Thursday, October 28, 2004

More on Ohio absentee ballots:

My student Sean Hayes writes:

Just read your post on the absentee ballot in Ohio. I voted yesterday by absentee for Ohio--I'm from Dayton, which is in Montgomery county. The same complaints from Cuyahoga are present on the Montg. County ballot.

Your student is right: the ballots are not confusing. Yes, the numbers don't line up, some candidates are deleted, and in my voter booklet, the senate candidate race wasn't even part of the book, but just a loose sheet of paper.

Overall though, the concept is simple: find your candidate, find their number on the ballot; punch the hole. It blows my mind that people smart enough to complain about the ballot being a violation of their rights are too stupid to figure out what amounts to a voting inspired version of Chuck E. Cheese's Whack-A-Mole Game.

This is nothing more than the press feeding its need to have a story, and "Florida could happen again!" is much more exciting than "Voting Procedures Understood By People of Average Intelligence."

I think well-designed ballots should be understandable even by people of below average intelligence -- there are quite a few voters like that, and one doesn't want them to be confused, either. More to the point, ballots should be understandable by people who are intelligent but who are distracted, or who don't invest much time in following directions closely (especially on matters, such as voting, where there's little tangible personal benefit at stake).

Still, it sounds like the ballots might well not be very confusing even to the distracted or easily confused. I'm happy to trust Sean Hayes' and Patrick Lewis's judgment on this, since they saw the complete ballots from a voter's perspective, and I didn't.

Birdbrains: Talkleft links to this story about thieves who came back to the scene of a crime to silence a talking parrot:
  Fearing a parrot named Marshmallow could identify them, three thieves returned to the scene of the crime to silence the bird -- only to be caught by police.
  After making off with a booty of DVD players, computers, radios, TVs and other electronic gear _ one of the suspects realized a parrot in the home had heard him using the nickname ``J. J.'' and was repeating it.
  ``They were afraid the bird would 'stool' on them,'' police Maj. Billy Garrett said. ``They actually believed he could identify them.''
  They decided to go back for the bird, loading it into the getaway car as police arrived on the scene. The chase ended in just a few blocks, with the men crashing their car.
Slow news day?

One of the items in today's Slate begins:

Bush Speech Bush Speech Popping a spring in Saginaw. By Timothy Noah Posted Thursday, Oct. 28, 2004, at 12:37 PM PT

President Bush gave a speech today in Saginaw, Mich., in which, judging from the White House transcript, he repeated whole paragraphs twice, like a malfunctioning Stepford wife.

The column then goes on to give four examples -- but then, the author continues:

I'm told by a reporter who was there that this was some sort of hiccup in the White House transcription, and that Bush did not actually give lengthy portions of the same speech twice. The repetitions do not appear in the transcript prepared by the Federal News Service, a private company.

What I can't figure out, though, is why the botched White House transcript shows occasional slight differences in the first and second versions of the repeated text. "The issues vary, the challenges are different every day" becomes two (more grammatical) sentences on the second go-round: "The issues vary. The challenges are different every day." The phrase "blow in the wind" becomes "blow in the winds." The line, "A President must follow the—must not follow the path of the latest polls" gets applause the first time, and no applause when it's repeated. The same thing happens with "A President must lead based on conviction and conscience."

This isn't machine error. It's human error. Did a White House transcriber pop a spring?

I'm not sure I quite get it. The column begins by speculating that President Bush is behaving mightly oddly. Yes, it does say "judging from the White House transcript," but certainly my first impression was that the author thinks the transcript was indeed accurate. And otherwise the matter hardly seems terribly newsworthy, no? (Yes, I know that I blog about pickled herring and who knows what else, but Slate for obvious reasons tends to stick to more generally interesting items.)

But then it turns out that the eyewitness account suggests that President Bush wasn't remotely "like a malfunctioning Stepford Wife," but that there was a transcription glitch. I suppose there's some innuendo that perhaps the transcript is accurate, but, boy, this is mightly slim evidence, especially when one has squarely contrary testimony from someone who was actually present (and presumably a trustworthy professional, who probably would have noticed the speaker repeating four separate paragraphs). Where's the news about that?

Of course, if the original Slate piece simply ended after the four quotes, and then the article was updated based on the eyewitness's account, that would explain why the original story seemed newsworthy (Bush is coming undone) but the revised version is not really newsworthy (some transcriber erred) and the second half is inconsistent with the suggestion in the first. But wouldn't it have been nice to make clear (if this is indeed what happened) that the second half was an update to the first, rather than a single story, and perhaps also explicitly take back at the outset the "malfunctioning Stepford Wife" item? Or am I being too picky here?

The Economist switches from Bush to Kerry:

The Economist magazine, which endorsed Bush in 2000, has endorsed Kerry in 2004. This strikes me as more significant than most endorsements, both because they endorsed Bush in 2000 (and endorsed Dole in 1996) and because they are very smart small-government types. And it is particularly striking because they supported the decision to invade Iraq. The Economist's editor, Bill Emmott, said

"It was a difficult call, given that we endorsed George Bush in 2000 and supported the war in Iraq. But in the end we felt he has been too incompetent to deserve reelection."

The endorsement adds that

"America needs a president capable of admitting to mistakes and of learning from them. Mr Bush has steadfastly refused to admit to anything."

Yogi Berra:

Dan Gifford passed along a link to a funny and sweet article about a recent appearance by Yogi Berra; here are some particularly nice lines:

It's a lucky few who get to visit a museum and talk with the person it's named after. As Yogi Berra himself said at the 1998 dedication of the Yogi Berra Museum and Learning Center here: "This is a great honor. Usually you have to be dead to get something like this." . . .

Q: "Yogi, what did Ted Williams say to you when you tired to distract him by talking?"

A: "He'd say, 'Shut up, you little Dago.'" ("But," adds Yogi, "Ted was a great guy.") . . .

"Yogi," someone asked toward the end of the evening, "is this going to become an annual event?"

"Well, yeah," replied the Hall of Famer, "if we do it every year."

Speech restriction in public university dorms:

The Foundation for Individual Rights in Education, whose factual accounts I've always found trustworthy reports the following:

The University of New Hampshire has evicted a student from housing for posting fliers in his residential hall joking that freshman women could lose the "Freshman 15" by walking up the dormitory stairs. The public university found him guilty of violating policies on affirmative action, harassment, and disorderly conduct, and has sentenced him to mandatory counseling and probation along with his eviction. See the flier here.

In appealing his sentence, student Timothy Garneau explained that the flier was intended to make light of the common frustration with people who delay the elevator by taking it for just one or two floors instead of taking the stairs. UNH rejected his appeal, and Garneau was ordered to move out of his dormitory. Garneau reports that he is currently living out of his car. . . .

The "offensive" flier included a cartoon picture of a woman in outdated workout gear and the following message:

9 out of 10 freshman girls gain 10 - 15 pounds. But there is something you can do about it. If u live below the 6th floor takes the stairs....Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes. [sic]

Garneau posted copies of the flier in the elevators of his dormitory, Stoke Hall. According to Garneau, a resident assistant had removed all of the fliers within less than two hours. When Garneau was approached by the Stoke Hall Director and accused of hanging the fliers, he initially denied responsibility, fearing that he would be punished harshly and embarrassed in front of his peers. However, Garneau soon admitted to posting the flier and was charged with offenses including: "acts of dishonesty"; violation of "affirmative action" policies; "harassment"; and "conduct which is disorderly, lewd."

Within a week of the incident, and prior to his hearing, Garneau posted a written public apology for unintentionally offending others in his residential hall and apologized in person to students that he knew had complained.

At an October 8 hearing, the university found Garneau guilty of all charges. Despite Garneau's offers to voluntarily atone for his actions through community service, social awareness projects, and other activities, the university sentenced him to immediate expulsion from student housing and disciplinary probation extended through May 30, 2006. He was also required to meet with a counselor to discuss his "decisions, actions, and reflections" about the incident, to write a 3000-word reflection paper about the counseling session, and to submit an apology letter to the residents of Stoke Hall to be published in the hall's newspaper. . . .

The flyer is juvenile -- I can certainly see why some people might be offended. And the university would be entitled, I think, either to (1) ban all posting of flyers in elevators and corridors (which are in the category of government property that is a "nonpublic forum," in which the government may impose reasonable, viewpoint-neutral restrictions), or (2) impose a viewpoint-neutral though content-based ban on fleyrs that are genuinely "lewd" (if those terms were defined precisely enough). It could also punish students for being dishonest when questioned about flyers they posted, if it is doing so solely because the student was being dishonest, and not actually because of the flyer's viewpoint.

But here it's pretty clear that the university banned the flyers precisely because they expressed a viewpoint that the university found offensive -- likely that women ought to care about losing weight and not being "sore on the eyes" by being somewhat overweight, or (less plausibly) that women ought to take the stairs while men take the elevator. Pretty clearly a First Amendment violation. This particular speech is hardly momentous or deeply important; but if such speech may be banned from university dorms because of its viewpoint, then it's hard to see how other offensive viewpoints would remain protected.


Rick Hasen (Election Law blog) notes the following: notes the following:

Stupidity news: One of Kerry's electors in Ohio, Rep. Sherrod Brown, is a congressman. Unfortunately, the constitution forbids federal office holders from being electors. It is possible that if Kerry wins Ohio, Brown's right to cast an electoral vote will be challenged in court. Whoever picked a constitutionally ineligible elector needs to get his or her mental software ungraded to the latest release.

Brown is indeed listed as a presidential elector: see here on page 11.

I assume that this would be an issue to be taken up, if necessary, in Congress when it counts electoral votes. . . .

UPDATE: A reader writes: "My understanding (from Rep. Brown's office) is that Rep. Brown has resigned and that the chairman of the Ohio Democratic Party will be able to appoint another elector." I'll let you know if I receive confirmation of this report.

If you wonder how clear the prohibition is on Representatives being electors, check out article II, section 1, clause 2 of the Constitution:

[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

UPDATE: Pepperdine lawprof Mark Scarberry writes (some paragraph breaks added):

3 U.S.C. section 4 provides: "Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote." I suppose Rep. Brown could resign (or be removed?) [FURTHER UPDATE: it turns out that he has resigned], and then Ohio could fill the vacancy, if Ohio has provided for filling vacancies in its election laws. A very quick Westlaw search suggests that Ohio has so provided, in Ohio Revised Code section 3505.39. That section treats an elector's failure to show up in the state capitol to vote as creating a vacancy. The electors who do show up can choose the replacement elector, who must be of the same party as the elector who did not show up. Here is the statutory language . . .: ". . . [Each] elector shall give notice to the secretary of state before nine a.m. of that day whether or not he will be present at the appointed hour ready to perform his duties as a presidential elector. If at twelve noon at the place selected by the secretary of state presidential electors equal in number to the whole number of senators and representatives to which the state may at the time be entitled in the congress of the United States, are not present, the presidential electors present shall immediately proceed, in the presence of the governor and secretary of state, to appoint by ballot such number of persons to serve as presidential electors so that the number of duly elected presidential electors present at such time and place plus the presidential electors so appointed shall be equal in number to the whole number of senators and representatives to which the state is at that time entitled in the congress of the United States; provided, that each such appointment shall be made by a separate ballot, and that all appointments to fill vacancies existing because duly elected presidential electors are not present shall be made before other appointments are made, and that in making each such appointment the person appointed shall be of the same political party as the duly elected presidential elector whose absence requires such appointment to be made. In case of a tie vote the governor shall determine the results by lot. "The electors making such appointments shall certify forthwith to the secretary of state the names of the persons so appointed and the secretary of state shall immediately issue to such appointees certificates of their appointment and notify them thereof. All of the state's presidential electors, both those duly elected who are then present and those appointed as herein provided, shall then meet and organize by electing one of their number as chairman and by designating the secretary of state as ex officio secretary and shall then and there discharge all of the duties enjoined upon presidential electors by the constitution and laws of the United States. . . ."
The NYT's Politics:

Here's the abstract to an intersting statistical study by Riccardo Puglisi of the London School of Ecnomics analyzing New York Times issue coverage from 1946-1994.

I analyze a dataset of news from the New York Times, from 1946 to 1994. Controlling for the incumbent President's activity across issues, I find that during the presidential campaign the New York Times gives more emphasis to topics that are owned by the Democratic party (civil rights, health care, labour and social welfare), when the incumbent president is a Republican. This is consistent with the hypothesis that the New York Times has a Democratic partisanship, with some watchdog aspects, in that it gives more emphasis to issues over which the (Republican) incumbent is weak. Moreover, out of the presidential campaign, there are more stories about Democratic topics when the incumbent president is a Democrat.

Wednesday, October 27, 2004

"Orin Kerr Professor Cute":

A reader of Article III Groupie properly admires one of our cobloggers. But, seriously, can this coblogger hold a candle to this one?

Interesting Article on "The Sudden End of Iraqi Jewry":

From the New York Jewish Week.

Related Posts (on one page):

  1. Interesting Article on "The Sudden End of Iraqi Jewry":
  2. "Biggest Iraqi City" Outside Iraq:
American Cars in Cuba: Today's New York Times has an interesting article on the belief that Cubans are in love with American cars from the 1950s. A number of recent books and movies such as Yank Tanks have left this impression, but the Times offers a different view: "Nothing could be further from the truth. Cubans love new American cars, not old ones, but the newest ones that they can get their hands on are 45 years old." An excerpt from the story:
  The first thing the passengers noticed when they opened the trunk was five five-gallon cans of gas sloshing around where a spare tire should have rested. The car had no gas tank, and Ricardo had rigged a plastic siphon from a smaller tank under the dashboard. The four doors shared one outside handle, which was dutifully passed from door to door so each could be opened. Still, happy and optimistic, they poured a ceremonial splash of rum on the car's floorboard for good fortune, and lurched away.
  After a couple of miles, Leonardo nonchalantly asked about oil. "I don't know," Ricardo replied. "I've never put in any in." The Chevy peaked at about 35 miles an hour. They stopped every five miles to suck gas into the siphon and feed the engine.
  Famished by late afternoon, they pulled over to a field and cut stalks of sugar cane to chew on. Then the most shredded of the four tires suddenly exploded, and the seven passengers roamed the nearest small town looking for a replacement. The best they could do was a tractor tire they whittled to size, then, with borrowed equipment, soldered in place.
  Back on the road, a side window fell into the lap of a startled Juan Carlos. The car lacked windshield wipers, rear lights and bumpers, and none of the dashboard dials worked. Ricardo himself lacked a driver's license. The clutch pedal fell through what was left of the floor. Often they had to push-start the car after a stop. (The car did have a fully functioning theft-alarm system.) The '56 Chevy belched into Cienfuegos late that evening.
Age of Consent to the Act Versus the Video:

In Nebraska, the age of consent to engage in sexual activity is 16; however, sexually explicit images of those under the age of 18 count as criminal child pornography. So what happens if a 31-year old man creates a videotape of himself and his 17-year old girlfriend having sex? The sex is legal, but the videotape is not. Or so the government argues in a case you can read about here.

Black Judges:

Here's a poorly-reasoned article (via How Appealing) that relies on statements by an NAACP Legal Defense Fund attorney for criticism of the supposed dearth of black Bush appointees to the federal judiciary. According to the article, 7.5% of all Bush judicial appointees have been black (the list doesn't include Janice Brown, whose nomination has been held up by Senate Democrats).

The vast majority of judicial appointees are over forty and are active members of the president's party. Approximately 5.7% of all attorneys in the U.S. are African Americans. The percentages have increased dramatically over the last thirty years, so one can assume that the percentage of lawyers over 40 who are black is under 5%. Let's use five percent for simplicity's sake. Already, we see that Bush has appointed a higher percentage of black lawyers than their share of the lawyer population. But then we have to add in the fact that politically active African American lawyers, like African Americans in general, are overwhelmingly Democrats. The pool of black Republican lawyers over 40 is undoubtedly a much smaller percentage of the pool of over-40 Republican lawyers than the overall five percent statistic suggests.

I think it should be clear by now that the Bush Administration has gone out of its way to appoint African American judges. Indeed, given the relative percentages of black Republican and Democratic attorneys, Bush (7.5%) has gone further out of his way than did Clinton (approximately 15%), given the strong likelihood that far more than twice as many African American attorneys are Democrats as are Republicans. Oddly, if anyone has cause for complaint regarding race and Bush judicial nominations, it's likely Bush supporters who support colorblindness [although, of course, the mere fact that blacks are overrepresented in judicial appointments is not proof of lack of colorblindness], not the NAACP.

Prof. Joseph Massad of Columbia:

Brian Leiter links to an online petition in support of Prof. Joseph Massad of Columbia. Brian states that the charge of misconduct vis a vis a student by Mr. Massad are serious, but do not warrant dismissal. First, let's be clear that I have no personal knowledge as to whether any accusations made against Prof. Massad are true. As far as I know, the most serious charge against Prof. Massad, and the one Brian is likely referring to, is as follows:

a former Columbia undergraduate, Tomy Schoenfeld, recalls attending a lecture about the Middle East conflict given by Mr. Massad in spring 2001. At the end of the lecture, Mr. Schoenfeld prefaced a question to the professor by informing Mr. Massad that he was Israeli, Mr. Schoenfeld told The New York Sun. "Before I could continue, he stopped me and said, 'Did you serve in the military?'" Mr. Schoenfeld, who served in the Israeli Air Force between 1996 and 1999, recalled. He said that he told Mr. Massad he had served in the military and that Mr. Massad asked him how many Palestinians he had killed. When Mr. Schoenfeld refused to answer, Mr. Massad said he wouldn't allow him to ask his question.

At least Brian notes the seriousness of the charge. Despite the flowery rhetoric of the on-line petition, harassment and discrimination against an individual student based on his national origin is certainly not part of academic freedom, though one can debate how serious the reprecussions from one incident should be. For now, not knowing all the facts, including Prof. Massad's side of the story, I'm willing to reserve judgment; but why are Massad's defenders so eager to defend him on academic freedom grounds, before knowing all the facts? They call on Columbia President Bollinger "to rise to the occasion and issue a categorical statement in defense of Professor Massad and against this campaign of defamation;" is Bollinger supposed to categorically defend Massad without knowing the facts?

And why is a movie about anti-Semitism and anti-Israel sentiment at Columbia that merely investigates incidents such as these, along with the reaction thereto, an "attack on academic freedom?" Part of freedom of speech the right to criticize what professors say and do in their classrooms and in their scholarly work. And donors, specifically criticized by the petitioners, have the right to withhold donations from a university if they believe that the university is doing a poor job in one way or another.

Certainly, any official sanction from Columbia--assuming it even follows up on any of this--faced by Prof. Massad should (1) be based on fact, not rumor; (2) be limited to conduct not protected by the principles of academic freedom; and (3) be proportionate to action taken against other professors for similar misconduct. But the suggestion in the on-line petition that a claim of discrimination by Prof. Massad by an Israeli student should not be taken seriously because "[t]hey ignore his distinguished teaching record and the significant support he enjoys from the vast majority of students who have, in fact, taken his classes," is risible. Should a university ignore complaints of discrimination by a black student, a woman, or member of another group just because most students weren't subject to such discrimination and in fact enjoyed the class?

Note that Brian links to the website of notorious British professor Mona Baker, famous not for her scholarship but for firing two Israeli professors--both, ironically, leftists--from an academic journal she ran solely because they are Israelis. She's now a spokesperson for academic freedom and integrity?

I'm certainly aware, from working on You Can't Say That!, of how claims of discrimination can be misused to try to silence others. But I'm waiting for some indication, from Prof. Massad or others, that the incident in question never actually happened. Until then, forgive me if I don't join the petitioners on the barricades.

UPDATE: More on Massad here. If this is a representative example of Massad's "scholarship," it's hard to imagine why any reputable university would want him teaching a course there, much less consider him a viable candidate for tenure. (Among other things, anyone who sees Zionism as merely an outgrowth of racist European colonialism, neglecting two thousand years of Jewish prayers for a return to the Land of Israel, and related incidents such as Shabtei Zevi's false Messiahship in the 17th century which included a promise of a Jewish return to the Land of Israel, is incredibly ignorant of relevant Jewish history. To take another example, the original Zionist immigrants to Palestine didn't come armed, as Massad states, they came peacefully, having bought land legally from Arab landowners, and only armed themselves to protect themselvs from Arab marauders who frequently attacked their settlements. And so on.)

On the other hand, here is a rather sympathetic portrayal of Massad from the New York Jewish Week. This article clarifies the incident in question--it occurred after a public lecture, not after a class, so at least Massad isn't accused of haranguing one of his own students, although another student claims that Massad was very disrepectful when the student defended Israel in class. Unfortunately, the Jewish Week reporter doesn't seem to have asked Massad whether either incident happened.

FURTHER UPDATE: The Sun reports that Bollinger has launched an investigation. Also according to the Sun,

In one scene in the film, a Columbia student, Noah Liben, recalls a class he had with Mr. Massad in spring 2001 during which the professor, while making the argument that Zionism is a male-dominated movement, told students that the Hebrew word zion means "penis." Zion actually means a "designated area or sign post," which sounds similar to zayin, which means a weapon or penis, according to Rabbi Charles Sheer, the former Jewish chaplain at Columbia.

Actually, in Hebrew, the word "Zayin," slang for penis, sounds nothing like the word "Tziyoan" meaning Zion. Anyone who confuses zayin and tziyoan to make a silly political point is a boob.


Comments filed with the Antitrust Modernization Commission have been posted and can be found here.

Startling Change in Educational Background and Voting Preference:

The Wall Street Journal notes a remarkable shift in an article today on page A4 (subscription required). In 2000, those with a high-school diploma or less preferred Gore to Bush by 7 percentage points, and those who graduated college preferred Bush to Gore by 5 percentage points. That is in keeping with what had been a longstanding education gap -- college graduates have tended to vote for the Republican candidate more (and for the Democratic candidate less), and the reverse has been true for those who didn't complete college. (Those who went to graduate school have tended to prefer Demcratic candidates, but the Wall Street Journal doesn't separate out those numbers in its story today.)

But in the polling for 2004, those with a high-school diploma or less prefer Bush 57% to 38%, and those with a college degree prefer Kerry by 14 percentage points. That's quite a shift (to put it mildly).

More on the supposedly confusing Ohio absentee ballot:

My former student Patrick Lewis writes:

Took four pics of the absentee ballot today down at the Cuyahoga County Board of Elections. I also have the absentee voter booklet (but not the absentee ballot itself) in my possession. I'm waiting on our tech people to pull the pics off the digital camera . . . .

The conclusion: the Cuyahoga County absentee ballot is not significantly confusing. It's possible someone might get thrown by the user-unfriendly layout of the ballot card (it's the same card you shove in the voting machine), but I highly doubt that many people will be lining arrows up to cards.

Why do I think that?

1. The ballot is 12" long and roughly 4" wide (so, just a bit longer than a standard #10 envelope), whereas the booklet (that contains the list of candidates and the alleged arrows) is 5" x 7". I doubt that most ordinary people would attempt to line up a multi-page booklet with a single sheet ballot card, especially when the card is of a radically different shape and size, and the layout of the card doesn't match the layout of the booklet.

2. There is a cover page to the ballot, and on the second page (behind the cover page) is a sheet of instructions that clearly state to use the number on the ballot. The instruction sheet makes no mention of the arrow whatsoever. Most ordinary people are smart enough to figure out "to vote for #2, punch #2."

3. It would become immediately obvious to any voter that he or she is doing it wrong because, on 3/4 of the booklets, a higher-numbered choice goes above a lower-numbered choice for the Presidential ballot, whereas on the actual ballot card, the numbers are sequential. The Cuyahoga County ballot cycles the candidates for the different elections. For example, on my booklet, the list of Presidential candidates are:


It's kind of hard to line the arrow up to the 10 with 2 appearing below it.

(And on another absentee booklet, the order went Kerry, Disqualified, Pertouka, Badnarik, Bush; it's not random, but it is a cycled, alphabetical list).

Take care! I'll get you the pictures when I can.

Related Posts (on one page):

  1. More on Ohio absentee ballots:
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  3. Daughter of "Madam Butterfly":
New Terrorist Tape?:

Drudge has the scoop.

Is Christopher Hitchens Endorsing Bush or Kerry?--

In the Nation, Christopher Hitchens slightly endorses Bush, but in Slate (scroll down) Hitch endorses Kerry. Is the Slate Kerry endorsement a flip-flop or a typo? The text of the Slate endorsement is ambiguous.

The New York Times stumbles again.--

Captain's Quarters and KerrySpot have interesting commentary on the Al QaQaa story. It appears that even after the New York Times story has been exposed as doubtful, the Times is still not able to use Google or Nexis to read the April 2003 stories to figure out which military units were first on the scene. In this context, KerrySpot's accounts from military who were in the first wave at Al QaQaa look both credible and relevant. As Instapundit would say: advantage blogosphere.

This ABC story suggests that the explosives disappeared AFTER Al QaQaa was reached by US troops. Advantage: MSM.

Kerry Spot has more questions about the evidence.
Iraq's Election and Ours:

The Washington Times has an interesting story today on how some Iraqi insurgents hope to affect the Presidential election:

Mowafaq Al-Tai, a London-educated architect and intellectual, said different types of resistance fighters have different views of the U.S. election. The most pro-Kerry, he said, are the former Saddam Hussein loyalists — Ba'ath Party members and others who think Washington might scale back its ambitions for Iraq if Mr. Kerry wins, allowing them to re-enter civic life. The most pro-Bush, he said, are the foreign extremists. "They prefer Bush, because he's a provocative figure, and the more they can push people to the extreme, the better for their case."

Weird self-knowledge:

Dahlia Lithwick in Slate has an interesting article on why the Justices will likely stay away from any possible election-related litigation; I'm not sure she's right but she makes a good argument.

The one item that puzzled me in the piece, though, is this:

Justice Stephen Breyer's supremely weird confession this weekend at Stanford -- that he was never truly certain he was being impartial about his vote in Bush v. Gore -- doesn't sound like the words of a man itching for a do-over. "I had to ask myself would I vote the same way if the names were reversed," he told the law students. "I said 'yes.' But I'll never know for sure -- because people are great self-kidders -- if I reached the truthful answer."

I wonder what's "weird" about Breyer's statement. Seems like most people who are thoughtful and aware of the errors that they (as well as other decent but fallible people) can make would say the same thing, if they are in the mood to be maximally candid. Breyer wasn't confessing that he was swayed by the parties' identities; he was saying that he tried not to be swayed by it, and that he thinks he succeeded. But he was also admitting that, being human and fallible, he might have failed. What's weird about that? Is it just that this sort of public candor is rare?

Kerry is not a plagiarist.-- John Kerry is probably not a plagiarist but one of his (former?) staffers may be. The New York Sun is reporting that there are multiple plagiarized passages in John Kerry's writings (tip Betsy's Page). Most of what politicians write is ghost-written for them and sorting out authorship can be difficult--eg, claims that Ted Sorenson (who received direct royalties from Profiles in Courage) had ghost-written it for John Kennedy lacked proof. In this case, there is little reason to think that John Kerry himself is guilty of plagiarism. Further, politicians often borrow ideas and language from others without attribution, much as judges borrow from briefs without attribution and reporters borrow language from sources.

Example 1 from the New York Sun:
Kerry, the New War: "Russian mobsters have been arrested in Germany for extortion, car theft, counterfeiting, prostitution, selling drugs and illegal weapons, and smuggling everything from icons to uranium."

Phil. Inquirer: "Suspected Russian mobsters have been arrested in Germany and charged with extortion, car thefts, counterfeiting, prostitution, gambling, and selling drugs and illegal weapons. They have been caught smuggling everything from religious icons to uranium."
Example 2:
Kerry, The New War: "Recent reports indicate that uranium is being stored in the sort of lockers used by students in American high schools. In Murmansk, a Russian naval officer crawled though a hole in the fence surrounding a submarine fuel facility, broke into a locker, and hacked off a ten-pound hunk of enriched uranium, which he hid in his garage. He was caught only when he attempted to find a buyer."

Maclean's (magazine): "Uranium is kept in the sort of lockers found in North American high schools....A Russian naval officer in Murmansk who crawled through a hole in the fence surrounding a submarine fuel facility...entered a building that was unlocked, broke into a locker, hacked off a 10-lb. chunk of enriched uranium and hid it in his garage. He was looking for a buyer when he was caught."
Example 3:
'"Our Plan for America: Stronger at Home and Respected in the World," [described by the New York Sun as] the official campaign book for Mr. Kerry and his running mate, Senator Edwards': "In many states, individual farmers and ranchers lease their property to wind power companies and receive an annual payment for having wind turbines on their property. With the right leadership, this could become a 'cash crop' for many other farmers and ranchers from around the country and stabilize rural economies"

"Energy Department fact sheet": "In many states, individual farmers and ranchers lease their property to wind power companies and receive an annual payment for having one or more wind turbines on their property. This could become a predictable 'cash crop' for many other farmers and ranchers across the country, and help to boost farm and ranching incomes and stabilize rural economies."
What is it about the books of Presidential candidates? My favorite critique was the online quiz in which it's hard to tell passages from the Unabomber's Manifesto from Al Gore's Earth in the Balance. If you haven't taken the quiz, I'd recommend it. I got more than half of them wrong, misattributing Gore's words to the Unabomber or vice versa. It's only 12 questions so it is not time-consuming.

Tuesday, October 26, 2004

Deconstructing the Indymedia Server Story: Two weeks ago, Indymedia's servers being seized by the FBI was a big story around the web. The reports were very vague on the facts, but gave the impression that the FBI knocked on Indymedia's door and grabbed their servers to shut down Indymedia's service. The story generated a great deal of attention: a google search uncovers lots and lots of outrage about what (was believed to have) happened. There were lots of reports with titles like "FBI Stooges Seize Global Indymedia Servers", "Big Brother is Acting", and "FBI Shutdown of Indymedia Threatens Free Speech".

  The story is back in the news today with an AP story, Web Server Takedown Called Speech Threat, that received the bright red link from the Drudge Report. The AP story mostly reviews the facts of what happened two weeks ago, and it also includes the mandatory sky-is-falling quote from the ACLU:
"The implications are profound," said Barry Steinhardt of the American Civil Liberties Union, calling the Indymedia activists "classic dissenters" and likening the case to "seizing a printing press or shutting down a radio transmitter."
  "It smells to high heaven," he said.
  But what really happened? I decided to take a closer look, and I have reached a tentative conclusion: This story was badly misreported from the beginning. Not only did the FBI do everything by the book, but they didn't even seize or attempt to seize any computers.

  Here's what I think happened. The Swiss and Italians were conducting domestic investigations involving violations of their laws; at some point, they had reason to believe that suspects had posted items on Indymedia's servers. Indymedia has different sites focused on audiences in different — here is their Italian site, for example — so it isn't surprising that a foreign investigation might involve Indymedia. The Swiss and Italian governments wanted to find out who had posted that information, so they wanted to get information from the only known place it might exsist: Indymedia's server. As a practical matter, Swiss and Italian investigators couldn't know if the information was actually located there; it is quite possible that Indymedia intentionally does not retain such information so as to thwart investigations such as this. But to find out, they had to go to the United States, where they believed the relevant servers hosting Indymedia's sites were located.

  Foreign government just can't go to the U.S. and demand information from U.S. companies, of course; they need to go to the United States government and make a request for assistance under Mutual Legal Assistance Treaties (MLATs). MLAT's are agreements between two countries in which the governments agree to help the other in their criminal cases, subject to specific conditions. The Swiss and Italian authorities went to the U.S. authorities and requested a court order that whoever hosted the Indymedia sites disclose the relevant information. A federal prosecutor was commissioned to work on the case, in a procedure described by DOJ here, here, and obtained a court order ordering the host of Indymedia's computers, Rackspace, to divulge the information.

  Here's the important part: It seems fairly certain that the FBI order did not order Rackspace to hand over the server or shut down the site. Based on what we know, it seems highly likely that the order was obtained under the Electronic Communications Privacy Act, which gives the government the authority to compel information (not physical things) from ISPs. Why is this likely? There are a few reasons, but one is that Rackspace has claimed that it cannot disclose the details of what happened under a court order. A non-disclosure order is a "smoking gun" that ECPA provided the authority. Normal subpoenas are not accompanied by any type of order not to disclose, but ECPA allows prosecutors to apply for a court order requiring the ISP not to disclose the existence of an order to disclose information under 18 U.S.C. 2705(b). I can't be sure, but it seems highly likely that Rackspace's refusal to comment further is a response (whether justified or not) to a Section 2705(b) order. If that's true, all the FBI did was serve a court order to disclose information on Rackspace.

  Why was Indymedia's service shut down? This post from Eugene offers the most probable answer; in all likelihood, Rackspace figured it would be easier to give up the server and let the law enforcement folks figure out what they want rather than go through and get the information themselves. It seems that the servers were not given to the FBI, however; the relevant servers were located in England, and the FBI has denied involvement. All we know is that Rackspace handed over the servers to someone in England, and that the servers were then returned to Rackspace a few days later — apparently after the relevant information was obtained. When its service was disrupted as a result of the server switch, and Rackspace was asked to explain what happened, Rackspace put out a press release pointing to the FBI for the problem: the statement says that "Rackspace is acting as a good corporate citizen and is cooperating with international law enforcement authorities. The court prohibits Rackspace from commenting further on this matter."

  To summarize, it seems highly likely that the FBI only served an order to disclose information on Rackspace. Rackspace was lazy, though, and instead, on its own volition, handed over the entire server (to whom, we don't know). We can't be sure yet, but it seems very likely that Indymedia's sites were down not because the FBI ordered that they be taken down, or because the FBI ordered that Rackspace had to hand over the servers, but because Rackspace was being lazy. Further, it's not clear why any gag order on Rackspace would forbid Rackspace from admitting this. I don't know much about Rackspace, but I wouldn't be surprised if they are taking an unreasonably broad interpretation of the nondisclosure order to try to shield their goof-up from the public.

  Of course, this is only my best guess of what happened, and it is only a circumstantial case. If it turns out that I am wrong in whole or in part, I would be happy to post a correction.

UPDATE: A reader points out that I am making a big value judgment by suggesting, if this basic scenario is accurate, that Rackspace was "lazy." That's a good point; I don't know enough about the practical difficulties of turning over the information to say whether Rackspace's decision to hand over the servers was the result of laziness or just a recognition of the high costs of gathering the information.
Slippery Slopes:

Patri Friedman (Catallarchy) has thoughts on a talk I gave yesterday on slippery slopes.

Leiter on Dworkin:

Brian Leiter has posted a short and entertaining essay criticizing the jurisprudential contributions of Ronald Dworkin. If you have any interest in legal theory, give it a read.

Civil unions and the Federal Marriage Amendment:

Michael Totten, guest-blogging at InstaPundit writes:

BUSH ON CIVIL UNIONS: President Bush said today that he favors civil unions for gays, or at least that he doesn't agree with the Republican Party platform that opposes them. This is news to me. How can he be in favor of civil unions and also back the Federal Marriage Amendment? He can't, at least not consistently. The FMA would ban civil unions as well as gay marriage. This is a flip I'll take, as long as he doesn't flop back on it.

President Bush's position is actually consistent with the FMA (whether or not either is right). President Bush said that "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so" — that, in the Times' words, "the matter should be left up to the states."

The Federal Marriage Amendment would not block a state from recognizing civil unions. It provides (I quote the Mar. 22, 2004 version, S.J. Res. 30) that "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

The first sentence would indeed ban same-sex marriages no matter what a state thinks. The second sentence probably bans state and federal courts from holding that a state legislature must recognize a same-sex union (which is what the Vermont Supreme Court did); and it probably bans voters from recognizing same-sex unions via constitutional amendment, though it's not clear whether the drafters intend this, and whether the provision would be interpreted this way. But neither sentence bans state legislatures — or state voters, via initiative statute rather than constitutional amendment — from recognizing same-sex unions.

So if the FMA is enacted (and note that, as I've blogged before, I do not support its enactment), the result will be almost exactly what Bush suggests: A state could still "choose to" recognize "a civil union" as "a legal arrangement." It would have to do so via a statute — just as most family law is defined by statute — not via a court decision or (probably) a constitutional amendment. But it would indeed be free to make such a choice.

UPDATE: The text I quote above is also the text of S.J. Res. 40, July 22, 2004; you can find both by searching for "federal marriage amendment" at An UPDATE to the original InstaPundit post reveals that Michael Totten was likely referring to an older version of the FMA -- the version I quote above seems to be the current one.

Different Take on Missing Explosives: ABC's The Note describes an NBC News report that offfers a different perspective on the recent stories about 380 tons of high explosives missing in Iraq:
  There is a strong and not always unwarranted suspicion on the right that the press likes to end-load the pre-election news cycle with lots of hard-hitting, negative stories ... so with that, we bring you the latest "surprise" stories that have the potential to develop nationally.
  Yesterday's "surprise" — the New York Times story on the missing explosives, " ... gave Kerry an opening on national security" and leads some to say that Monday was "the second day in a row that Bush appeared on the defensive on the issue his advisers believe will lead to Kerry's defeat: keeping the United States safe," reports the Washington Post 's VandeHei and Allen.
  An NBC News report last night suggested that those explosives went missing before April 10, 2003 — before U.S. troops ever got to the site in Iraq, leading to an avalanche of push-back from the Bush campaign last night. If the 101st Airborne Division was indeed there one day after liberation and they could not find any of the high grade explosives, that does cast doubt on the suggestion that the Bush Administration's alleged failure to plan for post-war eventualities was to blame.
  . . . .
   The NBC story does not exonerate the president, but it does add context that rebuts, at least to some extent, the most hyperbolic charges that we heard yesterday.
UPDATE: Reader Randy Plemel notes that Josh Marshall has a different take on the different take.
User's Guide to the Stored Communications Act:

The final version of my new article on the Stored Communications act is now online: A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It. The Stored Communications Act is the federal law that governs access to stored Internet communications and other Internet records held by ISPs. Although the SCA has been around since 1986 and has become only more important over time, few people understand what it does. My hope is that this article can shed a little light on the statute in a way that lawyers and judges will find helpful.

  The final version of the article also discusses some recent cases and controversies on the SCA. It offers a very critical take on Judge Kozinski's surprising decision in Theofel v. Farey-Jones — I describe the opinion's rationale as "highly implausible" and "remarkable" — and includes a discussion of the issues raised by the recent First Circuit litigation in United States v. Councilman.

Monday, October 25, 2004

Republicans and Political Ignorance, Continued:

Readers have asked about my evidence for the proposition that conservatives are generally better informed about politics than are liberals. I was likely recalling the following chart, posted on the VC several months ago:

Political Knowledge by Strength of Party Identification
2000 National Election Study
Self-Described Party Alignment / Average Political Knowledge Score
(Average number of correct answers on 31 point scale)
"Strong Republican / 18.7
"Independent-Republican / 15.7
"Strong Democrat / 15.4
"Independent-Democrat / 14.2
"Weak Republican/ 14.1
"Weak Democrat / 13.3
"Independent-Independent / 9.5

If being a strong Democrat is highly correlated with being liberal, and being a strong Republican is highly correlated with being conservative, than based on this data, my statement was likely correct, though I am open to a contrary showing.

The Length of Law Review Articles: Over at Crooked Timber, Micah Schwartzman offers a response to Richard Posner's critique of law reviews. This section on the length of law review articles caught my eye:
  Posner faults students for the ridiculous length of legal articles. But most articles are submitted at lengths well over 25,000 and frequently over 40,000 words. . . . Posner complains that student editors add unnecessary footnotes to articles. But when a submission is already 40,000 words long, and often badly researched or cited (even by the most minimal standards), what's another 5000 words below the line? . . . .
  It's true that law professors submit long articles in part because law reviews will publish them. But law reviews publish short articles, too. Some law reviews have started to institute word caps, but many law professors do what they can to avoid this and will negotiate at length with editors for more words. . . . [C]onsider what would happen if tenure committees announced that they were no longer interested in reading articles over, say, 10-15,000 words. The average length of law review articles would drop dramatically. Moreover, such a move might foster a change in the norms of legal academic publishing. What counts as a good "tenure" article has become the standard for all law review articles: 70 single-spaced pages and 250-350 footnotes. That is the target. Change the tenure standard, and everything else changes with it.
  A few random thoughts in response. First, I agree that most law review articles are much too long. Oliver Wendell Holmes's masterpiece The Path of the Law is only 19 pages long; I don't know why most law review articles have to be 60 or 70 or 80 pages long. Most of that is padding, anyway; most articles have about 20 pages that are the guts of the argument, and another 50 pages of literature review, discussion, and repetition.

  Who is to blame for the length of most articles? I'm not sure, and in all likelihood there is enough blame to go around. Schwartzman focuses on tenure standards, but I don't know how far that goes. Most legal scholarhip is not submitted to obtain tenure, and my sense is that most tenure committees don't have a preference for pieces longer than about 50 pages.

  What length do articles editors prefer? In my experience, law review editors do tend to prefer longer articles, and longer articles do tend to place higher in the pecking order. For best placement, the optimal length is probably in the neighborhood of 80 pages. Why is that? Perhaps student editors use length and footnotes as a proxy for measuring scholarly impact. Student journal editors who are in charge for just one year may want to select works that will be regarded as the end-all-be-all article on that topic, and perhaps they are more easily convinced that a given article will be so regarded if it is 90 pages long and has 500 footnotes than if it is 20 pages long and has 50 footnotes.

  Of course, that's just my speculation. Whatever the reason, it does seem that articles editors generally prefer longer submissions. Once, before I started teaching full time, I submitted two short essays to law reviews in the same month. One journal made me an offer, but with a curious condition; they wanted me to put the two short essays together so the combined work would be the "right" length for an article. If I would combine the essays to create one full-length article, the editors explained, they would publish that article. The fact that the two essays were on different topics didn't seem to bother them; they liked the essays individually, and expressed confidence that I would find some common theme if I put them together. As you might imagine, I declined.
Missed Opportunity to Kill Zarqawi:

The story of the 380 tons of explosives missing from a known base in Iraq is obviously big (and depressing), but that shouldn't entirely obscure another important story. A few months ago, co-conspirator Jacob Levy noted the lack of response to an NBC Nightly News report asserting that the Pentagon had located Zarqawi's camp in Iraq before the war began, but that the White House vetoed an attack on the camp because Zarqawi was more convenient as a living terrorist in Iraq who could help justify the war. Jacob followed up on the story here, and noted Robert Novak's claim that this was an "urban legend" here. That's the last I'd seen on any aspect of this story, and I assumed that there was nothing to it. But today's Wall St. Journal has an article on page A3 (subscription required) that returns to the issue. The whole article is worth reading, but I'll quote a few key paragraphs:

The Pentagon drew up detailed plans in June 2002, giving the administration a series of options for a military strike on the camp Mr. Zarqawi was running then in remote northeastern Iraq, according to generals who were involved directly in planning the attack and several former White House staffers. They said the camp, near the town of Khurmal, was known to contain Mr. Zarqawi and his supporters as well as al Qaeda fighters, all of whom had fled from Afghanistan. Intelligence indicated the camp was training recruits and making poisons for attacks against the West.

Senior Pentagon officials who were involved in planning the attack said that even by spring 2002 Mr. Zarqawi had been identified as a significant terrorist target, based in part on intelligence that the camp he earlier ran in Afghanistan had been attempting to make chemical weapons, and because he was known as the head of a group that was plotting, and training for, attacks against the West. He already was identified as the ringleader in several failed terrorist plots against Israeli and European targets. In addition, by late 2002, while the White House still was deliberating over attacking the camp, Mr. Zarqawi was known to have been behind the October 2002 assassination of a senior American diplomat in Amman, Jordan.

But the raid on Mr. Zarqawi didn't take place. Months passed with no approval of the plan from the White House, until word came down just weeks before the March 19, 2003, start of the Iraq war that Mr. Bush had rejected any strike on the camp until after an official outbreak of hostilities with Iraq. Ultimately, the camp was hit just after the invasion of Iraq began.


Some former officials said the intelligence on Mr. Zarqawi's whereabouts was sound. In addition, retired Gen. John M. Keane, the U.S. Army's vice chief of staff when the strike was considered, said that because the camp was isolated in the thinly populated, mountainous borderlands of northeastern Iraq, the risk of collateral damage was minimal. Former military officials said that adding to the target's allure was intelligence indicating that Mr. Zarqawi himself was in the camp at the time. A strike at the camp, they believed, meant at least a chance of killing or incapacitating him.

Gen. Keane characterized the camp "as one of the best targets we ever had," and questioned the decision not to attack it. When the U.S. did strike the camp a day after the war started, Mr. Zarqawi, many of his followers and Kurdish extremists belonging to his organization already had fled, people involved with intelligence say.

Note that the story doesn't discuss the allegation that the President vetoed an attack on the base in order to ensure support for the war in Iraq, but it does indicate that the Pentagon thought it had a good chance of taking out Zarqawi, and that the Administration chose not to do so. That fact alone is pretty distressing. We knew how dangerous he was, we knew where to find him, and apparently knew that the collateral damage would be minimal, and yet we failed to act. Ouch.

One small addendum: When asked about the NBC Nightly News story on June 27, Condoleezza Rice said "Let me just say we never had as far, as we know, we never had a chance to get Zarqawi." (Jacob has the quote here, under his second update.) So, was she lying, or was she out of the loop on this? If the former, that's pretty despicable (since it was an attempt to hide the truth simply to benefit her and her boss). If the latter, what kind of National Security Adviser is not getting this sort of information? If she's not getting it, doesn't that suggest that the NSC process is in pretty bad shape (and that the government is exhibiting the worst sort of stovepiping)?

John Ashcroft Pushing for Civil Liberties: Yes, it's true. Part two of the New York Times investigative report on military tribunals is out today, and it is very much worth reading. Among other things, it touches on areas of disagreement within the Bush Administration on what to do with Guantanamo and whether to set up military tribunals:
  [S]ome officials at the highest levels of the Bush administration began privately venting their frustration about both the slow pace of the Pentagon's new courts and the soundness of their rules. Attorney General John Ashcroft was especially vocal.
  "Timothy McVeigh was one of the worst killers in U.S. history," Mr. Ashcroft said at one meeting of senior officials, according to two of those present. "But at least we had fair procedures for him."
You can find part one of this report here.
Daughter of "Madam Butterfly":

John Fund writes in the Wall Street Journal's Political Diary about the new confusing-ballot controversy. Apparently absentee ballots in Cuhayoga County, Ohio (which includes Cleveland) "have arrows designed to be used with voting machines, where the arrows line up correctly with the candidate's name. But when used by an absentee, the ballot instructions tell absentee voters to punch the corresponding number but don't specifically say to disregard the arrows." Here is the relevant portion of the ballot:

Fund reports that "Either John Kerry or George W. Bush's arrow could be misaligned, depending on the order in which the names appear on the ballot."

UPDATE: A couple of readers have e-mailed me to suggest that the story may not be accurate, and that the image cited above may have a "1" removed from before the "2" and the "4." I don't have the time to investigate the matter closely, but I just want to flag that there's some uncertainty about it. Here, though, is the original source, an AP story.

FURTHER UPDATE: Reader Douglas McKinnie writes:

Re: readers suggesting that the image cited may have a "1" removed from before the "2" and the "4." I am a Cuyahoga County absentee voter. My ballot looks exactly like the one in your image, except that below section 1-3 for president there is section 2-11 "Official Office Type Ballot" for US Senator and for representative to congress, 10th District, with similar randomization of names/numbers. The numbers appear to be assigned in alphabetical order for each office by surname of candidates. I punched the card and posted the ballot back a week ago and didn't think the funny numbers or superfluous arrows to be worthy of any note.
In a follow-up, he writes:
The number for Badnarik-Campagna is 2, the number for Bush-Cheney is 4, that is right. Senator Voinovitch is 21, followed by Democrat challenger Fingerhut who is 20. Congressman Kucinich is 25, followed by Ferris(i) 23 and Herman (r) 24.
So as best I can tell the picture quoted above is authentic, notwithstanding the objections noted in the first UPDATE.
Libertarians for Bush: Our conspirator-in-chief is not the only one. John Hospers, the first Libertarian Party presidential candidate in 1972, endorses President Bush's reelection. The letter is posted, with approving commentary, by Robert J. Bidinotto here.

Meanwhile, Jesse Walker at Reason's Hit and Run reports former Republican Congressman Bob Barr will vote Libertarian.
Endnotes before Index in Word:

Many thanks to readers Arthur Einhorn and John Broughton, who have answered my question about how to put the endnotes before the index in Word. I've tested their suggestion, and it works great -- it basically involves (1) configuring endnotes so that they go at the end of each section and then (2) using the little-known Page Setup / Layout / Suppress Endnotes feature so that the endnotes don't in fact go at the end of each section (which I don't want) but all bunch up at the end of the second-to-last section, right before the index. Here's Arthur Einhorn's explanation, which I know works in my Word 2002:

1. Add a new section break at the end of your document. 2. Change your endnote settings so that the endnotes are displayed at the end of each section. 3. Select all the sections in your document except the last two. 4. Open the "Page Setup..." dialog box. On the Layout tab, check the "Suppress endnotes" check box. This will move all your endnotes to the end of the second-to-last section (i.e., the end of your text). 5. Insert an index in the (recently added) last section.

What Sir William Blackstone might have said about law professors:

Blackstone was the leading late 18th century commentator on English law, and highly influential in the colonies, and this is what he had to say about why the English common law was better than the Continental civil law:

The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on; which must needs breed great distraction and confusion in their tribunals.

Political Wolves:

The truth comes out about that "wolves" ad.

Upcoming Lecture at Syracuse: On Friday of this week I will be giving a distinguished lecture at Syracuse University School of Law. I will be talking about Restoring the Lost Constitution. Details can be found here.
Justice Breyer on Judicial Neutrality:

Speaking at the Stanford University Law School on Saturday, Justice Breyer reportedly said about his vote in Bush v. Gore: "I had to ask myself: Would I vote the same way if the names were reversed? I said 'yes.' But I'll never know for sure — because people are great self-kidders — if I reached the truthful answer." In other words, Justices are people too. Most judges and justice, in Breyer's words, "by and large try to find the answer. They come to different conclusions, but they try." In other words, judges and justices operating in good faith can reach contrary conclusions in any close case. Just something worth remembering before during this year's (inevitable? already begun) election litigation — and when partisans make charges of judicial partiality.

Sunday, October 24, 2004

Leiter on Posner on Law Reviews:

Brian Leiter offers some comments on Richard Posner's recent Legal Affairs article, Against the Law Reviews.

Free speech:

A reader, responding to my post criticizing the Guardian column writes:

[F]or a Professor of Free Speech, you don't seem very enamoured with the concept of free speech.

Actually, as a professor of free speech, I rather like exercising my own free speech. Part of my free speech rights is the right to criticize others. I think the Guardian should have the legal right to print disgusting statements like the one it printed, or for that matter disgusting Nazism, Stalinism, racism, or whatever else. And then the rest of us should condemn it for what it's doing.

Not everything that may be printed should be printed. That Hustler has the right to publish vile diatribes against Jerry Falwell doesn't mean it's good for the press to stoop to that level. Nor is there anything wrong with the public's criticizing such speech. Public criticism is not the equivalent of government censorship -- it's the proper alternative to government censorship.

So I'm being quite consistent. My correspondent, on the other hand, doesn't seem to be consistent. He seems to be implicitly saying that free speech demands that I not criticize the Guardian for what it publishes, or suggest that the Guardian shouldn't publish it. And yet he's criticizing me for what I publish, and is implicitly suggesting that I not publish it (since presumably I ought not be publishing what he sees as anti-free-speech and misguided criticisms).

Related Posts (on one page):

  1. Free speech:
  2. Those diplomatic Europeans:
Inside the Legal War on Terror:

Today's New York Times has a very interesting investigative report on how the Bush Administration decided to set up military trubunals to try captured Al Qaeda suspects. The article spends a lot of time on the process of the decision rather than its substance, and isn't without its underlying view of the merits, but it's a fascinating report based on lots of interviews and access to confidential documents. The key conclusion: "the legal strategy took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of the [9/11] attacks."

Voter misperceptions:

I think I'm with David Bernstein on this. I suspect that voters of all political stripes have many misperceptions; and of course their misperceptions align with their political views — they're more likely to believe things that they'd like to be true.

My guess, for instance, is that more Democrats than Republicans erroneously think that by not renewing the assault weapons ban, Congress (1) legalized automatic weapons — it didn't, since the ban was only on semiautomatics, guns which are not materially different from guns that have been legal throughout this time — or that (2) assault weapons play a role in the majority or even a large minority of crimes (the actual number seems to be around 4% or less). That's just an example; my point is simply that Republicans have their likely errors and Democrats have theirs.

Any such errors are of course unfortunate; but I have no reason to think that the errors generally are more common among one side than to another. It's possible to show that one side of the political divide is indeed more prone to such errors than the other: You'd need to do a study which includes errors that would seem appealing to each side, and then see whether Republicans fall for the errors that would tempt them, and the Democrats resist those that would tempt them. But I haven't seen any such study, and the study cited in the post below certainly doesn't try to do this sort of balanced analysis.

UPDATE: Kaimi Wenger (Tutissima Cassis) has more.

Those diplomatic Europeans:

The Guardian (U.K.) publishes a columnist's piece filled mostly with abuse of Bush, culminating with "John Wilkes Booth, Lee Harvey Oswald, John Hinckley Jr — where are you now that we need you?" Disgusting.

Thanks to InstaPundit for the pointer.

UPDATE: The Guardian has posted the following at the page formerly associated with the column:

The final sentence of a column in The Guide on Saturday caused offence to some readers. The Guardian associates itself with the following statement from the writer. "Charlie Brooker apologises for any offence caused by his comments relating to President Bush in his TV column, Screen Burn. The views expressed in this column are not those of the Guardian. Although flippant and tasteless, his closing comments were intended as an ironic joke, not as a call to action -- an intention he believed regular readers of his humorous column would understand. He deplores violence of any kind."
Funny sense of humor, that. The original piece doesn't seem to be readily available from the Guardian site, so for people's reference I enclose it below (copied from the google cache, and, yes, I'm pretty certain that this is a fair use). I find it hard to see how in context the closing paragraph is a "joke" or how this instance at least of the column is "humorous." And while of course few people would treat this as "a call to action" as such, it surely seems like an endorsement of violence more than "an ironic joke."
Heady times. The US election draws ever nearer, and while the rest of the world bangs its head against the floorboards screaming "Please God, not Bush!", the candidates clash head to head in a series of live televised debates. It's a bit like American Idol, but with terrifying global ramifications. You've got to laugh. Or have you? Have you seen the debates? I urge you to do so. The exemplary BBC News website ( hosts unexpurgated streaming footage of all the recent debates, plus clips from previous encounters, through Reagan and Carter, all the way back to Nixon versus JFK. Watching Bush v Kerry, two things immediately strike you. First, the opening explanation of the rules makes the whole thing feel like a Radio 4 parlour game. And second, George W Bush is... well, he's... Jesus, where do you start? The internet's a-buzz with speculation that Bush has been wearing a wire, receiving help from some off-stage lackey. Screen grabs appearing to show a mysterious bulge in the centre of his back are being traded like Top Trumps. Prior to seeing the debate footage, I regarded this with healthy scepticism: the whole "wire" scandal was just wishful thinking on behalf of some amateur Michael Moores, I figured. And then I watched the footage. Quite frankly, the man's either wired or mad. If it's the former, he should be flung out of office: tarred, feathered and kicked in the nuts. And if it's the latter, his behaviour goes beyond strange, and heads toward terrifying. He looks like he's listening to something we can't hear. He blinks, he mumbles, he lets a sentence trail off, starts a new one, then reverts back to whatever he was saying in the first place. Each time he recalls a statistic (either from memory or the voice in his head), he flashes us a dumb little smile, like a toddler proudly showing off its first bowel movement. Forgive me for employing the language of the playground, but the man's a tool. So I sit there and I watch this and I start scratching my head, because I'm trying to work out why Bush is afforded any kind of credence or respect whatsoever in his native country. His performance is so transparently bizarre, so feeble and stumbling, it's a miracle he wasn't laughed off the stage. And then I start hunting around the internet, looking to see what the US media made of the whole "wire" debate. And they just let it die. They mentioned it in passing, called it a wacko conspiracy theory and moved on. Yet whether it turns out to be true or not, right now it's certainly plausible - even if you discount the bulge photos and simply watch the president's ridiculous smirking face. Perhaps he isn't wired. Perhaps he's just gone gaga. If you don't ask the questions, you'll never know the truth. The silence is all the more troubling since in the past the US news media has had no problem at all covering other wacko conspiracy theories, ones with far less evidence to support them. (For infuriating confirmation of this, watch the second part of the must-see documentary series The Power Of Nightmares (Wed, 9pm, BBC2) and witness the absurd hounding of Bill Clinton over the Whitewater and Vince Foster non-scandals.) Throughout the debate, John Kerry, for his part, looks and sounds a bit like a haunted tree. But at least he's not a lying, sniggering, drink-driving, selfish, reckless, ignorant, dangerous, backward, drooling, twitching, blinking, mouse-faced little cheat. And besides, in a fight between a tree and a bush, I know who I'd favour. On November 2, the entire civilised world will be praying, praying Bush loses. And Sod's law dictates he'll probably win, thereby disproving the existence of God once and for all. The world will endure four more years of idiocy, arrogance and unwarranted bloodshed, with no benevolent deity to watch over and save us. John Wilkes Booth, Lee Harvey Oswald, John Hinckley Jr - where are you now that we need you?

Related Posts (on one page):

  1. Free speech:
  2. Those diplomatic Europeans:

Saturday, October 23, 2004

Political Ignorance:

Regarding Stuart Benjamin's post below, the study he cites is just one example of the broader problem of political ignorance, well-documented by my colleague Ilya Somin. Since, as I recall, studies show that conservatives are overall better-informed than are liberals, I suspect that the study Stuart cites is an artifact of two factors: (1)Bush supporters are inclined to think well of Bush, Kerry supporters are not. Part of thinking well of Bush is to think that people around the world think well of him and his actions; part of disliking Bush is the opposite. So, when pollsters ask Americans whether they think most of the world supports Bush and his actions, most Bush supporters and most Kerry supporters, being politically ignorant, won't know. The Bush supporters will guess "yes," the Kerry supporters "no." If I'm correct, this is not a reflection of greater ignorance on the part of Bush supporters, just worse guessing. (2) Most people have no idea what global climate treaties, land mine treaties, the International Criminal Court, etc., involve. But they all sound good to an ignorant voter. So, if an ignorant Bush supporter is asked whether Bush supports these treaties, he will likely say yes. That doesn't mean that the Bush supporter has any idea of what these things are, or whether he would actually support these things if he knew about them. Rather, the average Bush voter is as (or perhaps more) rationally ignorant about the content of these international agreements as he is about whether his candidate supports them.

The fact that people tend to be much more knowledgeable about things that they can actually affect as individuals than they are about presidential politics is one good reason for limiting the size and scope of the federal government.

UPDATE: Kaimi Wenger, I've just learned, posted a similar analysis on the Tutissima Cassis blog yesterday.

Friday, October 22, 2004

Outside Bush's Speech (Canton, Ohio):

My student Elliot Fladen reports.

Bush Supporters' Misperceptions:

I just ran across a poll conducted by the Program on International Policy Attitudes (PIPA) at the University of Maryland (a group that calls itself nonpartisan, that apparently is regarded as nonpartisan, and whose board contains both Republicans and Democrats). I find its results stunning. Rather than summarize them, I'll just quote from their press release. The full study (which is fascinating) is available here.

Even after the final report of Charles Duelfer to Congress saying that Iraq did not have a significant WMD program, 72% of Bush supporters continue to believe that Iraq had actual WMD (47%) or a major program for developing them (25%). Fifty-six percent assume that most experts believe Iraq had actual WMD and 57% also assume, incorrectly, that Duelfer concluded Iraq had at least a major WMD program. Kerry supporters hold opposite beliefs on all these points.

Similarly, 75% of Bush supporters continue to believe that Iraq was providing substantial support to al Qaeda, and 63% believe that clear evidence of this support has been found. Sixty percent of Bush supporters assume that this is also the conclusion of most experts, and 55% assume, incorrectly, that this was the conclusion of the 9/11 Commission. Here again, large majorities of Kerry supporters have exactly opposite perceptions.

Steven Kull, director of PIPA, comments, "One of the reasons that Bush supporters have these beliefs is that they perceive the Bush administration confirming them. Interestingly, this is one point on which Bush and Kerry supporters agree." Eighty-two percent of Bush supporters perceive the Bush administration as saying that Iraq had WMD (63%) or that Iraq had a major WMD program (19%). Likewise, 75% say that the Bush administration is saying Iraq was providing substantial support to al Qaeda. Equally large majorities of Kerry supporters hear the Bush administration expressing these views--73% say the Bush administration is saying Iraq had WMD (11% a major program) and 74% that Iraq was substantially supporting al Qaeda.

Steven Kull adds, "Another reason that Bush supporters may hold to these beliefs is that they have not accepted the idea that it does not matter whether Iraq had WMD or supported al Qaeda. Here too they are in agreement with Kerry supporters." Asked whether the US should have gone to war with Iraq if US intelligence had concluded that Iraq was not making WMD or providing support to al Qaeda, 58% of Bush supporters said the US should not have, and 61% assume that in this case the President would not have. Kull continues, "To support the president and to accept that he took the US to war based on mistaken assumptions likely creates substantial cognitive dissonance, and leads Bush supporters to suppress awareness of unsettling information about prewar Iraq."

This tendency of Bush supporters to ignore dissonant information extends to other realms as well. Despite an abundance of evidence--including polls conducted by Gallup International in 38 countries, and more recently by a consortium of leading newspapers in 10 major countries--only 31% of Bush supporters recognize that the majority of people in the world oppose the US having gone to war with Iraq. Forty-two percent assume that views are evenly divided, and 26% assume that the majority approves. Among Kerry supporters, 74% assume that the majority of the world is opposed.

Similarly, 57% of Bush supporters assume that the majority of people in the world would favor Bush's reelection; 33% assumed that views are evenly divided and only 9% assumed that Kerry would be preferred. A recent poll by GlobeScan and PIPA of 35 of the major countries around the world found that in 30, a majority or plurality favored Kerry, while in just 3 Bush was favored. On average, Kerry was preferred more than two to one.

Bush supporters also have numerous misperceptions about Bush's international policy positions. Majorities incorrectly assume that Bush supports multilateral approaches to various international issues--the Comprehensive Test Ban Treaty (69%), the treaty banning land mines (72%)--and for addressing the problem of global warming: 51% incorrectly assume he favors US participation in the Kyoto treaty. After he denounced the International Criminal Court in the debates, the perception that he favored it dropped from 66%, but still 53% continue to believe that he favors it. An overwhelming 74% incorrectly assumes that he favors including labor and environmental standards in trade agreements. In all these cases, majorities of Bush supporters favor the positions they impute to Bush. Kerry supporters are much more accurate in their perceptions of his positions on these issues.

Hold aside for a moment the implications of this poll for the Bush administration. Isn't it disappointing for so many supporters of any presidential candidate to have such misperceptions on issues as central as these?

New Jersey:

Reader Sean Starke writes:

I just got some confirmation that New Jersey will actually be competitive this year: we just got a phone call from the Monmouth County GOP inviting us to a rally tomorrow that Rudy Giuliani will be speaking at here in town (my town, Middletown, lost a lot of people in the WTC). There is no way that they would waste a big gun like him here unless they seriously thought they had a chance to take Joisey...

I don't know how accurate the political estimation is (either my correspondent's or the Republicans'), but I pass it along for whatever it's worth.

Putting Endnotes before Index in Word:

I'm using Word 2002, and my file contains both endnotes — which have to go near the end of the book, not after each chapter — and an index. I'd like, though, to put the endnotes as the second-to-last item, and the index after them as the last. Does anyone have any suggestions for that, other than "switch away from Word"? If you do, please let me know at volokh at Many thanks!

UPDATE: Forgot to mention this, but I can't use the "put endnotes at the end of the section" feature, and then have the body of the book be one section and the Index be a separate one -- I already have each chapter as a separate section, and I need to stick with that.

"Abortion is Homicide" Sweatshirt:
An administrator at Culpeper County High School pulled [14-year-old Ellen Sonifrank] out of her second block class [on Sept. 27] and took her to see Principal Eric Porter. The principal asked the freshman to remove a sweatshirt displaying a message that upset one of her classmates.

The front of Ellen's black, hooded sweatshirt reads, "Abortion is homicide." The back reads, "You will not silence my message/You will not mock my God/You will stop killing my generation."

After Dr. Porter expressed concern about the harshness of the word "homicide," Ellen reluctantly complied with his request. . . . But the outspoken teen reconsidered the situation and wrote a letter that The Star-Exponent published Tuesday, Oct. 12, defending her right to display the message. . . .

The high school principal said he must weigh the students' First Amendment right to free speech against the responsibility to provide an environment free of disruption.

"What is school for?" Dr. Porter reflected. "Is it where you come to express yourself, or where you come to gather as much information as you can to prepare yourself for the future?" . . .

If school officials continue to prohibit Ellen's anti-abortion message, the teen said she [may file suit] . . . . "I'm going to take them to court for taking away my freedom of speech," the teenager said. . . .

I appreciate Dr. Porter's concern, but the Supreme Court's answer (right or wrong) is pretty clear: Kids are allowed to express their political views, so long as they do it without profanity, until there's concrete reason to think that the expression would cause material disruption. The benchmark is set by Tinker v. Des Moines Indep. School. Dist (1969), which upheld students' rights to wear black armbands as an anti-Vietnam-War protest, even though the armbands apparently caused some distraction and upset.

Given that, there'd have to be some pretty significant evidence that this sweatshirt actually caused more disruption than that — for instance, fights or some such — or at least seems very likely to cause such disruption. I doubt that there is such evidence, and in any event the news story doesn't mention any such evidence.

Thanks to Becky Dale for the pointer.

Stranger Takes Over Woman's House:

You'll have to read it to believe it. (Hat tip: Talkleft.)


A reader asks, apropos the post on last week's Supreme Court decisions, what a "CVSG" is. "CVSG" means "Call for the Views of the Solicitor General." If the Justices are considering whether to grant a petition for certiorari (i.e., to agree to hear a case), and they think the case raises issues on which the views of the federal government might be relevant -- but the federal government is not a party, and hasn't filed a friend of the court brief itself -- they may invite the Solicitor General to file a brief expressing the U.S. government's views. This invitation is naturally treated as a command by the Solicitor General (who is often just called the SG).

More Odd Talk of "Moral Relativism":

Those who read the posts below will note that I criticize Cal State Long Beach Prof. Clifton Snider; in that, I agree with Prof. Mike Adams, and appreciate his having brought up Prof. Snider's conduct. And yet this argument by Prof. Adams strikes me as mistaken:

You have a serious problem on your hands, Clifton. The problem originates with your apparent adoption of a philosophy of moral relativism. Like your hero Oscar Wilde, who said "I never approve, or disapprove, of anything now" you think that your brand of "tolerance" makes you better than others. But you fail to see the logical contradiction in your position.

Oscar Wilde also said this about making moral judgments: "It is an absurd attitude to take towards life. We are not sent into the world to air our moral prejudices. I never take any notice of what common people say, and I never interfere with what charming people do."

Oscar Wilde wasn't bright enough to recognize that calling something "absurd" and labeling some people as "common" and others as "charming" are forms of moral judgment. Nor do you seem to possess the intellectual firepower to recognize that referring to my opinions (on "your" website) as "vindictive, rude, unprofessional, inappropriate, unauthorized, and illogical" means that you are engaging in moral disapproval. Whether you like it or not, you have made a series of moral judgments. . . .

This argument that the Leftist excesses in the academy stem from "moral relativism" is one I've heard often — but I wonder why we should think that moral relativism is the problem. In fact, as Prof. Adams points out, Prof. Snider's error is that he's too morally dogmatic: He's so wedded to his position being morally right that he blinds himself to the possibilities that (1) he's mistaken, (2) even if he's correct, others may disagree with him without being bigoted or foolish, (3) in any event, it may be wrong for him to use his English class to spread his moral views about the Bush Administration or whatever else.

Nothing that I've seen in Prof. Snider's e-mails to Prof. Adams, as Prof. Adams has quoted them, or on Prof. Snider's site, suggests that "moral relativism" is the cause of Prof. Snider's mistakes. (He has indeed written about Oscar Wilde, but that doesn't tell one much, it seems to me.) As I've discussed in my "moral relativism" post, I don't find much reason to think that "moral relativism" is at the root of the errors of liberalism. Likewise, while the academic Left might embrace moral relativism more often than the rest of the liberal and Left movement (I'm not sure of this, but that's my sense), I don't think that the intolerance of some on the academic Left "originates with [their] apparent adoption of a philosophy of moral relativism." In any case, I see no evidence of such a connection here.

The Foundation for Individual Rights in Education,

an organization whose work in fighting campus speech codes I have long admired, writes: "Thanks to a profoundly generous $100,000 challenge grant from the John Templeton Foundation, your gift will be matched in our campaign to restore the core American value of freedom of speech to our nation's colleges and universities." If you'd like to donate, go here; for details, including tax deductibility, see here.

Best Notation on Junk Mail: Written in red on an envelope I found in my Gags file, sent by Leonard Davis at the Davis Insurance Agency:

If you throw this in your waste-
basket unopened, a capsule
of water inside will break,
spilling onto a dehydrated
gorilla. He will then jump out
of the envelope and hug you
to death.

Playboy's new strategy for exciting readers:

quoting law school casebooks. Matt Rudary reports that p. 59 of the November 2004 issue of Playboy quotes (or, to be precise, paraphrases, but using quotation marks) a problem from the 2004 Supplement to my First Amendment textbook. I had blogged about it here, and I think the magazine picked it up from the blog. Unsurprisingly, this was an obscenity problem (though I hasten to say not an obscene one).

Questioning: Cal State Long Beach Professor Snider, the subject of the posts below, also makes the following claim on the page that describes the papers he wants his students to write. Recall that the papers are supposed to contain well-reasoned argument supported by the evidence:
Dr. Clifton Snider
English 100
California State University, Long Beach

Notice to my students: someone has published illegally in what purports to be an "article" material from my web site, that is, portions of my assignments. The article, among many misrepresentations, implies I require that you write about certain topics. As you know, you have always had a wide choice of topics to write about in your papers. The same is true for the Argument Paper. I believe in and practice academic freedom.*

. . .

*According to university policy, passed by the Academic Senate on 28 February 2000, the "primary responsibility [of professors] to their subject is to seek and to state the truth as they see it." As far as academic freedom goes, "the special nature of universities protects professors from being question[ed] about their lectures" (CSULB web site).

Let's look at Prof. Snider's use of evidence here. I searched for the quote he gave, and I did find it on a "CSULB web site": It's "The special nature of universities protects professors from being questions about their lectures," and it's at a page labeled "Lecture Notes: Academic Freedom." My guess, from the URL of the page (, is that it's maintained by Prof. Craig Smith. I'd imagine that a typical reader seeing the notation "CSULB web site" would assume that Prof. Snider is referring to an official CSULB web site (did you assume that when reading it?), not the opinions of another professor, no matter how respected he might be. It would seem to me more accurate to cite it as "Prof. Smith's web page," not "CSULB web site." (My apologies if Prof. Snider is pointing to some other site, but the page I describe below is the only one I found, and Prof. Snider certainly didn't link to any other page.)

But much more importantly, consider the context in which Prof. Smith makes this statement:

II. The special nature of universities protects professors from being questions about their lectures.

Sweezy v. New Hampshire (1957) the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. In holding for the teacher, the Court stressed the "essentiality of freedom in the community of American universities," and warned against "imposing any strait jacket upon the intellectual leaders in our colleges and universities."

Sweezy did hold that university professors have some immunity from being coercively questioned by government bodies. Sweezy was, after all, prosecuted for refusing to answer questions that he was ordered to answer by a state legislative committee.

Rendering this as "the special nature of universities protects professors from being question[ed] about their lectures," in the process of protesting criticism by nongovernmental critics, strikes me as quoting out of context. Sweezy did not say anything about professors' being questioned by TownHall columnists, or by their students; as Prof. Smith's Web page points out, it spoke of a rather different sort of "question[ing]" — coercive questioning by the government, with the threat of legal punishment for silence. To press the "protects professors from being question[ed]" language into the very different context of questioning by columnists, without any acknowledgment that the quote originated in a very different context, strikes me as improper use of evidence. I would expect that Prof. Snider would mark down any paper that quoted material out of context that way.

Finally, even setting aside the use of evidence, does Prof. Snider really believe that academic freedom protects academics from being questioned — which is to say, criticized — for what they teach? Wouldn't Prof. Snider's critic (as it happens, himself an academic) himself have a First Amendment right to criticize Prof. Snider? Free speech is speech free of government restraint, not free of others' exercise of their own freedom to criticize. I would have thought that Prof. Snider, with his asserted respect for freedom, would appreciate this.

"Civilized, rational debate":

Apropos the post below about Snider vs. Adams, check out Prof. Snider's guidelines for student papers in his Cal State Long Beach class (Adams also points out other problems with Snider's guidelines, but I want to stick to this):


I. Purpose: to persuade or at least to create tolerance for your point of view on a controversial issue; also to acknowledge the opposing side of the issue. . . .

Subjects to Avoid . . .

4. Topics on which there is, in my opinion, no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science (for example, female circumcision, prayer in public schools, same-sex marriage, the so-called faith-based initiative, abortion, hate crime laws, the existence of the Holocaust, and so-called creationism). For example, see Terrence McNally's "Just a Love Story," Los Angeles Times, 13 February 2004: B15. McNally correctly concludes that those who oppose same-sex marriage do so for one reason: homophobia. "Homophobia," as Robert Goss points out, "is the socialized state of fear, threat, aversion, prejudice, and irrational hatred of the feelings of same-sex attraction" (Jesus Acted Up: A Gay and Lesbian Manifesto, New York: HarperSanFrancisco, 1993: 1). In other words, homophobia is to gays and lesbians what racism is to people of color. Neither homophobia nor racism can be tolerated in civilized, rational debate; therefore, I will not accept either as arguments, however disguised, in your papers.

So in other words, the following arguments are inherently "chauvinistic, religious, or bigoted" -- not just mistaken or incomplete (necessarily, since they're short summaries), but chauvinistic, religious, or bigoted:

  1. "Hate crimes laws are counterproductive, because they reinforce identity politics, and make racial groups more aggrieved at each other rather than less. They are also morally misguided, because assault or murder should be treated the same whether it's motivated by racism or sadism. Finally, they risk unduly interfering with people's free speech because they will often require prosecutors to comb through defendants' political statements and associations."

  2. "Faith-based social programs should be entitled to be treated on an equal footing with non-faith-based social programs. If government money is spent on drug and alcohol rehabilitation, and a religiously themed program seems likely to do a good job at providing such rehabilitation, then it should get rehab funds just like a secular program should."

  3. "Abortion should be opposed, because I believe -- together with liberal atheist Nat Hentoff that there is something to the argument that '[b]ecause abortion had become legal and easily available, . . . infanticide would eventually become openly permissible, to be followed by euthanasia for infirm, expensive senior citizens.'"

  4. "In the last several decades, we've been experimenting a great deal with longstanding family institutions. We've liberalized divorce laws, destigmatized illegitimacy, destigmatized premarital sex, and more. Some of these changes may have been good, others may not have been but we ought to be cautious about implementing more such changes."

  5. "Religion is a useful and important means of social control. Prayer in public schools helps teach students to be more obedient and moral, whether or not God exists."

  6. "The Establishment Clause has been badly misread by the courts; it should never have been interpreted to apply to state and local governments. Local majorities should thus be entirely free to implement prayer in public schools, should they wish to, so long as students aren't legally punished for not participating."

I could add more examples, but are they really needed? I stress again that the point isn't that all these arguments are persuasive -- I don't agree with all of them myself. Rather, the point is that a professor who holds the "opinion [that there is] no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science [on these topics]" either

  1. is strikingly intolerant of reasonable, thoughtful, civilized argument that expresses viewpoints with which he disagrees, or

  2. has not given much serious thought to the subjects.

Neither is a quality we should much appreciate in our university professors.

Related Posts (on one page):

  1. Questioning:
  2. "Civilized, rational debate":
  3. Complaint About Fisking:
Complaint About Fisking:

Duncan Frissell points to an interesting controversy:

Your reposting of the Law of Fisking coincided with an actual threat to sue for copyright infringement in a Fisking situation involving one of your fellow California profs from CSU Long Beach. Mike Adams — a criminal justice prof from North Carolina and a conservative columnist — has been going back and forth with a guy at CSULB named Clifton Snider.

In the first post, Adams extensively quotes research paper guidelines from Snider's composition class . . . .

In the second post, Snider sends Adams a demand letter as follows:

. . . Dear Mike S. Adams,

On your web site you are using my copyrighted material from my web site (and misrepresenting it) without my permission. The material is meant for my professional work only. Stop using it now.

Thank you.

Clifton Snider, Ph.D.

Then Adams follows up . . . .

I'm pretty sure that Adams' actions in quoting Snider's post are solidly fair use: He's quoting material in order to criticize it, and he's doing it in a way that has no effect on the market value of Snider's Web site (which is nil). And though Adams is using a good deal of Snider's text, such use is necessary in order to make Adams' critical point.

Adams' actions in quoting Snider's e-mail are a little closer to the line; the unpublished nature of Snider's e-mail (unpublished, that is, by Snider) cuts against fair use. Nonetheless, on balance I think the critical (as well as news reporting) nature of Adams' use, and the shortness of Snider's unpublished e-mail, cut in favor of fair use as well.

In any event, from what I see on Adams' site, Snider has no case, and Adams is entirely within his rights in ignoring Snider's demands.

Related Posts (on one page):

  1. Questioning:
  2. "Civilized, rational debate":
  3. Complaint About Fisking:
Crime-Facilitating Speech Talk at Stanford:

I'll be giving a talk about my Crime-Facilitating Speech article at Stanford Law School this coming Monday (the 25th), 12:30 to 1:30 pm, in room 180. It's open to the public, and they'll even be serving lunch.

UPDATE: Just to be clear, it's a (Crime-Facilitating Speech) talk, not a crime-facilitating (speech talk).

Paperback Edition of You Can't Say That!

The paperback edition of my You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws—the Cato Institute's all-time best-seller* —will officially be released on Monday, but you can already get it from Amazon for a mere $10.36, or from one of Amazon's Marketplace dealers for under nine bucks. If you already have a copy, I'm sure you have friends and relatives who don't (Christmas is just around the corner), not to mention that you may want to donate a copy tolocal libraries whose book budgets have been cut because of Bush's tax cuts for the rich.**

*With the exception of the U.S. Constitution. Cato has sold millions of copies of its edition of the Constitution.

**O.k., I made that last part up.

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.