Saturday, December 11, 2004

SNL's New Bit: "Don't Forget Bill O'Reilly is Disgusting".--

As part of Saturday Night Live's Weekend Update tonight, Tina Fey did a bit in which she recalled some of the misconduct that Andrea Mackris accused Bill O'Reilly of committing. Fey ended by saying, "Don't Forget That Bill O'Reilly is Disgusting," with the screen filled with a title with those words.

Although it might have been a onetime bit, I have a suspicion that this could be a recurring riff, with more details from Mackris's now withdrawn complaint coming out each week. Even if FOX News doesn't hold O'Reilly accountable, SNL might just do that.

Of course, we do not know whether Mackris's allegations of what O'Reilly said to her are true, but if O'Reilly denied the words attributed to him, I missed it. And, of course, FOX News has the power to get to the bottom of the facts if they choose.

Debate on Cyber-Trespass Law (With Ramifications for Spam):

There's a RealPlayer recording of a debate on this subject, between Richard Epstein and Eben Moglen, here, and a post here. The debate was sponsored by the Columbia Law School Federalist Society.

Trademarking "Scholar": Slashdot links to a press release announcing a new trademark lawsuit:
  The American Chemical Society filed a complaint on Dec. 9 against Google Inc. in U.S. District Court for the District of Columbia. The complaint contends that Google's use of the trademark "Scholar" for its Google Scholar literature-search engine constitutes trademark infringement and unfair competition.
  A beta version of Google Scholar ( debuted in mid-November. The search service allows users, at no cost, to "search specifically for scholarly literature, including peer-reviewed papers, theses, books, preprints, abstracts, and technical reports from all broad areas of research," according to a Google website.
  The ACS complaint contends that Google's use of the word scholar infringes on ACS's SciFinder Scholar and Scholar trademarks and constitutes unfair competition. SciFinder Scholar, a desktop research tool designed for academic scientists, was launched six years ago. ACS's Chemical Abstracts Service estimates that about 1,000 colleges and universities have bought the service, which provides access to all of CAS's databases, including information on journal and patent references, substance information, regulated chemicals, chemical reactions, and chemical supplier information.
I don't remember enough about trademark law to comment intelligently, at least without doing more research than I feel like doing. But this sounds pretty fishy to me.
Free Speech in Wartime:

Rutgers-Camden Law School and the Constitution Center are organizing a very interesting sounding conference on this subject. It's inspired by University of Chicago Law Professor Geoffrey Stone's recently published book, Perilous Times: Free Speech in Wartime (Norton, 2004), and it will include many noted experts, including Federal Third Circuit Judge Michael Chertoff and First Amendment lawyer Floyd Abrams. Details are here; admission is free, though you must register.

Leiter on the Top 20 Legal Thinkers:

Brian Leiter, who knows a few things about rankings, describes the Legal Affairs Top 20 Legal Thinkers poll as a "meaningless publicity stunt":

The list of candidates is--to put the matter gently--absurd, not because there aren't substantial "legal thinkers" on the list (there are some), but because there are far too many on the list who aren't leading legal thinkers by anyone's lights, and some who aren't even capable of thinking based on any evidence I've seen.

Hyperbole aside, this seems basically right. The list of nominees is a list of well-known academics, judges, and journalists - not a list of top legal thinkers. This raises an interesting question, though: What does it mean to be a top legal thinker? And maybe another: Why the fascination with rankings?

  I would be interested in reading what you think about this; I have enabled comments.


The newswire just to the right of this post on the VC page has a story about's odds on the next Supreme Court Justice. The actual odds are posted on here. Current favorites are Fourth Circuit Judges Luttig and Wilkinson.

According to the story, however, the betting lines will not adjust based on actual wagering, so it is difficult to read much into the reliability of these odds. Further reason for skepticism about the value of the odds is that the pool of potential chief justices, for instance, only includes sitting Associate Justices.

On the other hand, if the purpose was to get free publicity for, it certainly has worked (as this post itself evidences).


When I clicked on the post, it didn't seem to take me directly to the Supreme Court proposition. The full odds are reproduced here, although you obviously can't place a wager there.


Stuart Buck raises some questions about puzzling inclusions and exclusions from the Legal Affairs Top 20 list voting.


A new entrepreneurial venture from some scholars of entrepreneurship. The BizFems Speak! blog is no more, but the chief BizFem Christine Hurt of Marquette Law School has moved over to team up with Gordon Smith of the University of Wisconsin Law School at the Conglomerate. They describe their founding:

Welcome to the new Conglomerate blog from Gordon Smith and Christine Hurt, two corporate law professors in Wisconsin. For the past 18 months, Gordon has been blogging at Venturpreneur. Meanwhile, in addition to a guest blogging stint on Venturpreneur this past summer, Christine has been blogging at Biz Fems Speak! Those two blogs are gone now, though the Venturpreneur archives will remain on this site, and the Venturpreneur url is hanging around for a few more days while we set up our new home. Both Christine and Gordon will be blogging here, and you can expect a quirky mix of entries about business, law, Wisconsin, legal education, and whatever else strikes our fancy (including, of course, cheese for Gordon).

Although this now knits together two of the state of Wisconsin's leading corporate law scholars, rumors that they will change the name of their blog to "The Cheeseheads" and write exclusively on Green Bay Packers news appears to be untrue.

Friday, December 10, 2004

Bainbridge Blasts Chait: Jonathan Chait wrote a rather dismissive LAT column on why there are so few conservatives in academia. Stephen Bainbridge, who has a rather different (and more accurate — but not just because he agrees with me) assessment from within the academy, takes Chait to task for "peddling shopworn lies." Specifically, Bainbridge notes that neither of Chait's explanations — that few conservatives (and libertarians) desire an academic career and that folks on the Right are less educated — can bear up under scrutiny.

Bainbridge cites current evidence that the academy can be quite hostile to folks with right-leaning views: the "controversy" over Jack Goldsmith's appointment at Harvard. Whether or not one agrees with Goldsmith's work, there is no question that he is among the top scholars in his field — and well deserving of a Harvard appointment. Yet some of his new colleagues (thankfully a minority on the faculty) are aghast at his views and wish he weren't there. Professor Goldsmith has enough of a reputation to weather such attacks, but more junior folks are often not so lucky.

In my own experience, the networking effects Professor Bainbridge describes and other unconscious biases are the dominant obstacles to conservatives, libertarians, and others outside of the academic mainstream. I also believe many conservatives are too quick to blame politics for their own academic career disappointments. Yet real bias can rear its ugly head. When I was an undergrad at Yale, I learned from a very liberal professor that one of his colleagues was systematicly black-balling right-leaning grad student applicants in their department. I have also heard law professors express opposition to job candidates because they clerked for the "wrong" Supreme Court Justice and suggest that job candidates cannot be intelligent if they hold certain conservative views.

I have personal experience with this sort of thing too. When I was on the job market, I was explicitly told by individuals at several schools that I would not be interviewed because of opposition to my politics on their hiring committees. Things worked out for me — I'm quite pleased with my current academic gig, believe that the liberal dominance of the academy will not prevent my future academic success, and expect (hope) to let my pseudonymity lapse in the relatively near future. Alas, it is clear to me that there are some who are not so lucky.

Related Posts (on one page):

  1. Bainbridge Blasts Chait:
Bill O'Reilly criticized by judge.--

A judge criticized by Bill O'Reilly responded:

It was the third time that O'Reilly has attacked the judge on TV. Months ago, O'Reilly vowed to make sure Rapkin was not re-elected — when Rapkin announced he was retiring at the end of this year, O'Reilly took some of the credit.

Wednesday night's salvo was over another Rapkin ruling. Last month the judge overturned the city's camping law, which allowed police to arrest hundreds of homeless people.

O'Reilly let him have it.

"Now tomorrow, when a homeless person in Sarasota kills a little girl, then Rapkin gets that on his sheet, too?" O'Reilly asked a Sarasota police lieutenant on "The O'Reilly Factor."

Rapkin, reached a few hours before the show at a private retirement party at a Main Street bar and restaurant, said O'Reilly has "got a lot of nerve" to attack him.

"Somebody who sexually harasses women and then pays millions of dollars in a settlement to get out of it has no place criticizing me," said Rapkin.

While the charges that O'Reilly was being blackmailed were at least plausible, so was Andrea Mackris's account alleging that she was repeatedly harassed by O'Reilly. Did FOX investigate O'Reilly? Given the seriousness of the charges, they should have.

If FOX did investigate, then only if the charges were untrue should there be no serious discipline (of course, not all serious discipline is public).

If Mackris's account is true (and on the surface it seemed to be based in part on transcripts of phone conversations), then I don't see how FOX News could fail to take action against O'Reilly.

I understand that this was not on-air misconduct as in the Dan Rather affair, but (if true) it was extremely serious misconduct by one FOX employee against another employee of FOX. (Tip to Instapundit.)


I was surprised (and delighted) to see that the Washington Times today heavily discusses Wine Wars in a house editorial on the wine cases. They correctly summarize my argument:

But as Todd Zywicki, a George Mason Law School professor, points out in "Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine," there are a few problems with this interpretation. First, Section 2 never mentions the dormant Commerce Clause. To believe that Section 2 only refers to the Commerce Clause is not only a distortion of the intent of Section 2, but goes against prior court interpretations of what Section 2 actually grants to the states. Mr. Zywicki refers to a 1964 ruling that said, "To conclude that the Twenty-first Amendment has somehow operated to 'repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would ... be an absurd oversimplification." Further, the intent of the entire 21st Amendment was to return the country to the careful balance of state alcohol regulation it enjoyed before Prohibition. It was not meant to give the states protectionist powers over their alcohol industries, as it is now being used.

Good News:

Marty Lederman reports that Chief Justice Rehnquist plans to administer the oath of office to President Bush on Inauguration Day.

Supreme Court grants certiorari in the Grokster case:

My colleague Neil Netanel reports that the Supreme Court has agreed to hear the Grokster case, and will thus again consider when the distributors of a product can be held liable on the ground that the predominant uses of the product are copyright infringement. (The last time the court considered this was in Sony v. Universal, the VCR case.)

UPDATE: Tim Wu predicted it. Also, here's a post of mine on the Ninth Circuit decision that the Court will now be reviewing.

The Palsgraf Curse: The New York law Journal reports:
  The explosion at a Long Island Railroad station that injured Helen Palsgraf not only made her family name a household word — at least in households with lawyers — it also began what some of her descendants call a curse.
  In the eight decades since the New York Court of Appeals in Palsgraf v. Long Island Railroad outlined the two competing theories of proximate cause, a branch of the Palsgraf family has been beset by bad luck, serious injuries and losing lawsuits, just like their matriarch, Helen Palsgraf.
Video Voyeurism Prevention Act: The Associated Press reports that this week the Senate approved by voice vote a new privacy law, the Video Voyeurism Prevention Act, that the President is expected to sign shortly. The law basically prohibits intentionally taking a picture of someone naked or in their underwear, without their consent, if at that time the person reasonably expected privacy. In other words, no using cameraphones in locker and shower rooms.

  I hadn't heard a peep about this law — so to speak — which I suppose reflects the absence of a Peeping Tom lobby on Capitol Hill. You can find the text of the bill here. Notably, the law will only apply "in the special maritime and territorial jurisdiction of the United States." That phrase is defined in 18 U.S.C. 7, and basically ends up being a complicated way to say "on federal property." Congress could have been much broader here: they could have made the conduct a crime when it occurs anywhere in the U.S. so long as the image travels in interstate commerce. The much narrower approach means that this law is mostly designed to apply on military bases and on federal parks. Also, since the crime is only a misdemeanor, not a felony, it is especially unlikely to be prosecuted very often. My guess is that there will be a handful of prosecutions a year, tops.
Chemerinsky's Not Alone:

Stuart Buck reports that Senator John Cornyn (R-TX) has caught lots of folks flip-flopping on the use of filibusters.

Related Posts (on one page):

  1. Chemerinsky's Not Alone:
  2. Chemerinsky's Changed Tune on Filibusters

Is the new academic group blog Left2Right turning into a liberal Volokh Conspiracy? Majikthise thinks so. I won't believe it until I see multiple links to You Can't Say That! or its L2R equivalent. If it happens, though, I say we merge — it seems the conspiratorial thing to do.

What We Think.

I love it when columnists or other pundits tell me what I think. Here's the sort of thing I'm talking about. Michael Wilbon and Mike Wise are two sports columnists at the Washington Post (and darn good ones, too - the Washington Post has many flaws, but it also boasts an extraordinary array of fine sportswriters). In a recent column about baseball's steroid scandal, Wilbon wrote that:

" . . . what intrigues me now is the lack of public outrage regarding all of this. . . . I'm looking at e-mail after e-mail expressing emotions that overwhelmingly range more from sadness to indifference. . . . People in and around Washington were much more exercised on the issue of benching Mark Brunell a couple of weeks ago than they are over the news or the implication that Giambi, Bonds and Jones have all cheated their sports and lied about it, which leads me to wonder how big a scandal this is . . ."

And Wise was even more concerned about "our" indifference to the revelations of steroid use:

"The steroid issue is not something friends call breathlessly to talk about. For months it has been a media-driven story, fueled by dogged journalists committed to facts rather than opinions. They were not on a witch hunt; they felt the public needed to know. The terrible thing about their pursuit of the truth is that the public barely wants to know. They don't care how Barry Bonds hits baseballs into McCovey Cove; they care that he does it. . . . That's what the BALCO investigation and the grand jury testimony leaked in the San Francisco Chronicle this past week is ultimately about. . . . We thought we knew, but we didn't. And when our beliefs were challenged by irrefutable evidence -- at least embarrassing, if not damning, in Bryant's case -- we turned the channel. We reached for the box scores. We believed what we wanted to believe."

Is that so? Now, I'm actually interested in hearing what Wilbon or Wise thinks about all of this steroid stuff - that's why I read their columns. But I'm really not interested in hearing what they think I think (or, by extension, what "the public" thinks), mostly because I cannot imagine how they could have the faintest idea what I (let alone "the public") think. Maybe I'm making too much of this - but I think this is one of those things that, when you start looking for it, pops up all over the place, in all sorts of contexts - stories or columns or opinion pieces that are not about "Something that Happened" but about "Our Reactions to the Thing that Happened." And it annoys the hell out of me, every time I see it.

Thursday, December 9, 2004

Creators Comments on Francis Column:

The Creators Syndicate felt that a Sam Francis column complaining that recent episodes in popular culture celebrate interracial relationships was acceptable, according to this report;

"Did I disagree with the column? Yes," responded Anthony Zurcher, a Creators editor who saw the Francis piece before it was syndicated. "Did I feel it was so reprehensible that it shouldn't have been sent out? No."

Zurcher also said he did not know how many of the 22 papers that subscribe to Francis' columns opted not to run the offending (and I would say, quite offensive) piece.

Related Posts (on one page):

  1. Creators Comments on Francis Column:
  2. The Syndicated Racism of Sam Francis:
Vote For the Most Influential Legal Thinkers in America!: Larry Solum (Legal Theory Blog), Eugene Volokh (Volokh Conspiracy) and Glenn Reynolds (Instapundit) have been nominated for the Top 20 Legal Thinkers in America by Legal Affairs. Larry and Eugene are nominated in the "Academics" category, while Glenn is nominated in the "Writers/Commentators" category. According to Legal Affairs: "Your job is to vote for your top five, plus a favorite who's not on the list, by March 1, 2005." You can place your vote by clicking here.

Update: Immediately upon posting this, I saw that Orin beat me to the punch, though much more sardonically.

Related Posts (on one page):

  1. Leiter on the Top 20 Legal Thinkers:
  2. Vote For the Most Influential Legal Thinkers in America!:
  3. Top 20 Legal Thinkers:
Press Coverage of Ashcroft v. Raich: A lot has now appeared in the press concerning oral argument in Ashcroft v. Raich, including favorable editorials in both The New York Times and Boston Globe. Two particularly insightful analyses appeared today that I thought merited a link. The first, Feds v. Meds, from the Los Angeles City Beat explores the following theme:
The case is a mighty test of states' rights, which this court has previously favored. But the barrage of questions the justices fired at Raich's lawyer, Boston University professor Randy Barnett, revealed more than the possible end of their so-called "federalist revolution." They revealed the interior machinations of a kind of regulatory fever dream in which no government agency will confront the increasingly embarrassing mass of scientific evidence in favor of pot's accepted use as medicine.
In The Supremes Take a Hit, The Austin Chronicle examines the internal contradictions of both ends of the Court:
Indeed, the case will test the court's predictable range of opinion. The more conservative judges - like Rehnquist, who penned the Lopez and Morrison decisions, and Justice Antonin Scalia, who voted with the majority in the recent commerce cases - will be asked to extend their staunch federalist positions to activities they seem predisposed to dislike. Similarly, the court's more liberal justices, like Justice John Paul Stevens, would likely endorse the affirmation of broader federal regulatory authority than his conservative colleagues - but will he do so at the very private cost of the health and well-being of Raich and Monson? On Nov. 29, the contradictions of the court's competing values took center stage, creating a very odd hour of oral arguments.
Lame: Judge Charles Pickering, recess appointee to the Fifth Circuit, has taken the announcement of his retirement as an opportunity to run down the list of talking points used by his supporters and launch some zingers against the opponents of his nomination. Pickering got a raw deal; in classic Washington fashion, he became a convenient political football used to rehearse some tactics in preparation for a future Supreme Court opening. Still, remarks like that don't help his legacy.

The Real Threat to Libraries:

While many librarians are worried about the Patriot Act, they should be worried more about a much more serious threat: The Internet.


Another interesting article by one of my colleagues is a forthcoming article by my colleague Kathy Zeiler, co-authored with the legendary Charlie Plott, in the American Economic Review on the so-called "endowment effect." The "endowment effect" has emerged as a staple of behavioral economics, especially in critiques of the real-world validity of the Coase Theorem. Plott and Zeiler conclude, "The primary concluion that one derives from the data reported here is that any observed WTP-WTA gap is not a reflection of a fundamental feature of human preferences." Instead, they conclude that the results of studies that find a WTP-WTA gap are an artifact of the particualr experimental procedures that are used in the studies, and thus are extermely sensitive to changes in experimental conditions and procedures, rather than a stable characteristic of individual preferences.

The article also has a very useful and comprehensive bibliographic collection of all of the studies that have been done on the endowment effect and the methodologies used in them.


It has been called to my attention that many readers don't know what the "endowment effect" or the "WTP-WTA" gap is. The endowment effect postulates that people place a different value on a given item depending on whether they possess it or do not, as reflected by the WTP-WTA gap. Thus, if I am given a generic mug, it is postulated that I might only be willing to sell it to someone else ("Willing to Accept") for, say, $5. But if you are given the exact same mug, I might be willing to pay only $2 to buy it from you. It is argued that there is, therefore, a persistent gap between what I am willing to accept to alienate the mug on one hand, and what I am willing to pay on the other hand, and that this difference is explained by the mere coincidence of how the intial property right is allocated. As noted, the finding of an "endowment efffect" has been used to criticize the Coase Theorem, in that it suggests that even where transaction costs are low, parties will not necessarily bargain to allocate resources to their highest-valued use because the endowment effect suggests that parties will not be able to easily bargain-around the initial rights allocation. The study I cite concludes that there is in fact no endowment effect and no robust finding of a systematic gap that leads to a higher willingness to accept than willingness to pay for a given good.


I readily admit to being a sucker for anything that combines my two passions in life--law and sports. Thus, I commend to you, a recent paper by my colleage Steve Goldberg commenting on the criteria for choosing Supreme Court Justices. Just as winning the Heisman Trophy does not seem to predict which college football players will go on to succeed in the NFL, Goldberg notes that serving as a judge on a lower federal court is not a reliable predictor of greatness on the United States Supreme Court. Very interesting thesis and especially important given the tacit assumption by most lawyers and court-watchers that Supreme Court Justices should be chosen from the ranks of lower courts.

Top 20 Legal Thinkers: Legal Affairs is having a contest to see how many people will visit their website to help out friends, former professors, favorite bloggers, and ideological compadres — er, rather, to determine who are the Top 20 Legal Thinkers in America.

  Specifically, the poll asks you to vote for "the country's most influential and important legal thinkers—the ones whose ideas are pushing the law forward (or backward, as the case may be)." Of course, if "the law" means legal doctrine, then the 9 members of the Supreme Court are the winners. Being "Supreme" will do that. But I don't know if that's what they have in mind.

  The bloggers on the list of 125 nominees include blogfather Eugene, Lawrence Solum, Jack Balkin, Glenn Reynolds, Tom Goldstein, and (just in time) Richard Posner. To see how Legal Affairs picked its nominees, see here. Link via Howard, who isn't on the list himself but perhaps should be.
Institutions and Individuals:

Democracy Project writes:

Before last spring, Miller planned on retiring to his home town of Young Harris to teach at the eponymous junior college there. He's a YHC graduate and former professor at the small Methodist school, which was founded in 1886 by a circuit-riding minister. But in May, David Franklin, a history professor there whose wife is academic dean, penned a vitriolic letter to Miller that was obtained by the Atlanta Journal-Constitution. In the letter, Franklin, from whom I took a Western history survey course during his first year there, 1979/80, said:

"You, Zell Miller, are a disgrace to your city, your county, your state and your country. Your attack upon the U.S. Senate that you sit in now was so unpatriotic it boggles the imagination."

In response, Miller declared that he wouldn't teach at the College, as the letter "makes it abundantly clear that I would not be, shall we say, warmly welcomed." And: "I have long put up with this kind of vitriol in the political world but I am not going to at my alma mater." . . .

[S]o politicized has higher education become that even the smallest academic communities now employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs -- even if he also happens to be the school's most distinguished alumnus. . . .

Can there be any doubt that, had Miller spoken out against the Bush administration, his place in academe would have been assured? After all, Max Cleland, Georgia's embittered ex-Senator, found his liberal credentials far more useful in landing an academic post than in maintaining his Senate seat in a Red State. Viewed from that perspective, Miller's ostracism from his alma mater is a badge of honor. But for Young Harris College, it remains a shameful stain.

InstaPundit points to this, writing "Zell Miller is joining a law firm, because apparently his alma mater, where he had been scheduled to teach post-retirement, decided it didn't want him."

Now there might be more to the story than what Democracy Project wrote, but so far it seems like one professor harshly criticizing the Senator. In fact, it's one professor exercising his academic freedom in harshly criticizing the Senator.

I think the professor was wrong to do so (both in tone and on the substance), but absent some more evidence, it's hard to see how his speech could be imputed to the college as a "shameful stain" on the institution. Nor can I see how "academic communities" could properly make sure that they don't "employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs." And while it's too bad that some faculty members are rude, neither do I think it profitable for colleges to try to completely exclude all people who might occasionally be uncollegial.

The flip side of college professors' freedom to speak is that the college doesn't endorse their speech (even if their spouses are administration members). It's true that the college might have taken steps to express its affection for Miller, and distance itself from Franklin's statements, but for all I know it might have. Certainly nothing in the story suggests that the college endorsed them, or that many other colleagues expressed similar sentiments.

So it's hard to see how this is evidence that Miller's place at the College was anything but "assured." (Universal affection for him, or even collegial politeness, wasn't assured, but that's outside the power of the College to assure.) He doesn't seem to have been "ostraci[zed]." Nor does there seem to be evidence that the College "didn't want him."

I think there's plenty of undue hostility towards conservatives in academia, and plenty of vitriol that ought to be condemned. But I'd hate to see people hold colleges responsible for isolated faculty members' speech, speech that the colleges ought to tolerate even when they disagree with it.

Wednesday, December 8, 2004

Public Service Announcement: We interrupt our regularly scheduled blogging for this important public service announcement, brought to you by BBC news:
  Men who use laptop computers could be unwittingly damaging their fertility, experts believe.
  Balancing it on the lap increases the temperature of the scrotum which is known to have a negative effect on sperm production, researchers found.
Here is the key information from Dr. Yefim Sheynki of SUNY Stony Brook:
  "[Laptops] are frequently positioned close to the scrotum, and as well as being capable of producing direct local heat, they require the user to sit with his thighs close together to balance the machine, which traps the scrotum between the thighs."
  The researchers asked 29 healthy male volunteers aged between 21 and 35 to take part in an experiment.
  They then recorded the temperature changes to the scrotum caused by laptop use and different seating positions over one hour time periods.
  Just sitting with the thighs together, a posture needed to balance a laptop, caused scrotal temperatures to rise by 2.1C.
  When the men used a laptop in this position the average temperatures increased by 2.6C on the left of the scrotum and 2.8C on the right.
  . . .
  He said any changes might be reversible, but that repetitive use of a laptop in this way might cause permanent damage.
  "Until further studies provide more information on this type of thermal exposure, teenage boys and young men may consider limiting their use of laptop computers on their laps," he said.
We now return to our regularly scheduled blogging. Hat tip: Michael Froomkin.
Happy Chanukah, Outkast Style:

If King Solomon's Casino doesn't do it for you, try this Weird Al meets Outkast way of celebrating the Jewish holiday. Warning: there is sound, although that's the point. And it's also kinda warped. My favorite line: "Sheh-vitz [of Manischewitz] and a kosherized pickle" in lieu of "shake it like a Polaroid picture." Runner-up: "Oy is just Yo backwards."

Happy Chanukah:

From the King Solomon Casino.

UPDATE: Oh, the instructions are in Hebrew; you have to click on the candles to make them sing.


The most interesting claims about word origin are often wrong. Jesse Sheidlower, editor-at-large of the Oxford English Dictionary seems to have the goods on one, in Slate:

John Leland kicks off his entertaining new book, Hip: The History, with a seductive little linguistic anecdote. The word hip, he says, derives from the West African language Wolof, and was "cultivated by slaves" from West Africa. Leland goes on to use the etymology of the word as a framing device for part of his argument: Hip — the word and the concept — "was one of the tools Africans developed to negotiate an alien landscape, and one of the legacies they contributed to it." Sounds fascinating, right?

There's just one problem: The etymology is wrong. . . .

A particular telling quote: While Leland consulted various sources (which turned out to all flow from the same wrong initial source, or so says Sheidlower), "Leland also wrote to me, 'Of all the proposed etymologies I saw, the case for slave origins struck me as the strongest, earliest and most edifying.'" Whether a linguistic claim is repeated often turns largely on whether it is "edifying" or amusing or otherwise gratifying, and not enough on whether it's accurate.

Bad Behavior by CBS? Good Sign for Bloggers? reports that

The owner of, Martin Kelley, said . . . 'Yesterday I got a call from a publicist for CBS News's 60 Minutes. They're running a story tonight on 'Deserters,' U.S. military personnel who have fled to Canada rather than serve in Iraq. She was requesting that I talk up the program on Nonviolence. In nine years of publishing the peace site, I can't remember ever getting a call from a publicist before. I've talked to reporters from major news networks and papers, and I've talked a booking agent or two to arranging appearances on radio shows, but never a publicist.

InstaPundit also links to this.

My first reaction: Sound slimy that a news outlet is trying to get people on one side of the aisle to talk up its news story. My second reaction: Why should this be slimy? They're trying to get more people to watch their story — which they presumably think is valuable and accurate — and of course they're e-mailing those people who seem inclined to promote it favorably rather than those who seem less inclined to promote it or more inclined to criticize. (Of course, it's possible they also tried to approach some conservative bloggers, too.)

My third reaction: It's pretty cool that some mainstream media publicists think enough of blogs that they want to promote their tens-of-millions-of-viewers broadcasts there. My fourth reaction: Three reactions are enough.

In the spirit of Orin's recent successful experiment with comments, I'll turn on comments for this thread. No, it's not something I'm likely to do more often. [But you just said that you're doing this because it has just been done. Doesn't that mean that once it's been done twice, you're likely to do it again.-ed. Nah, slippery slopes are just a myth, long debunked by serious scholars.] Nor do I promise to read all of them in a timely fashion, or edit them to remove trolls, spam, repetitions, folly, etc. I'm trusting in everyone's forbearance and politeness here, always a winning strategy in this, the best of all possible worlds.

Patently Silly:

An amusing site, even if you don't find patent law very funny.

French Neglect Leads to Islamic Extremism:

An interesting story, and a bit surprising to see it in the New York Times.

Journalist's Privilege:

Jonah Goldberg (National Review Online) weighs in. Sounds like he and I largely agree.

New York Voting to Reduce Drug Sentences: The New York Times reports:
  After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in New York State, sanctions considered among the most severe in the nation.
  The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life.
  Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.
  Good for them. I am against drug legalization, but mandatory-term sentences are usually bad news, and high mandatories for drug crimes are often the worst of the lot. My sense is that in the case of drug crimes, the imposition of severe sentences has little additional deterrent effect. Addicts are hard to deter. Dealers get locked away for a lot longer, but someone else replaces them to meet the consumer demand. On the whole, greater penalties should have a marginal effect on the price and availability of drugs — and higher price may lessen demand — but they do so at a very high price to defendants, their families, and the state that has to pay for prison. When a defendant can get a more severe sentence for dealing drugs then for committing a brutal violent crime, something is out of whack.
Yesterday's Bushism of the Day:
"I always jest to people, the Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what for, and they walk in and get overwhelmed by the atmosphere. And they say 'man, you're looking pretty.'" —Washington, D.C., Nov. 4, 2004"
Now, the context, which Slate persists in refusing to link to:

BUSH: Learn and not learn about the Cabinet?


BUSH: . . .

This is a job that requires crisp decision-making, and therefore, in order for me to make decisions, I've got to have people who bring, you know, their point of view into the Oval Office and are willing to say it.

I always jest to people: The Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what-for, and they walk in and get overwhelmed by the atmosphere and they say, Man, you're looking pretty.

Therefore, you need people to walk in on those days when you're not looking so good and saying, You're not looking so good, Mr. President. . . .

What exactly is there that's remotely mockable about this? I report, you decide.

Incidentally, people occasionally fault my criticisms of the Bushisms. "They're just a joke," they say. Well, they are attempts at humor — but they are attempts at humor that criticizes Bush. (See the Introduction to the Bushisms book, excerpted here.) If you're going to criticize someone, it seems to me that you should do it fairly and aptly. Many of the Bushisms strike me as unfair and inapt, which is why I comment on them.

Finally, someone suggested that this is petty nitpicking on my part, and that I should move on to more important things. I offer a deal: If Slate stops its petty nitpicking of Bush — and nitpicking which strikes me as often incorrect — I'll stop my petty nitpicking of Slate.

Ten Charged for Basketbrawl: The Detroit Free Press reports this morning that Oakland County prosecutor David Gorcyca will files charges against ten individuals -- five Indiana Pacers players and five fans -- for their respective roles in the Nov. 19 melee in Detroit.

The Syndicated Racism of Sam Francis: I do not believe that criticizing French history and culture is "essentialist," let alone racist (see here). Cultural criticism is not tantamount to racism. Alas, real racism still exists, and it finds its way into print all too often.

One recent example is this column by Samuel Francis, decrying the "brazenly" interracial subtext of ABC's "Desperate Housewives" intro to Monday Night Football, as well as the still-infamous Janet Jackson-Justice Timberlake Super Bowl performance and "wardrobe malfunction. Francis is aghast at the "radical" notion in such episodes that "interracial sex is normal and legitimate." The point of the MNF skit "was not just to hurl a pie in the face of morals and good taste but also of white racial and cultural identity." Francis writes further:
Breaking down the sexual barriers between the races is a major weapon of cultural destruction because it means the dissolution of the cultural boundaries that define breeding and the family and, ultimately, the transmission and survival of the culture itself.

Although Francis was long ago dropped by the Washington Times for his unsavory views, his column still manges to find its way into print. Francis apparently remains in syndication thank to Creators Syndicate. The folks at Media Matters for America (who, I admit, are not always so reliable) have rightly condemned the column and sent this letter to Creators President and CEO Richard Newcombe. It's a shame the distributors of Andy Capp, Heathcliff, and the Wizard of Id also see fit to distribute the likes of Sam Francis.

Update: Yes, in case you were wondering, the offending column was distributed by Creators Syndicate. I can't find it on the Creators site, but here's a Google cache of it.

Related Posts (on one page):

  1. Creators Comments on Francis Column:
  2. The Syndicated Racism of Sam Francis:
Michael Dorf on the Solomon Amendment Case:

Columbia lawprof Michael Dorf, a very highly regarded con law professor, offers his take on the Third Circuit's Solomon Amendment decision over at Findlaw:

The statute found unconstitutional by the court of appeals is truly odious, threatening both equal opportunity in the military and the institutional autonomy of universities. Yet, as I shall explain, the logic of the court's opinion striking it down is flawed.

Thanks to Howard for the link.

The Power of Dude: The Associated Press reports:
  A linguist from the University of Pittsburgh has published a scholarly paper deconstructing and deciphering the word "dude," contending it is much more than a catchall for lazy, inarticulate surfers, skaters, slackers and teenagers.
  An admitted dude-user during his college years, Scott Kiesling said the four-letter word has many uses: in greetings ("What's up, dude?"); as an exclamation ("Whoa, Dude!"); commiseration ("Dude, I'm so sorry."); to one-up someone ("That's so lame, dude."); as well as agreement, surprise and disgust ("Dude.").
  Kiesling says in the fall edition of American Speech that the word derives its power from something he calls cool solidarity — an effortless kinship that's not too intimate.
Well, duh. I mean, that's totally right. But, c'mon, like, isn't that kinda obvious? Man, those professors will write on anything.

Tuesday, December 7, 2004

This May Just Be A Legend,

but if so, it's a pretty good legend. (Link: CrimLaw)

Iraqi Elections Delayed to Allow Time for Negative Ads:

The Borowitz Report has the scoop.

The Twenty-First Amendment Wine Shipment Case:

Dahlia Lithwick (Slate) has a funny, readable, and interesting report of the oral argument.

Prude fact of the day:

In an appearance before Congress in February, when the controversy over Janet Jackson's Super Bowl moment was at its height, Federal Communications Commission chairman Michael Powell laid some startling statistics on U.S. senators.

The number of indecency complaints had soared dramatically to more than 240,000 in the previous year, Powell said. The figure was up from roughly 14,000 in 2002, and from fewer than 350 in each of the two previous years. There was, Powell said, "a dramatic rise in public concern and outrage about what is being broadcast into their homes."

What Powell did not reveal—apparently because he was unaware—was the source of the complaints. According to a new FCC estimate obtained by Mediaweek, nearly all indecency complaints in 2003—99.8 percent—were filed by the Parents Television Council, an activist group.

This year, the trend has continued, and perhaps intensified.

Through early October, 99.9 percent of indecency complaints—aside from those concerning the Janet Jackson "wardrobe malfunction" during the Super Bowl halftime show broadcast on CBS— were brought by the PTC, according to the FCC analysis dated Oct. 1.

Here is the full story.

Anti-French "Racism" A French intellectual reviews of "Our Oldest Enemy: A History of America's Disastrous Relationship with France," by John Miller and Matt Molesky for the New York Times and (translated from the original French) accuses the authors of "racism":
[t]he whole book is a mad charge (whose only equivalent I know is the fascist French literature of the 30's) against a diabolical nation, the incarnation of evil, bearing in the body and soul of its citizens the stigmata of an ill will the only aim of which throughout the centuries has been the humiliation of America the great.

This manner of trapping the entire culture of a country inside a caricature presented as eternal and characteristic has a name: essentialism. Pushed to such an extreme degree, and culminating in the profound question that ponders if ''the French, in short, will continue to be the French,'' essentialism is another name for a temptation to which it is surprising to see such apparently respectable minds succumb: racism.

The fact is, yes, there is a kind of racism in dragging out as evidence a text by Mark Twain that contains, we are told, ''more than a little truth'' and according to which ''the race consists of human beings and the French.'' Go ahead, these careful readers of ''Tom Sawyer'' urge, ''scratch a Frenchman'' and you will discover ''a savage'' if it's a man, a ''harlot'' if it's a woman — a brutishness, in any case, ''unknown in civilized lands''!

France and America deserve better than this opposition of two apparently antithetical but actually perfectly symmetrical lunacies.
Miller and Molesky respond here.

Note: The link to the NYT review should be working now. Also, here's a link to the introduction to the Miller & Molesky book.

Every election can be unanimous,

if you just focus on the right denominator. My former student Kevan Choset points to this AP item, on the MSNBC site:

Although "Titanic" soared at the box office in 1997, according to a recent survey, it's most memorable line -- "I'm the king of the world!" -- sunk..

British baker Warburtons posed the question "What are your top three cheesiest moments in film?" to 2,000 U.K. moviegoers in celebration of the launch of their new cheese flavored crumpets. . . .

Warburtons reports that surveyed women opted for romantic comedy moments from films such as "Notting Hill" and "Jerry Maguire" while men preferred silly scenes from action flicks like "Top Gun" and "Braveheart." Despite the gender divide, 33 percent of the overall vote unanimously agreed on the "Titanic" yell as the cheesiest moment.

CNN did better; I take it they noticed the error.

Prestopundit on Left2Right:

Commenting on the new blog Left2Right (see below), Prestopundit has an assignment for progressive intellectuals trying to understand the conservative mind: read some Hayek.

If leftist and independent academics want to engage non-leftists, they might consider engaging the ideas that non-leftists take seriously. It's hard to find a conservative who isn't massively influenced by the writings of Friedrich Hayek.

Pretty good advice. At the same time, it's not entirely clear that the goal of Left2Right is to engage conservative or libertarian ideas. Based on the blog's mission statement, my sense is that the goal is to understand why so many people voted for Bush, and to use those insights to help the next Democratic candidate win Ohio and Florida in 2008.

More on Yesterday' s Bushism of the Day:

I e-mailed Jacob Weisberg to ask what he thought was Bushist about yesterday's Bushism of the Day, and he graciously responded:

The White House transcript didn't have "to." Hard to know what he actually said, but I'll switch to the Post version to make it more readable. In any case, that is not the joke. I define Bushisms as things Bush says that are funny for whatever reason, not merely mistakes.

Hmm -- that's not how I had understood the series. Here's the start of the Introduction from Weisberg's Bushisms book:

The question I am most frequently asked about the Bushisms series is, "Do you really think the President of the United States is dumb?"

The short answer is yes.

The long answer is yes and no.

Dipping into this volume may leave the impression that George W. Bush is a simple dimwit. . . . If you don't care to pursue the matter any further, that view will serve. . . .

In reality, however, there's more to it. The assemblage of a presidential term's worth of malapropisms, solecisms, gaffes, spoonerisms, and truisms -- drawn together here from the best of Bushisms old and new -- tends to imply that Bush's lack of fluency in English is tantamount to an absence of intelligence. But as we all know from experience, the inarticulate can be shrewd, the fluent fatuous. In Bush's case, the symptoms indicate a specific malady -- some kind of language-skill deficit akin to dyslexia -- that does not indicate a lack of mental capacity per se. . . .

But perhaps the Bushisms column has a broader mandate than the Bushisms book, or both are meant to be a mix not just of "malapropisms, solecisms, gaffes, spoonerisms, and truisms" -- which are either mistakes (the first four) or vacuousness, which one might think of as a substantive mistake -- but also just things that are "funny for whatever reason."

Still, isn't this line funny largely because it is taken out of context? Would it really be that funny if read with the surrounding lines, as I quote them above, and understanding that it was a response to a question about beef import policy?

And in any event, might it not be better for the Bushisms column to include links to the transcripts, so that readers can see for themselves what the context might be (especially if they assume that most Bushisms are indeed "malapropisms, solecisms, gaffes, spoonerisms, and truisms" rather than just "funny for whatever reason")?

Legal Affairs Debate Club about the Journalist's Privilege:

A very interesting exchange, between columnist Paul McMasters (of the First Amendment Center) and U Chicago lawprof and First Amendment maven Geoffrey Stone.

Bring Out Your Feedback: Are you happy with the Volokh Conspiracy? Annoyed with it? Is there something you want to see more of? Less of? Tell us all about it. Although the VC doesn't normally allow comments, I tend to like them. So I am opening up comments for this post to give you a chance to give us your 2 cents. Anonymous is okay, but any abusive, mean, or rude comments will be deleted. Comment away.

  UPDATE: Sorry for the technical problems. I'm working on them, although I don't know if I'll be able to fix them.

The Wall Street Journal opines on the wine cases today.

Left2Right Blog:

A large and very distinguished group of professors have started a new group blog, Left2Right, with the goal of trying to understand Red America. Hint: It's not all like this. I assume Left2Right will be followed shortly by Right2Left, in which bloggers from Red America try to understand very distinguished professors? Seriously, though, it looks interesting. Thanks to Brian Weatherson for the link.

Monday, December 6, 2004

Bushism of the Day:

In today's Slate:

"I believe that, as quickly as possible, young cows ought to be allowed go across our border." — Ottawa, Nov. 30, 2004

Now this one just puzzles me. Here's the relevant excerpt from the transcript. Bush was apparently responding to a question about the importation of beef from Canada to the U.S. (I can't quote the question, because it isn't included in the transcript, presumably because it's in French):

Look, the prime minister has expressed a great deal of frustration that the issue hadn't been resolved yet. And I can understand his level of frustration. There's a series of regulations that are required by U.S. law, and the latest step has been that the Agriculture Department sent over some proposed regulations to handle this issue to what's called the Office of Management and Budget. It's a part of my office.

I have sent word over that they need to expedite that request as quickly as possible.

I fully understand the cattle business. I understand the pressures placed upon Canadian ranchers. I believe that, as quickly as possible, young cows ought to be allowed to go across our border. I understand the integrated nature of the cattle business, and I hope we can get this issue solved as quickly as possible. . . .

What's "Bushist" about this? Is it that "young cows" sounds odd? Apparently it's a common industry term (see, e.g., "Management of Young Cows for Maximum Reproductive Performance," noted on a USDA site). Is it that it sounds stilted to talk about allowing the cows to go over the border, as if it's the cows' desire? But this is a pretty standard locution — speaking of goods going places, rather than people shipping goods places — and in context I doubt that it sounded at all odd.

Or is it the omission of the "to" before the "go across the border"? The Washington Post transcript quotes Bush as saying "to go across the border," as do the other sources I've checked. [UPDATE: Reader Russell Steinthal points out that Slate has since inserted the "to," though it was omitted when the item originally went up.]

And why does Slate, an online publication that has long tried hard to take advantage of its online format, persist in failing to providing links to sources that it quotes? Wouldn't it be good if readers could see for themselves how the quote looks in context?

[NOTE: I added the "Or is it" paragraph after this post was originally posted.]

Anonymous: mentions a new anonymous law prof blog, or rather, a fictional anonymous law prof blog, titled, appropriately, Anonymous Law Professor. The genre of anonymous blogs purporting to be by law profs is fairly new; as best I can recall, the only other attempt was the glorious but short-lived Proculian Meditations.


Tomorrow, of course, is oral argument in the wine cases. In thinking of how the cases will come out (and hence what ot look for in oral argument), the test is always to try to figure out how 5 votes line up one way or the other. It seems to me that in trying to put oneself in the shoes of the various justices, it seems like the nondiscrimination position should win. It seems like it lines up like this:

Scalia and Thomas: Traditionally strong proponents of the antidiscrimination prong of the dormant commerce clause, I think that they will strike down this blatant protectionism. Scalia already articulated in Healy his position that discrimination removes a state law of the protection of the 21st Amendment. I also believe that Scalia and Thomas will be willing to do the hard work necessary to dig into the original meaning of the 21st Amendment, and to recognize that the full ratification history reveals the 21st Amendment to be an effort to restore the constitutional balance interrupted by the 18th Amendment, and to withdraw the federal government from the disastrous meddling in local police power affairs as it did under the 18th Amendment's national prohibition regime. I discuss the ratification history of the 21st Amendment in my Wine Wars essays (which are available here) on pages 9-24 Thus, the 21st Amendment restored the local government to its local police power control and the federal government to its role as regulator of interstate commerce, and perpetuated the longstanding limit on the police power that it could not be used to enact discriminatory regulations. Moreover, given the unqualified language of the 21st Amendment, there is no plain language reading that would enable the Court to apply the 21st Amendment to the dormant Commerce Clause, but not the Commerce Clause, Export-Import Clause, 1st Amendment, Equal Protection Clause, and Due Process Clause, as it has already done previously. Once it is recognized that the 21st Amendment contains no exception for these provisions, it becomes impossible to simply apply the plain language.

Breyer: Seems like a clear vote for those challenging the laws. He should understand the policy arguments as articulated in the FTC Report and elsewhere, and will see through the flimsy regulatory arguments advanced by the states.

Kennedy and Souter: Maybe the best predictor of Kennedy and Souter's votes is the pure absurdity of the state's position. Because the state's position essentially boils down to its view that it can do whatever it wants when it comes to alcohol, one suspects that Kennedy and Souter will be discouraged on pragmatic grounds from endorsing such an extreme position. My impression is that Kennedy is responsive to simple pragmatism and common sense, and this case, pragmatism and common sense is contrary to the state's position. After all, it is difficult to see why it is essential for New York to prohibit out-of-state shipment of wine when 190 in-state wineries are already shipping directly to consumers and the Republic has not collapsed. Perhaps Ginsburg falls in this camp as well.

O'Connor, Rehnquist, Stevens: O'Connor seems wedded to her misunderstanding of the legislative history of the 21st Amendment. On the other hand, her announcement of this position in 324 Liquor Corp. appears to have come unprompted by the briefs or parties in the case, so perhaps she will be willing to revisit the legislative history she relies on there. I have discussed in detail the legislative history sources she relies on and why they do not support her position, on pages 24-34 of my initial Wine Wars essay, which can be found here. As I show there, she has removed her legislative history excerpts from their proper historical and legislative context, thereby getting them exactly backward. Rehnquist and Stevens seem to have followed O'Connor on most of these matters.

By my calculation, therefore, it is hard to see how the states get beyond their 3 hard-core supporters, assuming the states actually keep all of them on board. Indeed, given O'Connor's position that the legislative history on the 21st Amendment matters a lot, it seems like an appropriate time for her to reconsider the 21st Amendment in light of the full range of legislative history that she ignored in her earlier opinions in alcohol cases.

The bottom line is that the 21st Amendment was designed to repeal the 18th Amendment and to remove the federal government from meddling in local police power affairs and to protect dry states from the possible repeal or overturn of the Webb-Kenyon Act. There is nothing to indicate that it was designed to give a novel and unnecessary power to the state governments to erect protectionist barriers to interstate commerce or to allow wet states to engage in economic warfare with the products of other wet states. It rectified the Supreme Court's dormant Commerce Clause jurisprudence under the "original package" doctrine which had created a peculiar discrimination in favor of out-of-state alcohol, but certainly did not intend to respond to this by creating a new power of the states to disriminate against out-of-state alcohol.

Finally, note the difficulty of protectionist position in counting to 5 Justices. I can only see three different ways for that position to prevail, none of which are particularly appetizing beyond O'Connor, Rehquist, and Stevens.

First, they could try to apply the plain language, holding that the 21st Amendment gives the states plenary power over alcohol. But given the unqualified language of the 21st Amendment, that position would imply that the state could prohibit only black people from importing wine, or prohibiting only imports of Kosher wine. That does not seem like a position the Supreme Court wants to take. Alternatively, the Supreme Court could interpret the language more narrowly then it is written, and apply it only to the dormant Commerce Clause--but then, of course, it would no longer be a plain language argument.

Second, they could hold that there was no discrimination in this case because of New York's physical presence requirement. But that would seem to be unlimited in principle as well, and would imply that the same regulations would apply with equal force to and LLBean, requiring a physical presence for the sale of any goods. It is hard to see why the 21st Amendment would change the analysis of whether the laws are discriminatory, as opposed to the question of whether the 21st Amendment saves discriminatory laws that would be unconstitutional for any other product.

Third, the court could simply bless these blatantly discriminatory regulatory regimes. But that holding would undermine the bedrock principle of nondiscrimination which was one of the primary purposes for the creation of the Constitution in the first place. This may be the narrowest position, but unless very narrowly drafted, any ruling on these grounds would seem to invite efforts to erect discriminatory regulations to other products. I honestly don't see a very attractive mechanism for this Court to uphold these regulations, especially given the nonexistent policy arguments that have been made to support them, and the overwhelming empirical and policy arguments on the other side.

Posner on Preventive War:

Richard Posner's first post on his new blog is now up, and everybody seems to be linking to it, so I guess I will, too. It's not exactly earth-shattering stuff this week. Posner points out that from a state's perspective, the cost-benefit analysis of a preemptive war may justify a preventive war even when the threat is not imminent. If your enemy is weak today but may be strong next week, and you have reason to reason to believe that a strong enemy will try to attack you, it may be in your interest to attack him now rather than wait to have your butt kicked next week. I don't think anyone can contest this, although I am sure some would contest the premise: should the rules governing preventive war be based solely on what is in the interest of the state doing the attacking? In any event, welcome to the blogosphere, Judge Posner.

Privilege for Me But Not For Thee:

The New York Sun contains an interesting article on the role of blogs in arguments about whether courts should recognize a reporter's privilege. Among other things, it presents an interesting example of how the practical implications of legal rules shape whether judges will adopt them. The lawyers for the media groups want to define a narrow group of "real journalists" who should receive the benefits of the privilege. They want to distinguish journalists from mere bloggers, thinking that, in the words of Floyd Abrams, "If everybody's entitled to the privilege, nobody will get it." (Link: Howard, of course.)

  UPDATE: You can find more on Abrams' position here.
New Supreme Court Government Employee Speech Decision:

Marty Lederman (SCOTUSblog) blogs about it.

Lots of Interesting Posts

up right now at CrimProf Blog.

Audio of Supreme Court Justices Explaining Their Own Opinions: I was listening to NPR this morning, enjoying Nina Totenberg's preview of today's argument in Miller-El v. Dretke, when I was rather startled to hear the voice of Justice Kennedy explaining his own 2003 opinion from an earlier round of the case, Miller-El v. Cockrell. Supreme Court Justices don't go on NPR to explain their prior decisions, so I wondered where Totenberg could have found the audio of AMK explaining his opinion. A minute or so later, a google search confirmed my suspicion: the very cool site that has the audio of Supreme Court oral arguments available on-line also has the Justices' bench statements. You can listen to Justice Kennedy's complete summary of Miller-El v. Cockrell here.

  Bench statements are brief summaries of opinions read by the Justices from the bench the morning that an opinion is released. They tend to be informal, at least compared to written opinions. Bench statements are read in open court to an audience that has no idea what cases (if any) will be released that morning, so they are addressed to generalists. More importantly, bench statements tend to focus on the core of the opinion's argument, making them an interesting resource for students and historians alike who may want to get a better idea of what an opinion means. Plus, it's just kind of cool to hear Supreme Court Justices explain their opinions at the very moment that they are released.

  Oyez doesn't have every bench statement available, at least yet, but there are lots of interesting cases available so far. For example, I had heard a lot about the courtroom atmosphere when Justice Kennedy and Justice Scalia announced the majority and dissenting views in Lawrence v. Texas. You can listen to both here.
Chemerinsky's Changed Tune on Filibusters In yesterday's L.A. Times, law professors Erwin Chemerinsky (Duke) and Michael Gerhardt (William & Mary) argue against Republican proposals to eliminate the availability of filibusters for judicial nominations. This so-called "nuclear option," Chemerinsky and Gerhardt write, would be "a cynical exercise of raw power and not based on constitutional principle or precedent." Elimination of the filibuster "would transform the Senate into a rubber stamp."

That's what Chemerinsky says now. But in 1997 -- when there was a Democratic President who found some of his nominees slowed by a Republican Senate -- Chemerinsky sang a different tune. As Patrick Frey documents here, Chemerinsky co-authored a 1997 law review article taking a quite different stance.
The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.
Indeed, in 1997 Chemerinsky appeared to endorse the view that Senate Rule XXII, which purports to require a two-thirds vote to change the filibuster requirement, is unconstitutional.

Related Posts (on one page):

  1. Chemerinsky's Not Alone:
  2. Chemerinsky's Changed Tune on Filibusters
Basketbrawl Update: There will be an arbitration hearing this week to review NBA Commissioner David Stern's suspensions of Indiana Pacers players involved in the Nov. 19 brawl in Detroit. The NBA contends that there is no legal basis for the hearing, however, and has apparently filed suit in federal district court to prevent a negative arbitration ruling. See also here.

Meanwhile, kudos to the Detroit Pistons organization for taking swift action against fans identified as hooligans, barring two season-ticket holders from the arena indefinitely. Local prosecutors are also getting ready to bring charges. One of those who may be in trouble is Piston center Ben Wallace's brother.

Taxes that Aren't Paid by Taxpayers? A story in today's New York Times about the federal Superfund progra observes: "Since 1995, when Congress did not renew a special tax on polluters, the cleanup money has come entirely from taxpayers." Huh? The money in Superfund always came from "taxpayers" — that is, it has always come from those paying taxes. One might have thought the Times editors would have caught a line discussing taxes that are not paid by taxpayers.

What the article clearly meant to say is that since the special Superfund tax has expired, the program has been funded out of general revenues (though the program does receive funds through cleanup cost recovery as well). Either way, "taxpayers" are footing the bill. The question is whether the cleanup money will come from taxpayers generally, or those who are assessed a special tax on chemical feedstocks. But these latter folks are "taxpayers" too — as they are paying taxes.

The Times also errs in calling it a "tax on polluters." The Superfund tax was nothing of the kind. It was a tax on chemical feedstocks, not on pollution — and it taxed polluters and non-polluters alike. A company's tax liability was a function of the volume of taxed substances it used, not the amount of pollution it caused. Thus, a company that used high volumes of taxed substances, but had an exemplary environmental record would pay more than a company that (mis)used far less material and caused more environmental harm. Thus, despite its billing, the Superfund tax was never a "polluter pays" program.

Update: The tax experts at Roth & Company note that the other part of the "Superfund tax" that expired was an across the board tax on corporate Alternative Minimum Tax income in excess of $2 million. As they observe, "Banks, insurance companies and (horrors!) accounting firms were subject to the same 'superfund tax' as lead refiners and cyanide makers." Note the implications: To some environmentalists (and, apparently, some at the Times) a tax on corporate profits is a tax on "polluters."
Artists and the Internet:

A very interesting report from the Pew Internet & American Life Project.

Justice Delayed: Today's New York Times contains a troubling article about Judge George Daniels of the Southern District of New York, who the Times reports is the "unchallenged king of delayed decisions." (Link: Howard) Acccording to the Times, Judge Daniels "had 289 motions in civil cases pending for more than six months, by far the highest total of any federal judge in the nation."
For some plaintiffs, the waits have seemed like forever.
  There was the woman in Queens who had to fend off creditors while she waited more than three years for the judge to decide that she was entitled to her late ex-husband's pension benefits. And there was the prisoner with H.I.V. who filed a petition challenging his state court conviction. By the time Judge Daniels got around to issuing an order - three years later - the prisoner had died.
  . . .
  Court records and interviews show that in at least eight cases, including Mrs. Adams's, people were so frustrated by Judge Daniels's slow pace that they went over his head. They filed petitions with the United States Court of Appeals for the Second Circuit asking that it order Judge Daniels to rule or perhaps transfer their cases to another judge.
  Typically, shortly after the petitions were filed in the higher court, Judge Daniels did rule.
  Who is Judge Daniels? You can check out his bio here.

  UPDATE: A VC reader writes in to note a possible explanation for the delay. When a new federal trial judge takes the bench, it is common for other active judges (and semi-retired judges) to dump complicated and difficult cases that they don't want on the new judge's docket. New judges get the usual run of new cases, plus a backlog of old cases that no one else wanted. I don't know the details of whether this happened in Judge Daniels' case, but the newbie backlog may explain some of the delay.

Sunday, December 5, 2004

That's A Great Picture of You:

When you tell someone that a photograph of them is particularly great, aren't you really saying that actually they don't look that good?

News Reports and Objectivity: Daniel Okrent reprints a telling comment about how newspapers report the news, attributed to veteran New York Times editor Lester Markel:
  The reporter, the most objective reporter, collects fifty facts. Out of the fifty he selects twelve to include in his story (there is such a thing as space limitation). Thus he discards thirty-eight. This is Judgment Number One.
  Then the reporter or editor decides which of the facts shall be the first paragraph of the story, thus emphasizing one fact above the other eleven. This is Judgment Number Two.
  Then the editor decides whether the story shall be placed on Page One or Page Twelve; on Page One it will command many times the attention it would on Page Twelve. This is Judgment Number Three.
  This so-called factual presentation is thus subjected to three judgments, all of them most humanly and most ungodly made.
Fallujah in Pictures: The Washington Post has a story today about the blog Fallujah in Pictures. According to the Post, the blog's reproduction of photographs from Iraq seen widely in the Muslim world but not reprinted in U.S. papers demonstrates "how the might of the U.S. military can be matched by a single blogger working part time."
  In the version of the Web site that was up last week, the first image on the site showed a malnourished Iraqi baby, wide-eyed and screaming in pain, under the sarcastic headline, "another grateful Iraqi civilian."
  Many of the photographs are far more graphic than are usually carried in newspapers, showing headless bodies, bloodied troops, wounded women, and bandaged babies missing limbs. One added recently shows a U.S. soldier with part of his face blown away by a bomb.
  The blog also amounts to a critique of the U.S. news media. Another section of the site, under the headline, "Also not in today's news," shows a photograph of a Marine propped against a concrete wall, grimacing as he is treated for a shrapnel wound in his upper right leg.