven G. Calabresi (Northwestern), Ilya Somin (George Mason), and Douglas Laycock (Texas)]

Amici Curiae Brief in Support of Respondents from the Institute for Justice
[co-authored by Professor Richard Epstein (Chicago)]

Amici Curiae Brief in Support of Respondents from the Cato Institute [co-authored by Professor Doug Kmiec (Pepperdine) who served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).]

Amici Curiae Brief in Support of Respondents from the States of California, Washington, and Maryland [brief by three states who have authorized medical cannabis]

Amici Curiae Brief in Support of Respondents from the States of Alabama, Louisiana, and Mississippi [brief by three states where medical cannabis is still prohibited]

Amici Curiae Brief in Support of Respondents from the Reason Foundation [brief explaining how Californial medical cannabis laws work]

Amici Curiae Brief in Support of Respondents from the Marijuana Policy Project and Rick Doblin, Ph.D [brief describing how the federal government impedes scientific research into the medical benefits of cannabis.]

Amici Curiae Brief in Support of Respondents from Lymphoma Foundation of America; HIV Medicine Association of the Infectious Diseases Society of America; American Medical Students Association; Dr. Barbara Roberts; and Irvin Rosenfeld

Amici Curiae Brief in Support of Respondents from the Leukemia and Lymphoma Society; Pain Relief Network; California Medical Association; AIDS Action Council; Compassion in Dying Federation; End-of-Life Choices; National Women's Health Network; Global Lawyers and Physicians; and AUTONOMY, Inc.

Amici Curiae Brief in Support of Respondents from the California Nurses Association and DKT Liberty Project

Amici Curiae Brief in Support of Respondents from the National Organization for the Reform of Marijuana Laws (NORML); The NORML Foundation; the National Association of Criminal Defense Lawyers; Washington Association of Criminal Defense Lawyers; and Oregon Criminal Defense Lawyers Association

Previous briefs by and for the government can be found here.
"Enemies" and declarations of war:

Some people replied to the post below on section 3 of the Fourteenth Amendment by asking whether the nation can have "Enemies" for section 3 purposes without a declaration of war.

Well, the Civil War itself, to which section 3 clearly applies, was not a declared war. That suggests that "Enemies" include actual enemies with whom we are in a state of war (which included the Confederacy and North Vietnam) regardless of whether there has been a formal declaration of war. What's more, as I've argued often before, U.S. law generally does not distinguish between declared wars and undeclared wars. The question is whether we are in an armed conflict with an entity, not whether there has been a Congressional declaration of war.

Related Posts (on one page):

  1. "Enemies" and declarations of war:
  2. Kerry and 14th Amendment, section 3:
Healy on Marriage:

Kieran Healy has an interesting non-snarky post on what the data on May-December marriages tell us, with an interesting comments section beneath it. Kieran doesn't point out, but I will, that the data confirm support my original observation: that the common wisdom that men are more likely than women to prefer younger mates and to put a high premium on looks, and that women are more likely to prefer mates with good financial prospects, is no mere stereotype. Kieran does discuss an issue beyond the scope of my original post--whether these preferences are a matter of nature or nurture.

Kerry and 14th Amendment, section 3:

Is John Kerry disqualified from being President by section 3 of the 14th Amendment? Several readers — starting with Pierce Wetter, with whom I've corresponded on the subject, and who has just blogged about it, referring partly to our correspondence — have e-mailed me to ask this question, and I noticed more chatter about it on the Web. And the question turns out to be more interesting than it at first seems (though I think the answer ends up being pretty clear).

Here's what section 3 says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an "office" (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

1. The bottom line: I think this argument is unsound, because section 3 can't possibly apply to all people whose actions end up helping the enemy. During the Civil War itself, for instance, which prompted section 3, many government officials spoke out in favor of the North's agreeing to peace on terms that are favorable to the South. That too would have aided the South — quite possibly much more than Kerry's statements, if the speaker was a prominent Northern politician. But I'm fairly certain that section 3 wasn't understood as disqualifying them; "aid or comfort" must have been understood to mean actions intended to help the enemy that actually gave it aid, and not simply actions that had the effect of helping the enemy but that were motivated solely by a sincere desire to help the United States save lives or prevent the United States from acting immorally, rather than by a desire to help the enemy win.

That is certainly the way that modern treason law operates: As I explained here, quoting the Supreme Court, "[A] citizen may take actions, which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." And this is true even if the actor knew his actions would help the enemy: The test is purpose, not knowledge of likely (or even certain) effects.

Now some might argue that Kerry's actions might have been more reprehensible than the actions of the Northern politician I describe above. Perhaps they were too intemperate, or perhaps his statements were inaccurate, or whatever else. (I haven't followed the exact factual allegations closely enough to make a definitive judgment, but for these purposes I don't need to.)

But for the purposes of the Treason Clause, and I suspect of section 3, the test isn't simply whether the actions help the enemy, or help the enemy through improper means, or help the enemy through improper means with the knowledge that they will help the enemy. If Kerry's purpose was not to help the North Vietnamese, but to help the United States or to help maintain U.S. compliance with its own laws and policies related to military conduct, then he's not covered. And I have no reason to think that Kerry's purpose was indeed anything other than to help the United States, whether or not his actions in pursuit of that purpose may have been misguided or excessive.

So that's my bottom line, and I want to stress it up front: Section 3 should not be read as disqualifying Kerry. That's the only sensible way of interpreting the provision, and I think the only way of interpreting it that's faithful to its likely original meaning.

But it turns out that under a purely textual analysis, the matter is a lot more complex. The section 3 argument against Kerry is, for the reasons, I gave above, a loser, but it's far from the harebrained theory that it might at first appear to be. And analyzing the text closely provides a fascinating example of the troubles we run into when analyzing constitutional provisions that were, after all, written many decades ago, by drafters who had experience with different situations than we do now.

2. Omission of "adhering to their Enemies": Let's start with the textual objection to the point I made above: First, "aid or comfort" literally means any aid or comfort, intentional or not. But good textualism doesn't just look at the literal English meaning of an isolated phrase; it also looks to the legal meaning of the phrase, and to other provisions of the Constitution. And the closest provision to this one in the Constitution is the Treason Clause itself, which defines treason to cover "only . . . levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." I don't think the "and" / "or" difference is that relevant here. But note that section 3 does not include the "adhering to their Enemies" language.

And the Supreme Court's treason precedents that stress that treason includes only intentional aid rely on the "adhering to their Enemies" language as the source of the intent requirement. (See, for instance, the Court decision I quote three paragraphs above.) In the Court's mostly 20th-century understanding, "aid and comfort" means help to the enemy, and "adhering to their Enemies" qualifies this to require intent to help the enemy.

So if one reads the text of section 3 literally, perhaps "aid or comfort" would mean all actions that help the enemy, even if the actor doesn't "adher[e] to [the] Enem[y]" by intending to help the enemy. I suspect this is not how the section was understood by those who ratified; I suspect they understood it as tracking the Treason Clause. But literally, it might indeed cover Kerry's actions.

3. Speech as aid or comfort: It's also pretty clear that speech can be treated by the law as providing aid or comfort. Decisions by Congress shortly before section 3 was enacted, under a loyalty oath regime that as I understand it section 3 was meant to clearly validate, took the view that publishing a pro-rebellion newspaper or letters qualified as aid or comfort, see Christy and Wimpy, Rowell's Digest of Contested Election Cases 725 (1901); Smith v. Brown, id. at 220; Switzler v. Anderson, id. at 219-20. (I have not had the time to check the original reports, in volume 2 of the Bartlett compilation, which Rowell's purports to condense.)

Modern treason law takes the same view: For instance, spreading Axis propaganda was found to be treason (see here). The main barrier to applying the section to antiwar speech lies in the intent requirement; but antiwar speech whose purpose was to help rebels would, I think, be disqualifying under section 3. (Whether the First Amendment would be a barrier to that is a difficult question that turns both on the scope of First Amendment rights for speech whose purpose is to aid the enemy, and on complex questions related to repeals by implication; I will set them aside here.)

4. Application beyond the Civil War: But wait, you may ask: Obviously this provision was just meant to deal with rebels during the Civil War. Isn't it a dead letter?

I don't think so. The provision was enacted because of the Civil War, but its language is broad enough to cover other wars. The drafters could have chosen more focused language, but they didn't. As the Court held in Perry v. United States (1935), when dealing with section 4 of the Fourteenth Amendment, which confirmed the federal government's obligations to pay the federal debt, "While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation." Likewise with the language here; it clearly applies at least to all domestic rebellions.

5. Helping foreign enemies: Does section 3 even apply to people who help foreign enemies, rather than domestic ones? The answer to this might seem to obviously be yes, but note that the language is "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The first half specifically doesn't cover people who fight in a foreign war against the U.S. (unlike the Treason Clause, which covers all enemies).

One can argue that the second half should be read as referring back to the first half, and thus covering only people who gave aid or comfort to enemies who were themselves engaging in insurrection or rebellion. And if that's so, then none of this could possibly apply to Kerry. (I set aside claims that he was present at some meeting of Vietnam Veterans Against the War at which there was talk of assassination. Even if he was present, a matter that is disputed, I think mere talk of assassination isn't enough to qualify as insurrection or rebellion, and mere presence at mere talk is likewise not enough to qualify as aid or comfort to insurrection or rebellion.)

I think that on balance the provision should be read as covering aid and comfort to all enemies who are fighting the U.S., whether they're fighting it overseas or whether they're rebelling against it here. "Enemies" is broad enough to cover both, and it's hard to see why the provision would have been understood, when enacted, as treating those who help enemy foreign armies better than those who help enemy domestic armies. Yet this isn't obvious: There's a powerful textual argument for treating the second clause ("enemies") as being linked to the first (enemies "engaged in insurrection or rebellion").

6. Congressional removal of disability: I don't think Congress has "remove[d] such disability by a vote of two-thirds of each House." The 1872 Amnesty Act, ch. 193, 17 Stat. 142, provided that:

all political disabilities imposed by the third section of the fourteenth [amendment] . . . are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth [1859-61] and thirty-seventh [1861-63] Congresses, officers in the judicial, military, and navel service of the United States, heads of departments, and foreign ministers of the United States.

An 1898 Act, ch. 389, 30 Stat. 432, provided that:

the disability imposed by section three of the Fourteenth Amendment . . . heretofore incurred is hereby removed.

The second Act clearly applies only to disqualifications for pre-1898 conduct ("heretofore incurred"). The first doesn't limit itself so explicitly, but it stands to reason that "disabilities . . . are hereby removed" likewise refers to disabilities that had already been incurred, rather than disabilities for future misconduct, the nature of which Congress wouldn't have even known.

7. Automatic disqualification? Is disqualification automatic, or does it require some statute to implement it (e.g., a statute that says that everyone who did this-and-such during this-and-such war is hereby stripped of office)? In re Griffin, 11 F. Cas. 7 (C.C. Va. 1869), a lower court case, suggests that disqualification happens only if there's a statute providing for such disqualification. But this is only a lower court case (written by Chief Justice Salmon P. Chase, riding circuit, but not endorsed by the Supreme Court). And it's in any event not clear that its logic would apply to federal Senators and Representatives, as to whose qualifications Congress traditionally acts not through legislation but through direct examination of a candidate's qualifications (see below), or to the President, whose qualifications Congress likewise probably has the power to directly test when counting the electoral votes (see below).

8. Who decides? Who decides whether whether the provision applies — would it be a court, Congress, or someone else? I would assume that it would be Congress, which is the body that is supposed to count the electoral votes; presumably this includes the power to reject votes that are cast for ineligible candidates (whatever the cause of the eligibility). But who knows?

9. The Presidency as different: Finally, one could argue that the Presidency is outside the scope of section 3's purpose. Section 3 was justified by the fear that voters in one state or district might elect candidates who are disloyal to the country as a whole. But when the electorate is national, as it is for the President and the Vice-President, we needn't worry about that: The judgment as to whether the person can be trusted to be loyal to the United States can be safely left in the national electorate's hands. I think this is a good policy argument; but a textualist would quickly reject it, because the text of section 3 covers all "office[s] . . . under the United States," which includes the Presidency, and our guess as to the purpose of section 3 cannot modify that.

* * *

I've gone on at such length partly because of a compulsive and likely unhealthy professional desire to be relatively complete, and partly because exploring these mostly forgotten constitutional provisions reminds us how complex the supposedly simple act of reading a sentence and applying it to the facts can be. I stress again that, for the reasons I gave in item 1, section 3 doesn't and shouldn't bar Kerry's candidacy. But the issue is considerably more complex than one might at first think.

Related Posts (on one page):

  1. "Enemies" and declarations of war:
  2. Kerry and 14th Amendment, section 3:
Martha Stewart update:

The New York Post, citing an unnamed inmate at the Alderson, W.Va., minimum-security prison camp for women, reported that the guru of good living spent some time last week picking crab apples from trees on the camp grounds and used them to cook up sweet jelly.

"The normal person would get punished for that, but the prison guards managed not to see her," the inmate was quoted as saying.

Here is the full story.

Republicans and Jews, Part II: I have received many e-mails purporting to explain why Jews tend to despise Republicans. Most of these emails (and this blog post) instead give plausible reasons why Jews may prefer to vote for Democrats instead of Republicans. What I was referring to, however, is the kind of visceral discussed [update: sic--disgust; that's what I get for using voice recognition software] that, for example, once led a couple that was sitting next to my parents at a post-services reception in a synagogue to leave and walk to another table when my parents mentioned that they are Republicans. The kind of disgust that makes it hard for Republican Jewish young men (who seem to wildly outnumber Republican Jewish young women) to get dates.

I did receive two plausible explanations. The first is that the WASP Republican establishment overlapped significantly with the group of bankers, university officials, insurance executives, elite attorneys, etc., that created a glass ceiling for Jewish success for many decades, and leading to lingering resentment. However, it's not all clear why Jews decided to take the wrath out on Republicans, as such, and not on, say, Episcopalians and Presbyterians, as such. (And I somehow doubt that Harvard officials in the early 1950's, when it still had anti-Jewish quotas, were primarily Republicans. )

My colleague Ilya Somin, suggests that (and here I'm elaborating somewhat on his comments) we know that American Jews have always had left-wing tendencies, inherited in part from Eastern European socialism but, like all other groups, most Jews are and have been rationally ignorant about politics and related social issues. Thus, it is easy for them to imagine against both historical evidence and current data, that anti-Semitism in the United States primarily emanates from Republican constituencies. This rings true to me, because I've had so many Jewish acquaintances tell me how anti-Semitic evangelical Christians are, despite the data to the contrary, while never mentioning the anti-Semitism that emanates from the left wing constituencies with which they have natural ideological sympathy.

One correspondent noted that while evangelicals may be OK with Jews they lack respect are perceived as lacking respect for the Jewish religion, which they see as superceded by Christianity. I will grant this, but note that Jewish hostility to Republicans well predates the Republican love affair with evangelicals. Indeed, Jews hated Republicans when, pre-Reagan, evangelical Christians were a core Democratic constituency. Moreover, pre-Vatican II, the most influential religious group that denied the validity of Judaism was Catholicism, and Catholics were the Democrats' most important northern constituency. This did [update: NOT] prevent Jews from being the Democrats' most reliable northern voters. (Update: I'm no expert, but my understanding is that Vatican II changed Catholic doctrine to acknowledge that the Jewish covenant with God remains valid even after the coming of Jesus, whereas before Vatican II Judaism was seen as an invalid faith superseded by the New Testament. Several other mainstream Protestant groups have also adopted this position, but evangelical groups have not).

UPDATE: Several readers suggest that Jewish disdain for the Republicans may date back to the pre-World War II era, when the leading isolationists were Republicans, and their isolationism was often tinged with anti-Semitism. Moreover, Republicans may not have been more anti-Semitic than Democrats in those days (update: Jim Lindgren points out that in 1938 Republicans in fact were less likely to be extremely anti-Semitic than were Democrats) but those who vocally opposed anti-Semitism were far more likely to be Democrats. And FDR himself took the unprecedented step of appointing many Jews to high-level government positions, a sign that the Democrats and not the Republicans were the Party that first welcomed Jews into the American mainstream.

Another reader notes that American Jews' most significant traditional enemy was right-wing Eastern Europeans, who, in the wake of the Cold War, were largely identified with the Republicans. This reader notes that even today, right-wing Eastern European emigres are well over-represented among anti-Semites in the United States.

Yet another reader suggests that ideology is genetically determined, and that Ashkenazic Jews, who do in fact have many distinct genetic traits (susceptibility to certain diseases, disproportionate representation among those with "perfect pitch," etc.) because of their small numbers of ancestors and isolation from the general European gene pool, may be naturally inclined to be liberals. I'll keep that in mind when I write my long-promised post on why Jews are so liberal, but I think it's a separate issue from why they tend to dislike Republicans.

Meanwhile, this article from the Duke student newspaper (Update: the author is one of Duke's purported best and brightest, a recipient of a four-year, full tuition scholarship; update: and, get this, winner of Duke's annual journalism award)reveals an increasingly prevalent view on the far left: we will only be tolerant of Jews so long as they toe the left-wing line, including on Middle East policy. If they abandon us for the right, we will stir up anti-Semitism, especially among blacks, by pointing out how successful Jews are in the United States (and attributing this success to their ability to claim "white privilege" while also claiming victim status via the "holocaust industry"), by arguing that their claims of victimization are phony or exaggerated (and without victim status, you are held in contempt by the far left), and via claims of dual loyalty to Israel. This sort of blackmail used to be subtle, but with even left-wing Jews generally refusing to join the anti-Iraq War movement because of its anti-Israel and often anti-Semitic subtext, the subtlety is gradually diminishing. (Update: And the fact that a few Jews had the temerity to join the Bush Administration as foreign policy advisors has already unleashed a flood of left-wing anti-Semitism related to the alleged Jewish cabal that led America to war with Iraq and wants to do the same with Iran.) The good news is that this sort of thing is likely to push Jews away from the far left (as has already happened in much of the rest of the world), and without a substantial Jewish intellectual and financial presence in the next generation, the American far left, which has long had a very substantial Jewish presence, will have lost much of its power.

Lindgren on Superstitions About Conservatives:

My colleague Stephen Bainbridge liveblogged our own Jim Lindgren's talk on "Chasing Cherished Superstitions About Conservatives." Go to Bainbridge's post for more.

More on Slate, movie stars, and left-wing dictators: Friday, I criticized this statement in a Slate review of Trey Parker's and Matt Stone's Team America: World Police:

Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.
I asked the following question:
Jane Fonda worked quite a bit in the aftermath of the Vietnam war, when you'd think her sympathies with the North Vietnamese would have hurt her most, and then during the Reagan Administration. She then apparently did nothing until the forthcoming Monster-in-Law — including through the Clinton era. Is it really that plausible that Fonda's not working in the 1990s, while having worked through the 1970s and 1980s, stems from her pro-North Vietnam activities?
Yesterday, Slate's reviewer replied:
It was a time-warp reaction. Fonda dropped out of acting for awhile in the '80s and made a great return with The Morning After, in which she played a blackout drunk. But the culture under Reagan had changed. Vietnam vets, once culturally ostracized, had become deservedly more sympathetic in the eyes of the media, and everything countercultural was now unhip—or worse. I was staying near Waterbury, Conn., when Fonda was filming Stanley and Iris there in the late '80s. I read that the vets were picketing the production and surrounding the set with signs that read, "Get out Hanoi Jane!" I drove over to see for myself and, yeah, it was pretty ugly. There were signs all over town and trucks honking and people shouting. ... Fonda reportedly tried to meet with the vets and came away devastated; and after the movie (a humanist stinker in which she taught Robert DeNiro to read) flopped, she decided to drop out of show business. (She didn't need the money—she was married to a billionaire.) A blacklist? No. But a big fat delayed-reaction shaming.
Hmm. It's an interesting theory, but I wonder how much sense it makes. Say that Jane Fonda "reportedly" is devastated by the criticism from Vietnam vets — even though she surely must have heard plenty about such criticism in the 1970s, and wasn't troubled. So as a result, she "decide[s] to drop out of show business." (The reviewer is indeed suggesting a causal connection, since that was his original claim: "Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.") Why? I can see why being devastated at the hostility that one's past activism has caused might make one cautious about activism. Jane Fonda did indeed become somewhat less politically vocal in the 1990s, though she continued to do various publicly visible charitable work. Early this decade, she was also involved in protests against the Israeli occupation of the West Bank and Gaza. So she hasn't lost even her taste for activism. But why would harsh criticism by veterans lead one to quit show business? It seems to me somewhat more likely that she'd quit because she married Ted Turner, or moved to Atlanta, or felt she was getting too old for the roles she preferred, or just got bored with something that she'd been doing for decades. I find it hard to see how there's any causal relationship between her not working in show biz and "learn[ing] from Vietnam not to cozy up to dictators." I also asked these questions: "Have leftist actors not been cozying up to Fidel Castro? Or is he not a dictator?" Here's the reviewer's response to what seem to have been similar questions from other correspondents:
Oh, it's so fun to get letters from angry right-wingers: They're so cute when they preach at me that politics don't belong in movie reviews (because, of course, movies have absolutely nothing to do with the real world and do absolutely nothing to shape peoples' attitudes about anything). And I love it when they twitter about a couple of left-wing Hollywood types consorting with that syphilitic blowhard homophobic human-rights abuser Fidel Castro (because, of course, Republicans have never had anything to do with human-rights-abusing authoritarian regimes, ever).
But this is entirely unresponsive, it seems to me. The reviewer's claim was that "Leftist actors learned from Vietnam not to cozy up to dictators." His correspondents point out that leftist actors do cozy up to Castro. The reviewer's response: Some Republicans (probably not actors) have cozied up to other dictators. Huh? How does this support his original claim, or rebut his critics' arguments? So it seems to me that the reviewer erred in his original claim. People called him on it (some perhaps in intemperate ways, others not, but they were right and he was mistaken). And instead of admitting the error, he starts his column with snideness and condescension, and proceeds to change the subject. Not Slate's finest hour, it seems to me.

Tuesday, October 19, 2004

Al Qaeda's Next Move: Let's assume that Al Qaeda is planning attacks in the United States in the next few weeks to coincide with the U.S. election and the holy month of Ramadan. We all hope that is not true, of course, but let's assume, somewhat morbidly, that it is. What kind of attacks might be planned?

  I don't have any particular expertise in this area, but given its importance I thought I would offer some amateurish speculation. First, I think it's somewhat less likely than it used to be that Al Qaeda would try attacks focused on killing lots of people or destroying symbolic targets. The U.S. response to 9/11 taught that the U.S. isn't going to back off its policies in response to that sort of attack. Violence perceived as a general "attack on America" boosts morale among those who hate the U.S., but it only stiffens U.S. resolve.

  I think the more likely Al Qaeda move would be to try to destabilize the U.S. political system. A weakened United States government might mean a government less likely to pressure Iran, more likely to withdraw from Iraq, and less able to help Israel. I don't think Al Qaeda leaders care very much whether Bush or Kerry wins; to Al Qaeda, Bush and Kerry probably look pretty similar. The more likely goal would be to get in the way of the government's functioning regardless of which party it helps in the short term.

  What would this mean? One possibility would be attacks (or at least Al Qaeda statements announcing the possibility of attacks) on voting locations on Nov. 2. Fears of attacks at polling places in the U.S. might discourage people from voting; low and uneven turnout could foster a sense that whoever is declared the winner was "Al Qaeda's candidate" rather than the legitimate winner. Assassination attempts on key politicians and other efforts to target the government (cf. this story) might also be undertaken to try to destabilize the government in other ways.

  Of course, this is just uninformed speculation. In the meantime, let's hope and pray for a safe and quiet election season.
Adviser vs. advisor:

Both are perfectly valid, but I wanted to use the more common one, since I have no personal preference. A google smackdown helps out: Advisor wins, by about a factor of four. I love modern linguistic research tools . . . .

AntitrustProf Blog: Please join me in welcoming AntitrustProf Blog, hosted by lawprof Shubha Ghosh. (Hat tip: Larry Solum)

  Some day, there will be groups of law professor blogs covering every specialty area. If you want to see the latest ideas coming from the legal academy, you will start by reading blogs, not law reviews. For now, however, every new lawprof blog is something of an event (at least to other lawprof bloggers).
Staffing the Justice Department:

"The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president."

   -- an unnamed former Bush Administration official, explaining why the White House vetoed some of Deputy Attorney General James Comey's staff picks and why Comey himself "has erred too much on the side of neutrality and independence" to be named Attorney General if Bush is reelected. As quoted in Vanessa Blum, "For Next AG, Don't Look to Deputy," Legal Times, October 18, 2004.

Virtual Crime, Virtual Deterrence: A new draft of mine was posted on SSRN today; it is a short symposium essay called Virtual Crime, Virtual Deterrence: A Skeptical View of Self-Help, Architecture, and Civil Liability. (To download it, click on the link and scroll down to the "download" button.) The essay is forthcoming in the inaugural issue of the Journal of Law, Economics & Policy. Here is the abstract:
  This essay offers a skeptical view of recent proposals to deter cybercrime by imposing civil liability on ISPs, permitting self-help, and architecting cyberspace. It contends that these proposals reflect in varying degrees a common conceptual mistake: overreliance on the metaphor of the Internet as a virtual place. The overreliance on virtual metaphors incorporates assumptions valid in the physical world that break down when applied to the Internet.
  To approach computer crime in a realistic way, commentators should focus on the physical reality of how the Internet works. Both virtual and physical perspectives of the Internet can offer important lessons, but any strategy to deter computer crime must look viable given the physical reality of the network. Strategies that rely too heavily on the virtual metaphors of cyberspace are likely to rely on assumptions drawn from the physical world that do not apply to the Internet; the process of importing concepts from physical space to the virtual world of cyberspace will introduce errors. Overreliance on virtual metaphors will often misrepresent how online crime occurs and thus how it can be deterred. Where virtual metaphors govern, proposals to deter computer crime through civil liability and social norms will prove less effective in practice than they may first appear in theory.
  The essay begins by exploring the tension within Internet law between modeling the Internet using virtual reality and physical reality, with a special emphasis on what this tension means for developing arguments about deterrence and computer crime. The analysis explains that a physical description of the Internet differs dramatically from a virtual description of Internet applications, and argues that any effective model for deterring computer crime must be rooted in the former rather than the latter. This insight is then applied to three prominent proposals. It begins with offensive self-help, focusing on Michael O'Neill's article Old Crime in New Bottles: Sanctioning Cybercrime; turns next to architecture regulation, focusing on Neal Katyal's essay Digital Architecture as Crime Control; and concludes by studying the myriad proposals in favor of civil liability for third-party computer operators.
The essay builds on an earlier article of mine that addresses how the difference between virtual reality and physical reality defines many disputes in the area of Internet law. The final version of that article is available here.
The Guardian's Letters to Clark County, Ohio.-- When the Guardian Newspaper in the UK lamented that citizens around the world couldn't vote in the US election, Oz blogger Tim Blair suggested that they write letters to voters in swing states.

Without giving Tim Blair credit for the idea, the Guardian has been encouraging just such a letter-writing campaign, distributing the addresses of voters in Clark County, Ohio, a swing county in a swing state. Blair then started an email-writing campaign, writing to Guardian editors. Various aspects of this have been mentioned by Reynolds, and Reynalds, and Schrag, the Scotsman, the AP, and a slew of Ohio papers that require registration.

Today, Mark Steyn discusses one of the more condescending letters from intellectual Brits, a letter from Richard Dawkins, a "professor of the public understanding of science" at Oxford University. Here is an excerpt from Dawkins's letter:
Dear Americans,

Don't be so ashamed of your president: the majority of you didn't vote for him. If Bush is finally elected properly, that will be the time for Americans travelling abroad to simulate a Canadian accent. Please don't let it come to that. Vote against Bin Laden's dream candidate. Vote to send Bush packing.

Before 9/11 gave him his big break - the neo-cons' Pearl Harbor - Bush was written off as an amiable idiot, certain to serve only one term. An idiot he may be, but he is also sly, mendacious and vindictive; and the thuggish ideologues who surround him are dangerous. 9/11 gave America a free gift of goodwill, and it poured in from all around the world. Bush took it as a free gift to the warmongers of his party, a licence to attack an irrelevant country which, however nasty its dictator, had no connection with 9/11. The consequence is that all the worldwide goodwill has vanished. Bush's America is on the way to becoming a pariah state. And Bush's Iraq has become a beacon for terrorists. . . .

Now that all other justifications for the war are known to be lies, the warmongers are thrown back on one, endlessly repeated: the world is a better place without Saddam. No doubt it is. But that's the Tony Martin school of foreign policy [Added by Guardian: Martin was a householder who shot dead a burglar who had broken into his house in 1999]. It's not how civilised countries, who follow the rule of law, behave. The world would be a better place without George Bush, but that doesn't justify an assassination attempt. The proper way to get rid of that smirking gunslinger is to vote him out. . . .
Steyn ends his editorial on the Guardian's campaign by noting:
Linda Rosicka, director of the county's Board of Elections, thinks the rampaging Brits will have little effect. "The American Revolution was fought for a reason," she remarked drily. That's the spirit.
Rosicka's comment reminds me of something that Dan Polsby (now on George Mason's faculty) said on my first day at work at the Northwestern Law School in 1996. Princess Diana was in the building that day and almost everyone was excited to try to catch a glimpse of her. I would have shaken her hand if introduced, but I saw no reason to figure out where she was to get to see or meet her. Polsby was asked by an administrator if he had seen Diana and he replied, "Didn't we fight a war to be rid of these people?" Indeed!

I find it hard to believe that condescending letters from professors of the public understanding of science at Oxford University will carry much weight with Ohio voters, nor will posts from professor-bloggers. The frustration of foreign elites is perhaps understandable. Yet there are a lot better reasons than a letter from the UK to vote for or against George Bush.
Why do we have a vaccine shortage?--

Kevin Drum has a thoughtful post on the vaccine shortage, plausibly speculating that the restrictive FDA process is the likeliest culprit (tip Reynolds). Drum reviews seven possible explanations, noting:

[W]ith two exceptions, all of these explanations apply to every country in the world — but the United States is the only one with a problem. So most of them don't actually explain anything.

That leaves the two exceptions, and only one of them seems to hold water. Explanation #7, liability costs, is certainly something that could be unique to the United States, but liability costs wouldn't drive companies out of the flu vaccine market unless liability insurance were unavailable, and this must not be the case since both Chiron and Aventis presumably have liability insurance. It might be expensive, and therefore drive prices up, but it wouldn't force companies out of the market. (It would — potentially — be a big problem if the price of the vaccine were capped, but while that's the case for some vaccines, flu vaccine is not price capped.)

That leaves explanation #5, [the FDA,] and at first glance it seems the most likely to be the real deal. The FDA has a famously tight regulatory regime, made even tighter in the late 90s, and as a result the United States has only two approved manufacturers of flu vaccine while Britain has half a dozen. (Although, ironically, it's worth noting that a breakdown of the regulatory regime seems to be a more likely explanation for Chiron's immediate problem.) The bottom line is that there are other flu vaccine manufacturers besides Chiron and Aventis, but they don't sell into the U.S. market because the cost of complying with FDA regulations is higher than the narrow profits they could expect to make from selling flu vaccine.

UPDATE: Russell Roberts also points his finger at regulation.

Monday, October 18, 2004

Crack for Votes:

The problem with giving people crack cocaine in exchange for registering voters is that you just can't trust crackheads to follow the rules. Details here.


My series of Wine War posts is now available on line to be downloaded. You can find it here.


In response to my gripe about campaign spam from the Bush-Cheney Campaign, I received confirmation that apparently campaign spam is bipartisan this go-around:

Over the last week, I have: 4 directly from from Kerry Edwards campaign 1 from Terry McAuliffe 1 from Howard Dean 2 from Democratic Party 1 from Al Gore Not to mention two from Move On and its cohorts, and five or six from the local Democratic party. The Move On ones are residue from the impeachment hearings....

Isn't it just wonderful how the Internet has "revolutionized" politics?

Only a few more weeks to go ...

Who will win--Bush or Kerry? --

I have been surprised by the betting consensus at (inconsistent link) and elsewhere that Bush is more likely to win the election. Kaus notes that this belief in a Bush victory, which shows up in opinion polls, might cause people to "go with the winner." I don't understand why both the bettors and the general public believe that Bush will win.

Whether this belief in a Bush victory helps Bush or not, I think it unwarranted. I am aware that there will probably be an unpredictable swing one way or the other that will erase the current situation, such that predictions today are little more than speculations.

Nonetheless, as things stand right now, I would guess that Kerry is more likely to win Ohio than Bush (Kerry slightly leads in 3 of the last 4 polls, though within the margin of error). Further, Kerry leads slightly (within the margin of error) in polls in Pennsylvania, Wisconsin, Minnesota, Iowa, New Hampshire, Maine, and Oregon--and leads probably outside the margin of error in most polls in New Jersey and Michigan. I understand that there may be a very slight move in Bush's favor right now, but I expect that to stop or reverse.

First, as in 2000, I expect a last minute swing toward the Democrats. I think that Bush might lose a couple percent in the last two weeks, whether it is from any late surprise (like Bush's DUI in 2000), or the incredible automated phone calling that occurred last time (which because of the messages tended to help the Democrats), or the latest theme of the week (this week, I think that will be tying Bush to the third rail of politics: social security reform). Further, the conventional wisdom is that undecideds tend to break against the incumbent.

Second, I expect a massive voter turnout from people who want to stop Bush at all costs. There were hints of this in the primary turnouts.

Third, my impression is that the Democrats signed up many more new voters than the Republicans.

On the other side (favoring a Bush win) is any Republican last minute surprise. Second is a phenomenon that KerrySpot noted a few days ago--that particularly in 2002 election, the opinion polls underestimated Republican vote shares, probably because of a slight realignment since 9/11.

The wild card is the action of Al Qaeda. If they step up their attacks in Iraq or pull off a major attack in the US a few days before the election, it is hard to predict what the American public would do. They might turn to Bush because there have been no major attacks in the US in the 3 years since 9/11 (an outcome that I wouldn't have given more than a 5% chance to 3 years ago) and because (rightly or wrongly) Americans trust Bush more than Kerry on the War on Terror. On the other hand, if the attack is in the US and comes from one of the sources that Kerry quite rightly hammered Bush on in the first debate (ship containers or the cargo holds of US planes), then the electorate might turn to Kerry. Further, who knows how emotions can turn people's minds? Perhaps a new horror will make people long for a time when terrorism was just a nuisance and see Kerry as the man who shares their view of the world.

I don't disagree that the election is too close to call. What I do think is that, if the election were held today, it is slightly more likely that Kerry would win than Bush. But then the election will not be held today.

Some bloggers have made their predictions on the outcome, some confident, some highly qualified. Most bloggers that I read have not made predictions.

I'm curious about what other bloggers think about the likely winner (and why). At least by the evening before the election, I hope that people will weigh in with their opinions.

More on Wikipedia (Plus Updates): Eugene's excellent post on Wikipedia below led me to look through Wikipedia for its entries on some topics that I think I know pretty well. My very tentative conclusion, based on a just few sample queries, is that I hope no one relies on Wikipedia for anything very important. Its entries seem to be a strange mix of accurate statements and egregious errors.

  Consider Wikipedia's overview of the Patriot Act:
  This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. (At least two U.S. citizens, Yaser Hamdi and Jose Padilla, have also been designated "enemy combatants" and imprisoned without trial). The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. (For example, State University of New York - Buffalo art professor Steven Kurtz was indicted based on evidence seized during a search for bioterrorism-related materials conducted under the provisions of the PATRIOT Act. Artist Ensared by PATRIOT Act (PDF) ( The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.
  Pardon me for being a stickler, but there is very little in this description that is factually true. The Patriot Act does not provide for indefinite imprisonment of anyone; the detentions of Hamdi and Padilla had nothing to do with the Patriot Act; the Patriot Act has nothing to do with detention without counsel; the Act does not allow intelligence gathering at religious events; the act does not allow surreptitious warrants to be obtained on the Attorney General's approval; and very few of the provisions of the Patriot Act are set to expire in 2005.

  Wikipedia is a cool idea, but I agree with Eugene that it's something judges and lawyers shouldn't rely on very much.

  UDPATE: A few readers write in to ask, "If the entry for the Patriot Act is so bad, why don't you just correct it?" The main reason is that I suspect that as soon as I correct it, someone else will come along and "correct it back."

  If I understand accurately how Wikipedia works — a big "if," I should point out-- my views of what is in the Patriot Act are no more and no less valued by Wikipedia than the views of any other Internet user. Given the widespread misperceptions about what is in the Patriot Act, some one else is likely to come across my corrected entry and think, "What idiot wrote this? This is totally wrong!" They will then erase my entry and re-enter all the mistakes that I corrected. The "genius" of Wikipedia is that no one is there to resolve the disagreement: the loudest voice eventually wins. Unless I am willing to monitor Wikipedia's Patriot Act entry on a regular basis, there isn't much that can be done to correct the errors over the long term.

  If there are any Wikipedia experts out there who have thoughts on this problem, please send them in to orinkerr at

  UPDATE #2: This site suggests that sabotaging Wikipedia entries to advance ideological agendas is not uncommon. That makes sense, I suppose: If you are an activist and you want people to believe in your view of something, why not rewrite the Wikipedia entries on the issues that you care about along the lines of your views?

  UPDATE #3: A reader writes in to note that Wikipedia's Patriot Act entry has already been changed. The paragraph noted above has been deleted, and replaced with the following:
  The law enhances the surveillance capabilities of the government (by increasing its ability to conduct electronic surveillance, tracking finances, and requesting DNA information), takes other measures to arrest international money laundering, reorganizes some priorities in regard to immigration, authorizes rewards for those citizens who help combat terrorism, provides for the appointment of an individual to monitor civil rights abuses.
  If any one else wants to work more on the entry, I would start by rewriting the discussion of what supporters say about the Patriot Act. The current version says that supporters argue that civil liberties abuses are okay. That is just bizarre; in three years of debating the Patriot Act, I don't think I have ever heard any supporter say that. Rather, supporters say that most of the claims about what is in the Patriot Act are simply false, and that the great majority of the Patriot Act was an uncontroversial update to preexisting privacy laws in response to technological change.

  While I'm at it, may I be so bold as to suggest that the Patriot Act is not historically similar to the Reichstag Fire Decree and the Alien and Sedition Acts (currently the #1 and #2 entries in the list of historically similar laws)? Also, most of the "alleged abuses" listed in the Wikipedia entry do not actually involve the Patriot Act.

Related Posts (on one page):

  1. More on Wikipedia (Plus Updates):
  2. Wikipedia cited in court opinions:
Wikipedia cited in court opinions:

The Eleventh Circuit case that struck down mandatory metal detectors for protest attendees (cited by Orin Kerr below) is noteworthy for one reason besides its important and likely controversial holding: It cites Wikipedia, a free online collaborative encyclopedia, for information on the Department of Homeland Security Advisory System. It is one of only two cases I've found that cite Wikipedia, the other being Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004), a Michigan Supreme Court case, which cites Wikipedia for information on positional asphyxia.

Now I much admire the Wikipedia project, and my hat would be off to Larry Sanger and Jimmy Wales, its cofounders, if I wore a hat. The concept of an encyclopedia that is cowritten by lots of people, each of whom has the power to edit any of its pages — with the main screening mechanism being the possibility of correction by others — sounds odd. But it seems to work pretty well; and of course the real question isn't whether the work is perfectly reliable, but (1) how reliable it is compared to the alternatives, (2) whether that's good enough for the particular use you're making of it (e.g., casual attempts to satisfy curiosity rather than decisions where someone's life or even a lot of money is on the line), and (3) whether the work's advantages in thoroughness, currency, convenience, and low cost exceed the possible reliability disadvantages. (Here, by the way, is the Wikipedia response to the arguments that free editing may make the encyclopedia too unreliable.)

Still, I wonder whether it's good for court opinions, which not only resolve disputes between parties but also effectively create law that governs future disputes, to rely on something that at least has the potential to be so easily compromised, whether as part of a deliberate strategy or not. Of course, court opinions can likewise screw up by citing to the many erroneous portions of Michael Bellesiles' work (which some have done); seemingly reputable work by a noted professor or by an established reference-work-producing organization may be mistaken, too. And I suspect the main source of error in court opinions isn't relying on simply mistaken information but rather relying on one source that says one thing when a dozen other more reliable sources that the court hasn't found say the opposite, and more persuasively. Maybe on balance Wikipedia is good enough, especially when the information that the court is drawing from it is likely to be pretty uncontroversial. Nonetheless, it strikes me as something that judges and law clerks should be cautious about using.

Incidentally, a quick search through WESTLAW's BRIEFS database, which contains a subset (but likely a very small subset) of all recent briefs filed in appellate court cases, reveals two briefs where the lawyers likewise cited Wikipedia. On the one hand, that's especially dangerous for a lawyer: If a judge or the judge's clerk knows about Wikipedia's collaborative model, and therefore doubts Wikipedia's reliability, then the citation may (fairly or not) undermine the brief's credibility. And that's especially so if the judge or the clerk looks into it more closely and finds that the Wikipedia article is indeed mistaken.

On the other hand, lawyers, even more than appellate judges, have to work quickly, and often have to cut corners on research. So maybe for some fairly tangential point, a cite to Wikipedia might be seen as the most efficient solution (though subject to the credibility loss concerns that I mention above, which may be present even if the Wikipedia entry proves to be entirely accurate).

Related Posts (on one page):

  1. More on Wikipedia (Plus Updates):
  2. Wikipedia cited in court opinions:
Double Jeopardy and Judicial Verdicts: It's not every day that you read a news story on Federal Rule of Criminal Procedure 29, but here's one from today's Boston Globe. (Hat tip: Howard.) Rule 29 allows a trial judge to find a criminal defendant not guilty as a matter of law; as long as the judge makes clear that she is making the finding based on her view of the evidence, she does not need to state a reason and the decision is unreviewable by courts of appeal under the Double Jeopardy clause even if it is "based upon an egregiously erroneous foundation."Fong Foo v. United States, 369 U.S. 141 (1962).

  As the Globe story suggests, Rule 29 is a pretty controversial rule. Some prosecutors see the unreviewability of Rule 29 acquittals as an invitation for trial judges to get rid of cases that they don't like for reasons that have nothing to do with their merits. On the other hand, defense attorneys generally see Rule 29 as an important safety valve on overzealous prosecutions. It's relatively rare for Rule 29 to make the news, though: because acquittals under the Rule can't be appealed, its workings tend to fly under the radar screen.

  In December, the U.S. Supreme Court will be hearing oral argument in a case that addresses one aspect of the Double Jeopardy limits on Rule 29 and related state rules: if a judge enters a judgment of acquittal under Rule 29 or a related state rule, but then soon after changes her mind, can she reinstate the charges? Or does the Double Jeopardy clause block the judge from reinstating the charges as soon as the Rule 29 acquittal is announced? The case is Smith v. Commonwealth, 03-8661.
Jews and Republicans:

Instapundit points to this very perceptive analysis of John Kerry's policies and attitudes toward Israel by Martin Peretz. But Peretz also begins his piece with this puzzling but accurate statement: "Like many American Jews, I was brought up to believe that if I pulled the Republican lever on the election machine my right hand would wither and, as the Psalmist says, my tongue would cleave to the roof of my mouth." I have never understood why Jews are so hostile to Republicans, as such. It is not as though the Republican Party has exactly led pogroms against the Jews over the years. Indeed, throughout the 20th-century, the most prominent anti-Semites--southern racists like Theodore Bilbo, Catholic fascists like Father Coughlin, and black demagogues like Al Sharpton--were [update: sic, tended to be; I haven't forgotten about Pat Buchanan, among others] Democrats. For that matter, the most anti-Semitic demographic groups, ranging from urban Catholics and rural fundamentalists in the early 20th-century to poorly educated and just plain poor whites, African-Americans, and Latinos today, have, and continue to be among the Democrats' primary constituencies. (The Republicans primary constituency today, evangelicals, are no more anti-Semitic than the population as a whole.). And of course, it was beloved Democrat Franklin Roosevelt who stifled most efforts to rescue Jews from the Shoah. I've often heard Jews say it was the Democrats' commitment to civil rights that made Jews hostile to Republicans. But until 1964, Republican politicians overall were more sympathetic to civil rights legislation than were Democrats, and the period that this was true was also the period during which Jews were most hostile to Republicans (if I'm not mistaken, Reagan and Nixon received higher percentages of the Jewish vote than did Eisenhower, Dewey, or Wilkie; Milton Friedman received much more flak for being a Republican around 1960 than any similarly-situated prominent Jewish intellectual would receive today; Peretz grew up in an era when the racist South was still a dominant force in the Democratic Party). Conclusion: The reflexive antipathy of Jews to Republicans per se (as opposed to specific policies pursued by Republicans) has been, and continues to be, irrational.

John Fund's sobering warning.--

John Fund has a sobering warning about election problems, particularly those related to provisional ballots:

It's a safe bet you will hear more about provisional ballots before Election Day--and a lot more if the election goes into overtime again. The provisional ballot could become this year's equivalent of Florida's infamous punch-card ballot, and it could decide who wins the presidency.

This is the first election held under the Help America Vote Act of 2002. One of its key provisions is a requirement that people in all 50 states whose names aren't on voter registration rolls be given a provisional, or conditional, ballot that will then be cross-checked with public records after the polls close to see if it is valid. "If I had to pick the one thing that will stir up anger and lawsuits on Election Day, it will be provisional voting," says Doug Chapin, executive director of the nonpartisan

UPDATE: At Slate, election law expert Rick Hasen goes through 5 nightmare scenarios of what might go wrong, though he sees the chances of a disaster as small:

The chances of post-election litigation affecting the outcome of this election are in fact small—probably well under 10 percent. It is not that Election Day problems are unlikely—I think they are guaranteed—but they would have to occur in a place where the resolution of the problem could affect the outcome of the election. Think battleground states like Florida, Ohio, Pennsylvania, or Colorado. We should hardly find that statistic comforting: Even a small probability of a big disaster is worth concern. Here I consider five nightmare scenarios for how the election could remain in doubt after Nov. 2 and how all of them raise the possibility of court intervention. Ironically, the Florida debacle and our reactions to it have increased, not decreased, the chances of a post-election problem.

"Biggest Iraqi City" Outside Iraq:

This article from the Guardian contains what (I think is) a whopper: that "Detroit is the largest Iraqi City outside of Iraq." I couldn't find exact statistics, but I am fairly certain that Ramat Gan, Israel (where my Iraqi-Jewish wife is from) has many more Iraqis than does Detroit. The vast majority of the 100,000 plus Jews expelled from Iraq between 1949 and 1951 settled in Ramat Gan (a suburb of Tel Aviv), and the town is still sufficiently Iraqi that when I tell Israelis that my wife is Iraqi they ask, "so, she's from Ramat Gan?" The Jews of Iraq had substantial wealth, were well-integrated in Iraqi society before their expulsion, and their presence in Iraq dated back 2,500 years, when "Iraq" was still "Babylonia," giving the Jews a stronger claim to Iraqi identity than the Arab "newcomers."

(UPDATE: This link, sent by a reader, states that the entire Detroit area contains approximately 60,000 Iraqis, clearly far fewer Iraqis than are present in the Tel Aviv metropolitan area).

I mention this because of the consistent blindness of the news media and punditocracy, especially left-wing sources like the Guardian, to the fact that Israel's War of Independence created two groups of refugees, one Jewish, one Arab, of approximately the same size. The Jewish refugees were forced out by their governments in many Arab countries simply because they were Jews, and this was a politically expedient response to local anger about the establishment of Israel. The Arab refugees were forced out, orin many cases fled voluntarily, because their community was engaged in a war of annihilation against the emerging Jewish state. The Middle Eastern Jewish refugees were resettled by an Israel dominated by Ashkenazim, who had a different linguistic and cultural background, at great economic sacrifice to both the Ashkenazim and the Middle Eastern Jews, who were almost as numerous as the Jews already in Israel. The Arab refugees, who mostly fled only a few miles and were linguistically and culturally largely indistinguishable from their Arab neighbors, were herded by Syria, Jordan, Lebanon and Egypt into refugee camps, and forced to remain there to serve as political tools to use against Israel. The Jewish refugees received a bit of charity from the world Jewish community, and were otherwise left to their own devices (my wife's late mother went from living in a mansion in Iraq to living in a tent for several years in Israel). The Arab refugees have been the world's greatest welfare recipients, absorbing more aid per capita than any other population group in the world (funny how the libertarians who claim to be pro-Palestinian only because Israel relies too much on American taxpayer aid never seem to notice that the U.S. is and has been by far the largest contributor to UNRWA; at least with regard to Israel the U.S. is giving money to a friendly government and population!).

The mistreatment of Jews by their Arab homelands continues to reverberate in Israeli politics: Jews of Middle Eastern origin tend to be much more hawkish, and less trusting of Arab intentions, than are Jews of European background.

Next time someone talks about their sympathy with "refugees" from the Arab-Israeli conflict, ask them which refugees they are referring to, Jews or Arabs.

Related Posts (on one page):

  1. Interesting Article on "The Sudden End of Iraqi Jewry":
  2. "Biggest Iraqi City" Outside Iraq:
No, Not That Orin: Here's one to put in the "things you find when for some strange reason you decide to google your first name" file:
  Orin is a nonphysical entity that I connect with through conscious channeling. I experience Orin as a being of great love, wisdom, and compassion. He never tells people what to do or how to live their lives. When asked, Orin will offer suggestions and ideas to assist people in seeing more choices. He has a constant message: that the universe is friendly, that it is unlimited in its abundance, that everything is happening perfectly for our good although we may not always understand why, and that we can choose to grow through joy rather than through struggle. Orin encourages you to accept only the ideas presented in the books and tapes that seem true to the deepest part of your being, and to set aside any that do not.
  Orin tells me he is a Being of Light. He says he is working with us at this time because humanity is going through a major transition and awakening. Orin has lived an earth life and is aware of the many challenges of living on the earth plane. He says that he now "lives" on the soul plane and in even higher realms. One of his purposes is to serve humanity. Part of his service is to offer people a path of spiritual growth and to assist people in reaching their higher self and soul. He tells me he is here to help people find their spiritual power, open their hearts, and create more happiness and peace in their lives. His work is to assist people in transforming their emotions and personalities, so that they can evolve to a higher consciousness during these transformative times.
For more, see here and here.

Some VC readers know about Memeorandum, but in case you don't, you should. The site is a very cool idea: it gathers links to major news stories along with links to blogospheric coverage of those stories collected from a politically diverse set of blogs. Check it out.

Sunday, October 17, 2004

Sex, Voting, and John Kerry.--

I am old enough to remember being at demonstrations and at concerts where people were chanting "Sex, Drugs, and Rock & Roll." The odder thing (in retrospect) is that all three were not generally thought of as simply hedonism, but rather as routes to enlightenment!

Apparently, any new chant would involve sex and voting. The Washington Post (tip Betsy's Page) has a fascinating article on the movement to encourage voting for Kerry by being cool, and sometimes, apparently, using sex:

"On election night," Julie Binder says. "You wanna get laid on election night?"

"Oh, I've heard of you guys," says Brian Lin, relieved this is not some freaky hooker encounter. "Orgasmo or something, right?"

Actually, Votergasm. A group that wants you to pledge to withhold sex from nonvoters for a week after the election ("Citizen" level), or have sex with a voter ("Patriot"). Make love not war, updated for this giddy, hipster, woke-up-to-politics-yesterday club scene that is the protest left in the 2004 election.

"Is there like a screening process?" Lin asks, because now he wants in. So he follows her into the back room of the bar to the clipboards: ("Pledge-fulfilling sex must be consensual, legal and generous. And safe. And hot.") Behind him wait two guys arguing about Michael Moore and whether "George got his [butt] whupped" at the debate. Def Leppard is on, the beer is free, the beer pong is into its 25th round, and one Columbia frosh is getting some sugar from two seriously hot babes....

When publicist Michelle Collins announces at the bar that is on a mission to "get young people to vote and have sex," it seems to this college crowd like a perfectly natural combination.

"Vote, [expletive] yeah" yells a guy from one table.

His friend adds: "Sex is awesome."

And then everyone resumes feeling righteous and having a good time. Everyone except Holden Caulfield over there in the corner (real name: Casey Amstacher), a pale kid with shaggy black hair. "I'll have sex when I want to have sex," he says. "But sex is not like a motive for me to vote. It's silly to mix up all this sex and oh, we drink beer and we're cool and we vote for John Kerry stuff. I vote because I'm adamant about voting."

Poor Amstacher. That brand of sobriety is so 1995.

What Bills or Laws John Kerry got passed.-- has an entry assessing John Kerry's legislative record (tip LGF):

At the final presidential debate, Bush said Kerry had passed only five bills during his career, and Kerry said he had passed 56. Actually, we found eleven measures authored by Kerry have been signed into law, including a save-the-dolphins law, a law naming a federal building, a law giving a posthumous award to Jackie Robinson last year, and laws declaring "world population awareness weeks" in 1989 and 1991.

Bush counted only measures technically defined as "bills," leaving out four "joint resolutions" that also have the force of law, and he also omitted two laws whose House versions were adopted in a form nearly identical to Senate versions authored by Kerry.

When Kerry said "I've actually passed 56 individual bills that I've personally written" he was counting everything that had passed the Senate, whether or not it cleared the House. He also counts 24 resolutions that have no force of law.

Whatever the precise numbers, the actual bill list is not too impressive:

The Bush campaign's backup lists five bills, which we verified:

  • S.791: Authorizes $53 million over four years to provide grants to woman-owned small businesses. (1999)

  • S.1206: Names a federal building in Waltham, Massachusetts after Frederick C. Murphy, who was killed in action during World War II and awarded (posthumously) the Medal of Honor. (1994)

  • S.1636: A save-the-dolphins measure aiming "to improve the program to reduce the incidental taking of marine mammals during the course of commercial fishing operations." (1994)

  • S.1563: Funding the National Sea Grant College Program, which supports university-based research, public education, and other projects "to promote better understanding, conservation and use of America's coastal resources." (1991)

  • S.423: Granting a visa and admission to the U.S. as a permanent resident to Kil Joon Yu Callahan. (1987)

The Bush campaign left out two bills authored by Kerry which passed the Senate and later became law in a slightly different form approved by the House, under the same titles and mostly same substance. (This occurs when House and Senate versions differ so slightly that one house adopts the other's version rather than go to the trouble of a House-Senate conference to work out a compromise.) The citations were provided by the Kerry campaign, and we verified them:

  • H.R.1900 (S.300): Awarded a congressional gold medal to Jackie Robinson (posthumously), and called for a national day of recognition. (2003)

  • H.R.1860 (S.856): Increased the maximum research grants for small businesses from $500,000 to $750,000 under the Small Business Technology Transfer Program. (2001)

In a related article in January we quoted an Associated Press article that turned up only eight laws that bear Kerry's name. The AP's count omits these two House measures which technically don't bear Kerry's name and a private law (S.423) granting a visa and permanent residency to Kil Joon Yu Callahan that we are including in our count of 11.

We've also included — as did The AP — four "joint resolutions" that are not technically "bills" but which have the same force when passed by both houses and are signed into law by the president. All four created national events:

  • S.J.Res.158: To make the week of Oct. 22 - Oct. 28, 1989 "World Population Awareness Week." (1989)

  • S.J.Res.160: To renew "World Population Awareness Week" for 1991. (1991)

  • S.J.Res.318: To make Nov. 13, 1992 "Vietnam Veterans Memorial 10th Anniversary Day." (1992)

  • S.J.Res.337: To make Sept. 18, 1992 "National POW/MIA Recognition Day." (1992)

Interesting list.

Ever Hear of "Revealed Preferences?"

An article in my alma mater's (Brandeis University) newspaper, The Justice explains that two Brandeis Women's Studies professors argue that (surprise!) what most of us think of as gender (or, some would say, "sex") differences are actually mere stereotypes. Maybe it's unfair for me to comment without reading the professors' entire book, not to mention the numerous studies on which they claim to rely. But I was struck by this: "Barnett said their findings revealed that men and women value kindness, understanding and intelligence other [sic? rather?] than financial prospects. She said this counters stereotypes that men prefer young females who are good looking and women prefer men with good financial prospects." I know people are likely to say they prefer kindess, etc. to looks (for men) and financial success (for women), but (1) surely there is no contradiction between wanting a kind, understanding, and intelligent mate and wanting that mate to also be either "good looking" or "financially sucess[ful]"--factors which may become less important once you get to know someone but may strongly influence who one is willing to date to begin with; and (2) I do wonder whether the authers considered the revealed preferences that seem blatantly obvious to those of us who merely observe human behavior (and maybe even look at the statistics, e.g., on which sex the Mays and Decembers tend to be in May-December relationships).

As an important aside, Professor Shulamit Reinharz, director of Brandeis's Women's Studies Center (and wife of university president Jehuda Reinharz) told the reporter that "Brandeis stands for excellence and social justice. [Gender equality] is a question of social justice." Brandeis "stands for social justce"???? Maybe I'm a little old-fashioned, but aren't universities supposed to stand for the pursuit of truth, "even unto its innermost parts" (Brandeis's motto). What if the truth conflicts with Professor Reinharz's notions of "social justice?" Will a faculty member who pursues such truth get hired to teach Women's Studies? Will a student who pursues such truth get a good grade? I recently received some alumni communications that also stressed Brandeis as an institution committed to "social justice." I had attributed this slogan to an overzealous (and overly ideological) alumni office employee, but apparently this is a meme being encouraged at the highest levels of Brandeis. Brandeis has always been a lefty place, but it never in my experience (I graduated in 1988) had the chutzpah to suggest as official policy that only politically correct views are acceptable, or that the encouragement of left-wing activism, rather than scholarship, was the school's mission.

UPDATE: Ted Frank of sends me this link to Brandeis' mission statement, which is about as I remember it and says nothing about "social justice" (which, I should point out, is something conservatives may believe in, despite Hayek's claim that there is no such thing, but which in practical terms is a code phrase for the left-wing political goals). However, the powers-that-be at Brandeis apparently think that this mission statement is no longer sufficient, and the web page with the mission statement is headlined by a quote in VERY LARGE letters from President Reinharz stating: "Brandeis has a clear and unambiguous identity that rests on four solid pillars: dedication to academic excellence, non sectarianism, a commitment to social action, and continuous sponsorship by the Jewish community." Nothing about the pursuit of truth, much less to its innermost parts. How sad. (Update: Contrary to an email I just received, the statement by President Reinharz is quite clearly from his inaugural address, and is not a part of the mission statement, though the relevant web page seems to have been set up to intentially cause precisely that confusion.)

Saddened (or outraged) members of the greater Brandeis community may contact Professor Reinharz [update: I mean, President Reinharz, who seems to be the ultimate guilty party with regard to defining Brandeis's mission as including politics] at jreinhar at sign

Further UPDATE: Kieran Healy shows his commitment to the pursuit of truth by intentionally cutting off a quotation from my post exactly at a point where doing so makes me look bad, implying that I was critiquing an entire book based on one quotation from the authors. It's clear from my entire post, however, that I was critiquing the substance of the quotation itself (that certain readily observable sex/gender differences are mere stereotypes, and the implication that e.g., if men are more likely than women to value youth and beauty that means they don't value anything else) while acknowledging that in their book the authors may make a more subtle point not reflected the quotation. Kieran, how about lowering the volume on the snarkiness and actually commenting on the substance of my post?

Profile of W.:

Ron Suskind offers this very critical analysis of the President's decisionmaking style in today's New York Times Sunday magazine. For some commentary, check out Kevin Drum. If anyone has blogged a good defense of Bush in response to Suskind's story, e-mail me the link at orinkerr at

  UPDATE: Bush supporters respond to the article here and here.

Olson on RFK, Jr.:

Wally Olson reviews Kennedy's Crimes Against Nature. Money quote:"In his media-criticism chapter, he has the nerve to blast the press for its absorption with celebrity culture. Yet this book, like Kennedy's entire career, is nothing if not an artifact of that culture. It would never have been acquired by a major publisher, or sent out in quantity to bookstores or reviewed in this newspaper today, if its author's name were Robert F. Snicklethwaite, Jr."

Arab Conspiracy Theories About Israel:

How deep and irrational is the Arab world's hatred and suspicion of Israel? Consider this. The Jerusalem Post reports that Hafez Hafi, an Israeli Arab man from Lod, a mixed Arab-Jewish neigbhorhood, was killed in the Sinai bombings. The victim's family is well-integrated into Israeli society, owning successful businesses and having many Jewish friends. Who do his sisters blame for the bombings? "'People say it was al-Qaida,' says Muna Hafi, 40, Hafez's sister. 'I don't believe it. I think this was done by Jewish people.'.... Muna's sister Yasmin agrees with her." The theory is that the Israeli government did it to try to encourage tourists to go to Eilat instead of Sinai. The author tries to put a positive spin on all this, noting that Muna ultimately concedes that Muslims "may" have been responsible for the bombings. I take cold comfort in this "concession." If even well-integrated Israeli Arabs are inclined to believe the wildlest conspiracy theories about the Israel government, and are so disinclined to acknowledge Arab and Muslim responsibility for terrorism, one can barely imagine how much worse the situation must be in the rest of the Arab/Muslim world, and how dim the hopes are for peace for Israel, or the rest of us for that matter.

Bush shows slight improvement in recent polls.--

There are hints of a very slight move toward Bush in recent polls. As usual, is a good place to follow trends. At the moment they show recent polls averaging 49.0% for Bush, 45.2% for Kerry among likely voters. This is influenced by the latest Gallup poll, showing 52% for Bush, 44% for Kerry. Given Gallup's wide swings in the last month, it is hard to credit that poll too much.

Although the 3.8% average difference is within the margin of error for one poll, it is probably just outside the margin of error if one were to combine these polls using meta-analytic techniques.

Newspaper endorsements.-- This local TV News site reviews a few newspaper endorsements. Kerry gets the New York Times, Boston Globe, and Minneapolis "Strib". Bush gets the Chicago Tribune, Omaha World Herald, and Rocky Mountain News.

For me, the big surprise in this group is the Chicago Tribune (disclosure: the Tribune is a former client of mine). Although most people nationally still think of the Tribune as a conservative newspaper, its political orientation is much like any other paper. My unsystematic impression is that its news side has been pretty pro-Kerry in the last month (my daughter subscribes but I don't read it much beyond sports). In 2000 the Tribune endorsed Gore (the Chicago Sun-Times endorsed Bush in 2000), so the Chicago Tribune's going for Bush this time is a reversal. [CORRECTION: Kevin Drum from Calpundit (and Washington Monthly) emailed me, pointing out that Lexis/Nexis conflicts with my memory. The Chicago Tribune endorsed Bush in 2000. I apologize for my error.]

Of course, these endorsements of highly salient candidates mean very little to voters, the chief effect being to provide fodder for campaign spots. Indeed, I wonder whether that is part of the explanation for the uncharacteristically extremely worded NY Times criticism of Bush as part of its endorsement of Kerry.
Limited Government and Bush vs. Kerry:

I haven't posted for a while, because I have become increasingly disenchanted with the current administration and have not wanted to start writing angry or petulant posts about how President Bush has betrayed the principles of limited government, but at the same time the election has been at the forefront of my thoughts and is the most important issue we face these days. Anyway, I've decided to post on the issue of the election to highlight a few points that have not (as far as I have seen) received as much attention as they should.

I can understand why social conservatives would support President Bush, but in my view those of us who think of ourselves as libertarians, or economic conservatives and social liberals, or believers in small government, or 19th century liberals, etc. (all of which I'm lumping into the category of "limited-government types") should vote for John Kerry.

1) First, on the issue of this President's policies, many commentators have ably pointed out the myriad ways in which this President has been a disaster for those who believe in limited government. (Two that come to mind are Doug Bandow of the Cato Institute and Robert George, formerly on Newt Gingrich's staff, but there are many more; in fact, Doonesbury ran a series this week of not very funny cartoons containing links to conservatives who are disappointed in Bush.) A few of these commentators have listed Bush's tax cuts as the one bright spot for libertarians/conservatives/limited-government types, but tax cuts without spending cuts (or, as it turns out, with massive spending increases) aren't small government - they're big government combined with borrowing. The government reduces your taxes but takes out a big loan in the name of you and your family. Brad DeLong says we should call this a tax shift rather than a tax cut. He's right, although I would also call it mandated mortgaging.

What about the "starve the beast" hypothesis (i.e., that reductions in taxes will force reductions in spending)? Two big problems: first, as long as we are running up deficits (i.e., until the beast really is starved), then the government is still taking out loans in our name. Second, "starve the beast" is a nice theory, but in reality it has never happened. In fact, William Niskanen of the Cato Institute has shown that decreases in taxes are associated with increases in spending, and vice-versa.

2) "Fine," some libertarian friends have said to me, "I admit that Bush has been bad for limited government, but won't electing Kerry be worse for our interests?" As for the short- and medium-term, the great likelihood is that the answer is no. Unless something truly disastrous happens to the Republican party (e.g., finding out that Osama Bin Laden received money from the RNC), it is going to retain control of the House of Representatives. Indeed, it is very likely that it will gain seats in the House, as it starts from a big presumptive gain resulting from the redistricting in Texas. As for the Senate, it is conceivable that the Democrats could regain control, but just about everything would have to break their way. The bottom line is that Republicans will almost certainly control one chamber, and likely will control both. This means that a President Kerry is going to be dealing with a hostile Congress - and Tom Delay is not going to roll over. In other words, we are likely to get the same sort of gridlock that we had from 1995 to 2000, with no significant new spending and no significant new tax cuts - greater fiscal sanity and a smaller government. Again, this is not just pie in the sky. Niskanen also showed that divided government is associated with lower government spending.

3) But what about the long-term interests of those who want a limited government? Here we come to the most important point that many have overlooked: if limited-government types vote for Bush and he is reelected, then the obvious conclusion for any savvy political strategist is that Republicans can take these voters for granted and thus ignore their interests. The reality of politics is that you are always working at the margins - trying to increase turnout of your base or add swing voters. If I am a political strategist who knows that a group of voters will stick with my candidate no matter what, I'd be foolish to recommend that he respond to their concerns in any way. What's the point of doing that, as a matter of political strategy? If I were Karl Rove (or whomever) and Bush won in 2004, I would tell any future Republican candidate that he can do anything he wants on the size of government, because Bush proved that limited-government types will still vote Republican.

The only way to send a message to future Republican candidates is for Bush to lose in part because of the defection of limited-government types. And, if we don't send that message, I fear that we will be in the political wilderness for a long time.

The bottom line, in my view, is that people who believe in the old Republican credo of limited government had better vote for John Kerry.

Washington Post Looks Into Vanity Fair Story on Bush v. Gore:

Today's Washington Post has a detailed story by Charles Lane looking into the controversy of the OT 2000 Supreme Court law clerks who disclosed details of Bush v. Gore to Vanity Fair. The article includes a few strong hints (and two disclosures) of the identities of some of the former clerks involved.

Harsh Treatment at Guantanamo.--

The NY Times is revisiting Guantanamo Bay and finding harsher treatment of prisoners than the military was claiming:

Many detainees at Guantanamo Bay were regularly subjected to harsh and coercive treatment, several people who worked in the prison said in recent interviews, despite longstanding assertions by military officials that such treatment had not occurred except in some isolated cases.

The people, military guards, intelligence agents and others, described in interviews with The New York Times a range of procedures that included treatment they said was highly abusive occurring over a long period of time, as well as rewards for prisoners who cooperated with interrogators.

One regular procedure that was described by people who worked at Camp Delta, the main prison facility at the naval base in Cuba, was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels, said one military official who witnessed the procedure. The official said that was intended to make the detainees uncomfortable, as they were accustomed to high temperatures both in their native countries and their cells.

Such sessions could last up to 14 hours with breaks, said the official, who described the treatment after being contacted by The Times.

New York Times Endorses John Kerry for President.--

The New York Times has endorsed John Kerry for president. After some perfunctory praise of Kerry, the Times launches into a scathing attack on Bush:

There is no denying that this race is mainly about Mr. Bush's disastrous tenure. Nearly four years ago, after the Supreme Court awarded him the presidency, Mr. Bush came into office amid popular expectation that he would acknowledge his lack of a mandate by sticking close to the center. Instead, he turned the government over to the radical right.

Mr. Bush installed John Ashcroft, a favorite of the far right with a history of insensitivity to civil liberties, as attorney general. He sent the Senate one ideological, activist judicial nominee after another. He moved quickly to implement a far-reaching anti-choice agenda including censorship of government Web sites and a clampdown on embryonic stem cell research. He threw the government's weight against efforts by the University of Michigan to give minority students an edge in admission, as it did for students from rural areas or the offspring of alumni.

When the nation fell into recession, the president remained fixated not on generating jobs but rather on fighting the right wing's war against taxing the wealthy. As a result, money that could have been used to strengthen Social Security evaporated, as did the chance to provide adequate funding for programs the president himself had backed. No Child Left Behind, his signature domestic program, imposed higher standards on local school systems without providing enough money to meet them.

If Mr. Bush had wanted to make a mark on an issue on which Republicans and Democrats have long made common cause, he could have picked the environment. Christie Whitman, the former New Jersey governor chosen to run the Environmental Protection Agency, came from that bipartisan tradition. Yet she left after three years of futile struggle against the ideologues and industry lobbyists Mr. Bush and Vice President Dick Cheney had installed in every other important environmental post. The result has been a systematic weakening of regulatory safeguards across the entire spectrum of environmental issues, from clean air to wilderness protection. . . .

Like the tax cuts, Mr. Bush's obsession with Saddam Hussein seemed closer to zealotry than mere policy. He sold the war to the American people, and to Congress, as an antiterrorist campaign even though Iraq had no known working relationship with Al Qaeda. His most frightening allegation was that Saddam Hussein was close to getting nuclear weapons. It was based on two pieces of evidence. One was a story about attempts to purchase critical materials from Niger, and it was the product of rumor and forgery. The other evidence, the purchase of aluminum tubes that the administration said were meant for a nuclear centrifuge, was concocted by one low-level analyst and had been thoroughly debunked by administration investigators and international vetting. Top members of the administration knew this, but the selling went on anyway. None of the president's chief advisers have ever been held accountable for their misrepresentations to the American people or for their mismanagement of the war that followed.

The international outrage over the American invasion is now joined by a sense of disdain for the incompetence of the effort. Moderate Arab leaders who have attempted to introduce a modicum of democracy are tainted by their connection to an administration that is now radioactive in the Muslim world. Heads of rogue states, including Iran and North Korea, have been taught decisively that the best protection against a pre-emptive American strike is to acquire nuclear weapons themselves.


We have specific fears about what would happen in a second Bush term, particularly regarding the Supreme Court. The record so far gives us plenty of cause for worry. Thanks to Mr. Bush, Jay Bybee, the author of an infamous Justice Department memo justifying the use of torture as an interrogation technique, is now a federal appeals court judge. Another Bush selection, J. Leon Holmes, a federal judge in Arkansas, has written that wives must be subordinate to their husbands and compared abortion rights activists to Nazis. . . .

Saturday, October 16, 2004

Mark Steyn on the canadian health care system.--

Mark Steyn has a column on the Canadian health care system (written for Canadians). He makes a point that I had never thought about before:

When health care is the government's responsibility, it becomes its principal responsibility. Imagine if we [in Canada] had as many high-profile conferences on national security as we do on health. But we don't. Because the minute you make government the provider of health care, you ensure that, come election time, the electorate identifies health as its number one concern. Thus, in a democracy, the very fact of socialized health care seduces government away from its prime responsibility - the defence of the realm. In the Canadian cabinet, the Health portfolio is more prestigious than Defence. Think Donald Rumsfeld would regard it as a promotion if he were moved to Health?

This line of thinking is interesting--that when the government takes over health care, health care becomes the primary concern of government. It also explains one of the odd differences between European and American conservatives. European conservatives tend to be strongly anti-immigration; American conservatives are not. In the General Social Survey, conservatives differ insignificantly from political moderates on favoring more or less immigration. Liberals are slightly but significantly more pro-immigration than either conservatives or moderates.

Once almost everyone in a country accepts that the primary concern of government is providing things that individuals and employers might provide (as may be true in parts of Europe), then opposition to the liberal consensus becomes focused on keeping others (immigrants) from sharing in the country's seeming largesse. In the US, on the other hand, political conservatism is focused, not on immigration, but on the size of government--as well as, of course, moral and social issues.

UPDATE: My comments were not about the current election, but rather about conservatives and their views in the general public. I would strongly recommend Stuart Benjamin's post above, which points out what a disaster on smaller government George Bush has been. While I don't believe that Kerry would be any better on this than Bush, Benjamin offers some genuine reasons (not just speculations) on why Kerry should theoretically be better than Bush on this. I suppose it depends mostly on whether Kerry gets his wishes on health care. Also, one should figure in not just legislation, but the appointments to the courts and the agencies. Which candidate's appointments would favor smaller government? I, for one, like the current slightly left of center orientation of the Supreme Court and the lower courts (eg, abortion, affirmative action, free speech), and would not like to see a significant shift one way or the other.


Is anyone else getting spammed to death by the Bush-Cheney Campaign (or perhaps Kerry-Edwards as appropriate)? I swear every day I open my email I have at least one email from "Mark Racicot" or "Ed Gillespie." Is this their way of trying to get me to contribute more money--by annoying me?

Jon Stewart:

Jon Stewart takes on Tucker Carlson and Paul Begala of CNN's Crossfire here. (Compressed .wmv file; the video is about 13 minutes long.)

Law Student Forces Change in College Application Policy:

A very interesting story from today's New York Times.

Metal Detector at Protest Ruled Unconstitutional: Yesterday, the Eleventh Circuit held that a city police policy requiring everyone attending a November 2002 protest against the "School of the Americas" to pass through a metal detector violated the Fourth and First Amendments.

  The court's opinion is particularly notable for its rebuke of the city's effort to justify use of the metal detector based on 9/11:
  The City's brief begins with the bold declaration that "[l]ocal governments need an opinion that, without question, allows non-discriminatory, low-level magnetometer searches at large gatherings." Appellees' Brief at 13. Citing nothing more than a single case from 1980, the City contends that "[p]ost September 11, 2001, this Court can determine [that] the preventive measure of a magnetometer at large gatherings is constitutional as a matter of law." Id. (citing Donovan v. Dewey, 452 U.S. 594, 606 (1980)).

  This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment's protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.

  Even putting aside the City's ill-advised and groundless reference to September 11, its demand for the unbridled power to perform "magnetometer searches at [all] large gatherings" is untenable. The text of the Fourth Amendment contains no exception for large gatherings of people. . . .
If It Involves Datamining, It Must Be Bad:

Two years ago, public concern over the proposed Total Information Awareness datamining program led Congress to defund the program. At the time, the thinking was that while the private sector and the international community was free to gather, scan, and assess large databases for all sorts of purposes, it was problematic to have the United States government trying to do that here in the United States.

  I'm a bit puzzled, then, by a front page article in the Washington Post announcing with considerable alarm that a new company has formed: Global Information Group, a company that plans on doing data gathering and mining for the private sector out of the Bahamas. The company has hired a former government official, Ben Bell, who used to be the Director of the Transportation Security Administration's Office of National Risk Assessment. According to the Post:

The company plans to do such things as assess foreign job candidates for risk, conduct background checks on cargo ship crews or take stock of people who want to open bank accounts in the United States, documents and interviews show. It also will provide something the company calls "terrorist risk identity assessment," a company document shows.
Why is the new company troublesome? Well, if TIA was problematic because it was a U.S. government program that would operate in the United States, the Post article suggests that the new company is troublesome because it is not a U.S. government program and it would not operate in the United States:
  Legal and privacy specialists said the company raises troubling new questions about the ability of computers — in both the government and private sectors — to collect and analyze personal information for homeland security. These critics said Global's initiative echoes the aims of the troubled government passenger-screening system, as well as another controversial program at the Defense Department that was shut down by Congress called Total Information Awareness.
  An important difference from those programs, these critics said, is that Global operates in private hands, offshore and beyond the oversight that stymied the government programs. "As a business matter, there are layers of legal protections and public relations protections they can get by going offshore," Peter P. Swire, a law professor at Ohio State University and privacy counselor in the Clinton administration. "It might meet business interests, but not necessarily the public interest."
  Charles Lewis, executive director of the Center for Public Integrity, said he worries that Global will become a contractor for government work that government officials could not get backing to do themselves. "He is making a highly controversial program more controversial," Lewis said about Bell. "Now he's doing it offshore and making money off of it."
  UPDATE: This page provides some context. It explains that the author of the Post story, Robert O'Harrow, "has carved out a data privacy beat" and has links to many other stories O'Harrow has written for the Post that raise the same privacy concerns.

Friday, October 15, 2004

Reasons to Love The Corner:

Rick Brookhiser quoting Muddy Waters. (The anti-immigration stuff, on the other hand, I could certainly do without.)

The Long-Delayed Jane Fonda Blacklist:

This statement in a Slate review of Trey Parker's and Matt Stone's Team America: World Police struck me as odd:

[W]hen Alec Baldwin, Sean Penn, Tim Robbins, Susan Sarandon, and Janeane Garofolo moronically align themselves with Kim Jong-il and start wielding automatic weapons against Team America, well . . . Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.

I certainly don't think Alec Baldwin et al. are big fans of Kim Jong-Il, but I suspect that this isn't exactly Parker & Stone's point (hard to tell for sure what their point is until I see the movie, but it's a fair bet that over-the-top comedians' comedy isn't exactly to be interpreted literally). But setting that aside, I have two questions.

(1) Jane Fonda worked quite a bit in the aftermath of the Vietnam war, when you'd think her sympathies with the North Vietnamese would have hurt her most, and then during the Reagan Administration. She then apparently did nothing until the forthcoming Monster-in-Law — including through the Clinton era. Is it really that plausible that Fonda's not working in the 1990s, while having worked through the 1970s and 1980s, stems from her pro-North Vietnam activities?

(2) Have leftist actors not been cozying up to Fidel Castro? Or is he not a dictator?

Thursday, October 14, 2004

Conference on Lochner v. New York: On Friday and Saturday of this week (October 15-16), Boston University School of Law is holding a conference to commemorate the centennial of the landmark Supreme Court case of Lochner v. New York. In Lochner, the Supreme Court held that a state maximum hours laws for bakery workers violated the Due Process Clause of the Fourteenth Amendment because it interfered with the liberty of contract. (The case was decided in 1905, and the law review issue in which the paper are to be published will appear in 2005.) The case later came to be reviled by the Supreme Court and constitutional law professors, though in recent years it has received somewhat more sympathetic treatment by some legal academics.

Very interesting papers will be given by Lynn A. Baker (Texas), Jack M. Balkin (Yale), Barry Cushman (Virginia), Pamela S. Karlan (Stanford), and Keith E. Whittington (Princeton). Commentators include: David E. Bernstein (GMU & the Volokh Conspiracy), William E. Forbath (Texas), Richard Thompson Ford (Stanford), Howard Gillman USC) and Joseph W. Singer (Harvard).

The conference begins with a panel I will moderate on Jack Balkin's paper on Friday at 3:00pm, followed by the other four papers on Saturday. Faculty, law students and other readers of the Volokh Conspiracy are welcome to attend free of charge. Even if you cannot come both days, stop by for whatever you can catch. And identify yourself as a Volokh Conspiracy reader.

Additional details, including the location, schedule and bios of speakers can be found here.
The Alabama Brief: Can a short and factual amicus brief persuade someone that the Constitution permits capital punishment for crimes committed at the age of 16 and 17? If press coverage of the Supreme Court argument in Roper v. Simmons is any indication, this brief is the one to read to find out. It was written by my law school classmate (and former Souter clerk) Kevin Newsom, now the Solicitor General of Alabama.

  At least one blogger is among the converted. In a post titled The Winning Brief, Crime & Federalism explains that the Alabama brief changed his mind:
  Alabama's Solictor General . . . puts forth the most compelling argument for giving juries the ability to sentence young people to death that I have ever seen. . . .
  . . .
  If Justice Kennedy (or Justice O'Connor) finds that the Eighth Amendment does not prohibit executing people for crimes committed while young, I would not only understand him, but I would agree. I changed my mind. And I did so because of one man's writing.
DOJ Report on Prosecuting Intellectual Property Violations:

The Justice Department formed a task force a while back to consider DOJ strategies for prosecuting intellectual property crimes. The 96-page report is now out, available here. The basic recommendation: add more investigative resources and increase the number of prosecutors.

Slippery Slopes in New York:

I'll be giving a talk on Mechanisms of the Slippery Slope this coming Monday, (1) at 12:30 pm at Columbia Law school, 116th & Amsterdam, room 101, and (2) at 3:30 pm at Fordham Law School, 140 W. 62nd St., McNally Amphitheater. Both events are free and I think both are open to the public.

Government suppression of unpopular speech:

The Foundation for Individual Rights in Education, whom I have generally found quite trustworthy, reports what sounds like a glaring threat of a First Amendment violation:

Less than one year after the University of Massachusetts Amherst defended the free speech rights of a columnist who celebrated the death of Army Ranger Pat Tillman, the university has campaigned to persecute nine students who were seen in photographs containing a caricature of one of them as the "Grand Wizard" of the Ku Klux Klan. The drawing, which was intended to mock both the Klan itself and spurious accusations of "racism" made during the course of a student government election campaign, depicted the so-called Grand Wizard with his eyes crossed and his tongue hanging out of his mouth. The mere existence of such a drawing led UMass to charge the nine students with "harassment" and threaten them with penalties ranging from criminal charges to expulsion. . . .

On March 26, 2004, after the elections for the UMass Student Government Association (SGA), several candidates gathered in a student organization office for a post-election party. One student at the party, Patrick Higgins, was defeated in a race for SGA President during which he was labeled a "racist" for opposing a plan to set aside a number of seats in the Student Senate solely for members of a campus group called ALANA. (Eventually the plan was judged unconstitutional by UMass's own general counsel.) ALANA claims to represent "African, Latino/a, Asian/Pacific Islander, and Native American" students at UMass.

In an effort to mock the charges of racism, a person at the party drew a caricature of Higgins as a member of the Ku Klux Klan on a dry-erase board. The "Grand Wizard" was depicted wearing a pointed hat and a cape, and holding a burning cross. With his eyes crossed and his tongue hanging out of his mouth, the "Wizard" had a speech bubble written over his head that read, "I LOVE ALANA!!" See the caricature here. One of the partygoers took photographs of the caricature and posted them on his personal website. An unknown student later circulated the photographs around campus, along with others that appear to show some of the partygoers drinking alcohol. . . .

After controversy erupted, UMass Amherst Vice Chancellor for Student Affairs Michael Gargano told the Daily Collegian campus newspaper, "I have the authority to remove these people from office . . . I could give them 500 hours of community service, have them conduct an open forum discussion; I have a variety of sanctions at my disposal. I'm not ruling out dismissal." Gargano further articulated his threats at a September 27 "diversity panel," stating, "[I]f the Student Government Association doesn't move on it, I will. Are we clear? Resign!"

The same "diversity panel," consisting of Gargano, SGA President Eduardo Bustamante, and several UMass faculty members, labeled the nine students in the photos the "KKK Nine," implying that they supported the Ku Klux Klan. . . . .

UMass has charged all nine students with "harassment conduct less than a physical attack" and other charges related to the consumption of alcohol. During the resulting judicial proceedings, UMass has offered "settlements" that include punishments far more severe than those typically imposed for first-time alcohol offenses.

On October 7, FIRE wrote UMass Amherst Chancellor John V. Lombardi on behalf of the students, pointing out that not only was the drawing irresponsibly mischaracterized [as an experssion of support for the KKK], but that it was also constitutionally protected expression that UMass, as a state institution, was forbidden to punish. FIRE pointed out that "the First Amendment protects even extraordinarily offensive satire and parody," and emphasized that any punishment decisions "must be made without reference to the 'offensive' caricature." Read FIRE's letter to UMass here.

UMass's actions in this case stand in stark contrast to its treatment of Rene Gonzalez, a UMass graduate student who wrote an article for the Daily Collegian last spring that called NFL player turned Army Ranger Pat Tillman an "idiot" and said that "this was a 'G.I. Joe' guy who got what was coming to him." UMass rightly refused to take official action against Gonzalez. Instead, UMass system President Jack Wilson responded, "While I recognize Rene Gonzalez's right of free speech, I must also assert my right of free speech to criticize what he said."

"President Wilson made the right decision once, and we are hopeful that he will do so again in the face of the hysteria surrounding this drawing. We hope that President Wilson and Chancellor Lombardi will demonstrate continued faith in the power of the marketplace of ideas to deal with expression that some might find offensive. Otherwise, UMass will become just one other disappointing example of the many colleges and universities that simply give up on free speech," concluded FIRE's French. . . .

Punishing students for this sort of speech -- whether dismissing them or giving them community service or requiring them to conduct discussions -- is clearly a First Amendment violation. It would be so even if they genuinely expressed support for the KKK, which they weren't doing.

It's a little less clear whether a university could remove student government officials based on their constitutionally protected speech. I doubt it, since the officials aren't university employees, but represent the students; but the matter isn't completely clear. But even if the university has this legal power, surely this is not a sensible situation to use it.

In any case, I think it's appalling that University officials would be threatening students with clearly unconstitutional disciplinary sanctions for their constitutionally protected expression. One might have thought that the last 15 years of campus speech code litigation would have taught public university officials that labeling speech "harassment conduct" (note again the "harassment" rhetoric, apparently borrowed from hostile environment harassment law) can't magically dissolve the constraints imposed by the First Amendment. Apparently one would have thought wrong.

Disney Getting Sued Because of the Copyright Term Extension Act?

Disney, which was apparently a major driving force behind the Copyright Term Extension Act's retroactive extension of preexisting copyrights -- Mickey Mouse was about to fall in the public domain, and now Disney has 20 more years of monopoly over him -- is apparently in some trouble because of that very Act:

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street [hospital for children] was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie . . . . This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" . . . . They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph. . . .

I'm pretty sure that Disney is right: Peter Pan was apparently published from 1902 to 1911 (there were different versions), so even if we use the latest date, 1911, the book fell into the public domain in the U.S. 75 years late, in 1986. (At the time, the term of protection was, more or less, the author's life plus 50 years for works written in 1978 or later, or 75 years for works published before 1978.) The Copyright Term Extension Act didn't revive the copyrights on such works, though it did extend -- inappropriately, in my view -- those copyrights that were still in effect. Unless I'm missing something here, the hospital would have no case.

So Disney should be off the hook, as should others who want to build on Peter Pan. That's good, for the same reason that it's good that we have a rich public domain full of other works (Shakespeare, Swift, Dickens, and so on) that people can reinterpret, adapt, and republish. There would have been some poetic justice in Disney's being stuck with the consequences of its earlier lobbying, especially since Disney, like other authors and employers of authors, has so often taken advantage of a rich public domain in making its work. But at first glance, it looks like Disney's source material in this instance is indeed in the public domain, despite the Term Extension Act.

Poll Consistency:

Jim's report below that the post-debate polls show "different results" is subject to an important caveat: the one poll that did not show Kerry as the winner was this ABC News poll that found the debate a draw only after polling substantially more Republicans than Democrats (38% to 30%, with another 28% being independents). Among independents polled by ABC News, 42% thought Kerry was the winner, and 35% thought Bush was the winner.

  It seems to me that the best way to read the ABC News poll is that Kerry was the slight winner, which seems to match the results in the other polls. ABC News prefers to report that the debate was a draw — with the proviso in fine print that polling a draw in a Republican-dominated polling group "makes the draw more of an accomplishment for Kerry."

Post-Debate Polls Show Different Results.--

The New York Times is reporting that the ABC post-debate poll shows a near tie on who won the debate: Kerry 42% v. Bush 41%.

The Gallup Poll shows a Kerry win: 52% to 39%.

A CBS Poll also shows a Kerry win: 39% to 25%.
The 3d Debate Transcript.--

Here is the transcript of the 3d debate. Bob Schieffer comes off looking like he's from the same shop that gave us the forged Killian memos and the email draft hoax--what a coincidence, he is.

Given Teresa("no blood for oil") Heinz Kerry, the only hard question John Kerry got all night was "I'd like to ask each of you, what is the most important thing you've learned from these strong women?"--and Kerry got to listen to Bush's answer first.

UPDATE: — OK, so Kerry should have answered the question about what he learned from his strong wife in this way (I'm recylcing a joke I heard last spring):

[What KERRY might have said]: I developed my economic plan for the country from interacting with both my wives. Now I just need to find a rich country for the US to marry.