Saturday, December 18, 2004

ACLU Privacy Scandal: Have you heard about the powerful international organization that engages in invasive, Big Brother-esque data mining; creates digital dossiers on people in violation of their own privacy policies; does all of this with no oversight and no judical review; and when challenged, tries to cover-up its practices? Would you believe that the organization is the ACLU? According to The New York Times:
  The American Civil Liberties Union is using sophisticated technology to collect a wide variety of information about its members and donors in a fund-raising effort that has ignited a bitter debate over its leaders' commitment to privacy rights.
  . . .
  Daniel S. Lowman, vice president for analytical services at Grenzebach Glier & Associates, the data firm hired by the A.C.L.U., said the software the organization is using, Prospect Explorer, combs a broad range of publicly available data to compile a file with information like an individual's wealth, holdings in public corporations, other assets and philanthropic interests.
  . . .
  Mr. [Michael] Meyers[, vice-president of the ACLU,] said he learned on Nov. 7 that the A.C.L.U.'s data collection practices went far beyond previous efforts. "If I give the A.C.L.U. $20, I have not given them permission to investigate my partners, who I'm married to, what they do, what my real estate holdings are, what my wealth is, and who else I give my money to," he said.
  The New York Attorney General is on the case:
  In a Dec. 3 letter, Mr. Spitzer's office informed the A.C.L.U. that it was conducting an inquiry into whether the group had violated its promises to protect the privacy of donors and members.
  How did the ACLU respond to scrutiny of its practices? Not particularly well, it turns out:
  [The ACLU's vice-president] objected to the practices, and the next day, the privacy policy on the group's Web site was changed. "They took out all the language that would show that they were violating their own policy," he said. "In doing so, they sanctified their procedure while still keeping it secret."
  I wonder, what is this "Prospect Explorer" datamining surveillance tool that the ACLU has hired the company to use? What are its powers? Can it be abused? Has it been tested for accuracy? Why has its existence been kept secret? What else is the ACLU trying to hide? Is Admiral Poindexter behind this? John Ashcroft? J. Edgar Hoover? Developing....
What Do 44% of Americans Believe?: Newspapers and websites around the world are reporting what purport to be the results of a Cornell University poll on attitudes of Americans towards Muslims in the United States. The newspapers and websites are reporting that 44% of Americans say that they want to curtail the civil liberties of Muslim Americans. Here is the summary from the Associated Press:
  Nearly half of all Americans surveyed said they think the US government should restrict the civil liberties of Muslim Americans, according to a nationwide poll.
  . . .
  The survey indicated that 44 percent of those surveyed said they favored at least some restrictions on the civil liberties of Muslim Americans. Forty-eight percent said liberties should not be restricted.
  These are extremely disturbing figures that will be accepted by hundreds of millions or even billions of people around the world. But there is something important that the press reports overlook: the 44% of people polled did not actually say that they wanted to curtail the civil liberties of Muslim Americans. Rather, 44% of peple reported views that the Cornell University pollsters themselves categorize as being support for the curtailment of the civil liberties of Muslim Americans.

  I found the report on the poll here. It turns out that the pollsters asked people to agree or disagree with four statements:
1) Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising.
2) U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage.
3) Mosques should be closely monitored and surveilled by U.S. law enforcement agencies.
4) All Muslim Americans should be required to register their whereabouts with the federal government.
For each of these statements, between 20 and 30 percent of the subjects agreed; most disagreed. Overall, the study reports, 29% of the subjects agreed with 2 or more of these statements, and 15% agreed with one of them. (Some of these numbers don't quite add up, I think, but see page 6 of the report for the figures.)

  I don't want to be nitpicky, but am I right in thinking that a certain amount of spin is involved in how this poll is being reported? The pollsters made a judgment call that if you agree with any one of these statements, you are in favor of curtailing the civil liberties of Muslim Americans. Thus, the pollsters are claiming, and advocacy groups such as CAIR are trumpeting, that 44% of Americans are in favor of curtailing the civil liberties of Muslims.

  But is that really what the poll shows? Most of the questions are quite vague, and use lots of buzzwords. Take the statement: "Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising." There have been many press reports of Muslim civil and volunteer organizations being used as fronts for terrorist financing schemes. If you believe these reports are probably true, or just may be true, you might reasonably want the FBI to investigate the organizations. You would then answer that you agree with the statement. Does that really mean you want to curtail the civil liberties of Muslims?

  Of course, this is not to say that the poll results are heartening. In particular, it is very disturbing that 29% of Americans would agree that "All Muslim Americans should be required to register their whereabouts with the federal government." I can imagine less damning explanations for this figure, but it is on the whole quite troubling. Nonetheless, the press reports around the world suggesting that 44% of Americans want to curtail civil liberties of Muslim Americans would appear to be at least misleading.

  UPDATE: I made some slight corrections to the original.

Related Posts (on one page):

  1. All or Nothing:
  2. What Do 44% of Americans Believe?:

Friday, December 17, 2004

Bad News for John Lott:

Back in 1997, John Lott wrote an article in the Journal of Legal Studies putting forward data that seemed to show that right-to-carry (gun) laws reduced violent crimes. That article, and the subsequent book "More Guns Less Crime" influenced me and many others -- including state legislatures that passed right-to-carry laws based in significant part on the assertion that this would reduce crime. I don't have any particular precommitments regarding guns (and I shot many a gun while hunting as a youth), so I am guided by the empirical evidence. If more guns produces net benefits to society, then let's have more guns; if it doesn't, then let's not.

Anyway, Lott's thesis has come under attack from a number of quarters. His bizarre behavior -- like writing emails as "Mary Rosh," a student who said "he was the best professor I ever had," etc. -- did not help his credibility, but it did not impugn his data. (He ultimately admitted he was Rosh.) His apparent fabrication of a study on which he relied was more serious, since it was part of his factual underpinnings, but the study was not central to his thesis. (By the way, co-blogger Jim Lindgren did excellent work ferreting out the details about the phantom survey.) The key question was, and is, whether his data are correct that right-to-carry laws reduce crime.

His core thesis, though, was called into doubt by a number of researchers, most prominently in a study (and reply, both complete with data sets) written by Ian Ayres and John Donohue, two top empirical economists. They concluded that the data did not support Lott's assertions regarding right-to-carry laws and crime. Lott helped to write and then withdrew his name from a response to Ayres and Donohue. He responded in other venues to them, but did not respond to some of their key assertions.

Perhaps he was waiting/hoping for vindication from the closest thing to a gold standard in academic review -- a report on the issue from the National Research Council. That report has been years in the making, and features some of the top researchers in the country. Well, the report has been issued, it contains bad news for Lott: It concludes that "There is no credible evidence that 'right-to-carry' laws, which allow qualified adults to carry concealed handguns, either decrease or increase violent crime." They discuss Lott's research at some length and find it wanting. Note that they do not say that right-to-carry laws increase crime. That may be a silver lining for those opposed to gun control who believe that in the absence of evidence of a benefit states should allow people to carry guns, but it doesn't help Lott very much: He staked his reputation on his claim that the data showed a decrease. So much for his reputation.

Spell-Checker Rewrites History:

My friend Rob Morris reports that Henry "Lighthorse Harry" Lee (Robert E. Lee's father), has been renamed:

[Lighthorse Harry] earned his nickname during the American War of Independence as commander of the Legion of Virginia. The nickname Lighthorse Harry has followed the man for over 200 years. Imagine dashing the dashing Lighthorse Harry, rallying his legionnaires as they complete the encirclement of Fort Watson in April, 1781. With a nickname like that, history remembers Lee as a man of action, forever in motion.

That is until spell-checking software anchored him on a rocky shore. It seems that "Lighthorse" isn't an English word spoken in Redmond, Washington (home of Microsoft Word) or Ottawa, Ontario (Home of Corel WordPerfect). Their spell checkers want to change it from "Lighthorse" to "Lighthouse," and they have.

Now various Web sites, including some at reputable locations -- the University of Houston Library, the Texas Archival Resources Online, and other places -- talk about Lighthouse Harry. As someone whose last name is changed by spell-checkers to Moloch, I empathize and protest.

Related Posts (on one page):

  1. Allen Ginsberg and My Family:
  2. The Spell Checker Knows:
  3. Spell-Checker Rewrites History:
Eighth Circuit Bush Appointees: Howard links to this very interesting report about the Bush-appointed judges on the Eighth Circuit, the federal court of appeals that covers Iowa, Nebraska, Missouri, Minnesota, South Dakota, and North Dakota. I particularly liked the description of Judge Colloton:
  Lawyers appearing in front of Judge Colloton have seen him take the bench with the appendices in his arms, with yellow tabs marking certain pages. Judge Colloton reportedly is active in oral argument, often aggressively pursuing a line of questioning to fully explore an issue. Collins said the judge is "formal, traditional, and scrupulously respectful of rules, process, and the dignity of proceedings." He also said the judge is "almost a virtual walking encyclopedia of the law, especially Supreme Court law."
  . . . His opinions thus far do not so much reflect a conservative judicial philosophy, as might be expected given his background, but rather a strong interest in neutral, jurisprudential issues. In one commercial case, he dissented on the ground that the plaintiff had not sufficiently pleaded its principal place of business so as to create diversity jurisdiction.
Rules Versus Justice:

In an essay on judicial ethics in Legal Affairs, Judge Alex Kozinski raises an interesting hypothetical relating to whether judges should bend rules to reach particular results.

  [C]onsider this example: You are reviewing a criminal appeal where a young man has been convicted of murder and sentenced to life without the possibility of parole. You examine the record and find that the evidence linking the defendant to the crime is quite flimsy. The only solid proof supporting the conviction is the testimony of an inmate who shared a cell with the defendant while he was awaiting trial, and who swears that the defendant confessed to the murder (a confession the defendant denies making). You read the snitch's testimony closely and find it transparently unconvincing.
  Applying the rules of appellate review in an objective manner, you would have to affirm the conviction. After all, the jury is the trier of fact, and it was entitled to return a guilty verdict based on the jailhouse confession alone. Yet what if you believe, to a moral certainty, that the confession is a fabrication and the defendant didn't do it? Must you affirm the conviction and let a young man you believe is innocent spend the next 60 years locked up like an animal in a 7-foot by 10-foot cage?
  I have enabled comments; I'm not sure that this is the kind of issue that will generate a good comment thread, but let's give it a try. Thanks to Howard for the link.

  UPDATE: The comment function should be fixed now-- sorry for the inconvenience.
The Justice Department's Office of Legal Counsel

has taken the view that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." The document is dated Aug. 24, 2004, but it has apparently just been put on the Web site very recently. The opinion is long and detailed, and I suspect will be quite influential -- OLC opinions tend to be. I also hope it gets some media attention: Certainly this sort of reasoned opinion by the Justice Department office charged with opining on such questions ought to be pretty newsworthy.

Here's the closing paragraph:

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.

Good Gift for Any First-Year Law Student:

The second edition of my Academic Legal Writing textbook has just been published, and it now covers how to get onto law review — with, among other things, lots of tips on write-on competitions — as well as how to write the student articles that law review members (and others) write. Most first-year law students think about participating in law review write-on competitions; at UCLA, for instance, about 1/3 actually compete, and more seriously consider it. This means that your friends or relatives who just started law school would likely find the book to be a great present.

Of course, the book also continues to be helpful for second and third year law students, too, whether they're on law review, in a seminar, writing their mandatory upper-division paper, or working on an independent writing project. The book should be available from amazon; make sure you order the Third Edition (that's the link to which I just pointed).

For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

And you can still order a personally signed version from me (I just got 25 copies from the publisher) — just send to a paypal draft for $27.99 [UPDATE: price revised to equal the amazon cost, including shipping], together with (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

Unpersonalized copies are also available from Legal Books Distributing. The book is also available at, but amazon threatens that the book will ship within twelve to fourteen days; Legal Books Distributing should be much quicker.

UPDATE: Eighteen books ordered; 7 still left. I'm sending them Priority Mail, which is usually 2 to 3 day delivery — at the post office, they told me that books sent today will almost certainly arrive by Christmas, and books sent Monday probably will but might not.

FURTHER UPDATE: The publisher has been great about sending me new copies of the book after I run out of the old ones (I've sold over 50 so far); so if you order one, there'll be no problem getting it to you.

Tort Reform and Federalism:

I thought I'd chime in with a few thoughts on Orin's questions below, which is whether conservatives, who tend to support state autonomy, are hypocritical for favoring tort reform.

1. Tort liability for commercial activity is a form of regulation of commerce. As economists have pointed out, tort liability is another way to regulate behavior. Congress can require that all fans have certain safety screens, and fine manufacturers who don't comply. (I mean the rotating fans that make breezes, not the basketball fans who want to get into fights.) Or Congress could empower the Consumer Product Safety Commission to enact regulations to this effect. Or states could do the same. Or state or federal courts could allow product liability lawsuits against fan manufacturers, which may lead to liability awards for fans that lack such screens. There are pluses and minuses for each approach. But all approaches are forms of regulation.

2. Conservatives as well as liberals believe Congress should have pretty broad powers. The debate isn't between 100% Congressional power and 0%; rather, it's more like between 100% and 95% (as a constitutional law matter) and maybe 60% and 30% (as a matter of what the policy ought to be). In particular, conservatives do believe that Congress should have and use the power to regulate interstate commerce — which includes the power to deregulate ("regulate" here meaning "make up rules," which may be more laissez faire than state rules). Many also believe that Congress should be able to keep states from regulating even intrastate commerce in ways that cause serious harmful effects in other states, though that is somewhat more controversial.

3. Product liability does have substantial interstate effects. The Ninth Circuit decision in 2003 holding Glock potentially liable for violating California law by its sale of products in Washington State is a great example. California law was applied in a way that would lead reasonably cautious distributors to have to change their behavior throughout the country, not just in California; California law was thus in effect regulating commerce in other states. (The federal court was purporting to apply California law, since in this case the court's jurisdiction stemmed only from the parties' being citizens of different states, not from the lawsuit's being based on federal law.) It thus makes sense for Congress to step in, in order to keep state law from having such extraterritorial effects.

The same is often true in other product liability cases. First, product distributors can often be held liable in state A based on sales in state B. Second, local juries may prefer to redistribute wealth from out-of-state corporations to in-state consumers, which also interferes with interstate commerce.

Now this argument doesn't always work. The case for federal regulation is weaker as to medical malpractice, for instance, since much medical care is provided intrastate. Likewise, some hard-core federalists would argue that Congress should only preempt product liability when the lawsuit is based on out-of-state sales (or possibly when the lawsuit is against an out-of-state distributor). But softer-core federalists might conclude that it's enough that product distribution is generally a national business, just like transportation and communications (which are primarily federally regulated) are national businesses, and that it therefore makes sense for the regulations of the entire sector to be basically federal rather than state.

4. Federalists don't care just about federalism. As I mentioned, even people who care about maintaining state autonomy do think that Congress should have some power, and should exercise some of the power that it has — they just take a narrower view of it than people who don't care as much about state autonomy. This means that, so long as Congress has the constitutional authority to enter a field, federalists care both about state autonomy and about other values that might lead them to favor federal action.

One of the values that conservative federalists tend to like, alongside state autonomy, is relative deregulation of economic transactions (not zero regulation, but generally less regulation). They might not be wild either about administrative regulation of product features or about jury regulation. Another value is the rule of law, in the sense of having relatively clear and predictable rules about what people ought to do. This might make them conclude that if any regulation is proper, it should indeed be clear rulemaking by the legislature or by administrative agencies, and not ad hoc application of vague "reasonableness" standards by juries.

So some conservatives might reasonably say: "We do prefer state autonomy over federal power. But when Congress has the constitutional power, as it does with regard to interstate commerce, and even as to commerce generally, given the current state of constitutional law, we may conclude that the values of deregulation and legal clarity should trump state autonomy."

Incidentally, principled people on all sides of the political debate sometimes have to make such judgments. Liberals may care both about liberty and equality, and so long as they think the Constitution allows certain restraints on liberty, they may favor such restraints (for instance, on freedom of association) in the name of equality. They may be morally mistaken in doing so; but they may well be quite true to their principles, even when they err in figuring out how to reconcile those principles.

So for all those reasons, I think there's ample justification for conservative calls to limit product liability, since this would generally involve Congress changing the regulatory scheme for interstate commerce to make it less restrictive and more predictable. There is less justification for conservative calls to limit medical malpractice liability, but there is still some, given that medical care does have important interstate dimensions. I agree — as one who does value state autonomy quite a bit — that it would be good if all these preemptive schemes were crafted to minimize the effect on purely intrastate commercial transactions. But the big picture project of restricting the regulation of interstate commerce imposed by the tort liability system strikes me as quite proper for federalist conservatives.

Related Posts (on one page):

  1. Tort Reform and Federalism:
  2. Federalism and Tort Reform:
"What a Waste":

Andrew Sullivan writes:

DEAR PRUDENCE: Slate's often diverting advice columnist answers a gay correspondent who's offended when someone finds out he's gay and says: "What a waste." Here's Prudence's reply:

Prudie believes you are misinterpreting the remark. Rather than implying that the gay person has "no sort of life of their own," Prudie finds it to mean, "You are GORGEOUS." (And it's the straight person's loss that you bat for the other team.) It is meant both as a compliment and a lighthearted statement. As you may have divined, Prudie has made this comment, herself, and always to a big smile in response.

Well, almost. The key way to figure this out is to reverse roles. If it emerges in conversation that a man is married to a woman, would he be offended if a gay guy were to say, "What a waste"? I think he would. Or am I wrong?

Here's my take: If a straight man is offended by a gay guy's saying "What a waste," I suspect that it's because the straight man is a bit put off by the idea of the gay guy being attracted to him. Remember that "what a waste" here would be shorthand for "what a waste that you [a man] are having sex with women, rather than having sex with men." The straight man isn't being insulted as such — there's nothing pejorative about the statement. Rather, he's being asked to confront a mental image that he may find (rightly or wrongly) somewhat disgusting.

Are gay men likewise disgusted by the mental image created by "what a waste that you [a man] are having sex with men, rather than having sex with women"? Do they think "sex with women, yuck, I wish I wasn't led to think about that"? If so, then I can see why they'd be offended, though again it's a "disgusted" sort of offense rather than an "insulted" sort.

But if not — if, for instance, gay men are more used to (and thus less bothered by) the mental image of men having sex with women, because it's more pervasive in society, than straight men are to the mental image of men having sex with men — then there doesn't seem anything much offensive about it. The question might or might not have a different answer for lesbians.

At the same time, it's not clear to me that "what a waste" is likely to be particularly charming -- even if not offensive -- in either context. Compliments on one's sex appeal are pleasant in part because one likes the idea of being appealing to people like the complimenter. Even if a straight woman is happily married, she likes to know that men find her attractive; even if a straight man is happily married, he likes to know that women find him attractive. But I suspect that many gay men aren't as interested in knowing that women think them to be hot (though I might be mistaken); it's just kind of pointless, so don't expect the gay man to be especially thrilled by such a compliment.

On the other hand, here's something we can all agree on: If a woman says to a man "what a waste," after being told that the man is straight, then the man isn't going to be thrilled.

Related Posts (on one page):

  1. Follow-Up on Gays and "What a Waste":
  2. "What a Waste":

Thursday, December 16, 2004

Federalism and Tort Reform: On the Greedy Clerks board, AWC raises an interesting question: are conservatives hypocritical for favoring federal tort reform? After all, conservatives are usually in favor of limited federal goverment. When it comes to tort reform, however, many conservatives sing a different tune: suddenly they switch to talking about the dangers of state regulation and the need for federal protection of businesses. Are these conservatives just a bunch of hypocritical fair-weather federalists who want to protect businesses but not people? Or are pro-plaintiff state courts effectively creating inconsistent state regulatory schemes — exactly the kind of problem that the Commerce Clause power was designed to address?

  I have enabled comments.

Related Posts (on one page):

  1. Tort Reform and Federalism:
  2. Federalism and Tort Reform:
Tom Palmer on "Libertarians" Defending the Bad Guys in Eastern Europe?

Tom Palmer has several posts on this (see here, here, and here). Thanks to Jacob Levy for the pointers.

Incidentally, I'm not opposed to helping foreign bad guys on occasion -- consider helping Stalin against Hitler, or helping dictators against Communists. (Sometimes this may have been mistaken, but often it was not; the South Koreans are, I suspect, much better off because we supported their leaders against the North Koreans, even though for decades South Korea was indeed ruled dictatorially.) But that you sometimes have to choose a lesser evil against a greater evil is no excuse for choosing the greater evil against the lesser. I am not an expert on Eastern Europe, but from my lay perspective, Yushchenko et al. are surely better than their rivals; and it's a shame that some Americans are backing those rivals.

"No-one Is Trying To Take Away Your Guns":

I've often heard that line from gun control advocates, who are trying to pooh-pooh people's concerns that some seemingly modest gun controls are just the prelude to much broader gun bans. Well, here's what the AP reports reports:

San Francisco supervisors want voters to approve a sweeping handgun ban that would prohibit almost everyone except law enforcement officers, security guards and military members from possessing firearms [I assume they just mean handguns -EV] in the city.

The measure, which will appear on the municipal ballot next year, would bar residents from keeping guns in their homes or businesses . . . .

Under the language of the measure, the ban would not apply police officers, security guards, members of the military, and anyone else "actually employed and engaged in protecting and preserving property or life within the scope of his or her employment." . . .

So in Washington, D.C., handguns are generally banned, and people may not even keep rifles or shotguns loaded and ready for self-defense. In Chicago, handguns are generally banned. San Francisco is trying to do the same. And no-one is trying to take people's guns?

Of course, some might argue to pro-gun-rights people living in (say) Texas or Florida or Virginia, "no-one is trying to take your guns — only those of people in more pro-gun-control places, like San Francisco." That, though, presupposes that gun rights activists are only interested in their own rights. Why should anyone assume that?

I take it that abortion rights activists in California wouldn't be persuaded by anti-abortion activists' arguments that "Oh, don't worry, we won't ban abortions in California, since obviously we wouldn't have the votes; we're just trying to ban them in Texas." Presumably the abortion rights activists would say that they care about what they see as the fundamental rights of people all over the country. Likewise, I would think, with gun rights activists.

(It's possible that courts will conclude that the ordinance is preempted by state law, as they did with a similar San Francisco ordinance passed in 1982, and backed by then-Mayor Dianne Feinstein; but given recent developments in state law, including the upholding of a West Hollywood ban on sales of so-called Saturday Night Specials, it's not clear that the courts would indeed do so.)

UPDATE: The ordinance is even broader than it sounded like at first -- it would ban the sales of all firearms and ammunition, including shotguns and rifles, though it would only ban the possession of handguns. Of course, this wouldn't keep people from buying them out of town, but presumably its backers would like to see similar law enacted in other cities, too. Here are the operative provisions:

[2.] Within the limits of the City and County of San Francisco, the sale, distribution, transfer and manufacture of all firearms and ammunition shall be prohibited.

[3.] Within the limits of the City and County of San Francisco, no resident of the City and County of San Francisco shall possess any handgun unless required for professional purposes, as enumerated herein. [The law then exempts various government employees, armed forces members, and professional security guards doing their jobs.] . . .


How did our Chief Conspirator miss the obvious Caddyshack joke? "You don't have to go to college. This isn't Russia. Is this Russia? This isn't Russia." From (believe it or not) the Chevy Chase Quotes Page. I doubt that Chevy's latest quotes will make the cut.

Habeas Jurisdiction in Saudi Arabia: The Bush Administration's claims of legal authority relating to the war on terror have been taking a beating in the courts recently. The latest round is a decision by Judge John Bates of the U.S. Distict Court for the District of Columbia finding federal court habeas jurisdiction over claims by a U.S. citizen held in Saudi Arabia by Saudi authorities, although at the direction of U.S. officials:
[T]he Court holds that the United States may not avoid the habeas jurisdiction of the federal courts by enlisting a foreign ally as an intermediary to detain the citizen. The instances where the United States is correctly deemed to be operating through a foreign ally as an intermediary for purposes of habeas jurisdiction will be exceptional, and a federal court's inquiry in such cases will be substantially circumscribed by the separation of the powers. Nonetheless, the executive's authority over foreign relations has never in our nation's history been deemed to override entirely the most fundamental rights of a United States citizen — the right to challenge as arbitrary and unlawful his detention allegedly at the will of the executive. This authority likewise has never been held to eliminate the essential remedy against such unlawful detentions — the Great Writ of habeas corpus.
  At first blush, I don't think the case has far-reaching consequences. The petitioner was a citizen, and very few detainees are. Still, it's interesting to note that the opinion uses some pretty strong language, and was written by a judge nominated by George W. Bush.
"Record Sentence" for Computer Crime: Several people have asked me what I think about the AP story, Hacker Gets Record Sentence for a Computer Crime. The story reports:
  One of three Michigan men who hacked into the national computer system of Lowe's hardware stores and tried to steal customers' credit card information was sentenced Wednesday to nine years in federal prison.
  The government said it is the longest prison term ever handed down in a computer crime case in the United States.
  It's hard to be sure based on the press reports, but my sense is that there really isn't anything interesting about this case. First, a technical point: this is not the longest prison term ever handed down in a computer crime case. It's probably the longest for a computer intrusion crime, but there are lots of computer crimes that don't involve computer intrusions. For example, there have been many longer sentences for Internet-related child sex offenses.

  In terms of the sentence, it seems that Salcedo pled guilty to wire fraud and hacking. His sentence would be determined like any other sentence for a white-collar crime; the law treats all white-collar crimes as the same (this is an enormous overgeneralization, but should work for these purposes). I don't know the details of the plea, but assuming the Court applied the sentencing guidelines the range of punishment would be determined by the dollar value loss of the crime attempted. When a hacker is picking up credit card numbers, he can get a lot of card numbers; a lot of card numbers means lots of damage and a higher punishment. That's what explains the 9-year sentence. According to earlier press reports, there was a possible cooperation deal, but I gather it fell through.

 Hard to know more without really digging into it. Thanks to Scott and the little blurb thing over to the right for the link.

A number of interesting occurrences over the past few days with respect to the efforts by lawyers to maintain and expand our cartel.

First, this interesting paper by Mario Pagliero on the effects of professional licensing in the US market for lawyers finds that the structure of lawyers' cartel entry-restrictions and rules is better explained by a capture theory of regulation, rather than a public interest theory of regulation. The author concludes that licensing "increases annual entry salaries by more that $20,000" and that this implies a total transfer from consumers to lawyers of 36% of lawyer's wages and a total welfare loss of over $6 billion.

Meanwhile, efforts by lawyers to increase those figures continue apace. Fortunately, the FTC has had two recent successes in trying to roll back overzealous efforts by lawyers to expand their cartel through expansion of Unauthorized Practice of Law (UPL) regulations, to try expand the definition of the "practice of law." In Ohio this effort was defeated, as the state Supreme Court has just ruled that one need not be a lawyer to represent someone else in a proceeding before the state workers' compensation board. This ruling is especially important, in that lawyers appear to have staked out state workers' compensation systems as a new frontier for expanding lawyers' exclusive control. In fact, of course, the whole point of workers compensation systems was to have an informal mechanism for processing these sorts of claims, thus it is especially ironic that lawyers have tried to expand their reach into this area.

In West Virginia the state Supreme Court of Appeals overturned an opinion of the state bar's unauthorized practice of law section which had attempted to require that lawyers perform many functions in real estate closings that are currently performed by title insurance companies and lay closers. The effort of lawyers to expand their monopoly on real estate closing services if, of course, a longstanding one and as the FTC reports in its submission, empirical evidence indicates that consumer real estate closings costs substantially more in states where lawyers are required to conduct the closing than in states that allow "lay closings," with no discernible change in quality.

These sorts of results explain the value of the FTC's competition advocacy program as I have explained in a forthcoming article on "The Theory and Practice of Competition Advocacy at the FTC". Lawyers always have a narrow and parochial interest in expanding the domain of human activity subject to their cartel. This is especially dangerous in a situation such as UPL rules, where the rules are usually set by the state supreme court, rather than by a legislature. As Pagliero concludes, lawyers have been quite successful at this and the result has been a substantial wealth transfer from consumers to lawyers. By commenting on the competitive consequences of these sorts of regulations, the FTC can shine the light of economic reasoning on these self-serving laws. While not always successful, as the successes in Ohio and West Virginia indicate, they are often successful in preserving the benefits of competition and consumer choice for American consumers.

Of course, strong kudos to the Supreme Courts of both the states of Ohio and West Virginia are also appropriate, as their willingness to stand up to their colleagues in the bar and do the right thing for consumers in these cases is crucial.


And this from the FTC and DOJ, hot off the presses this afternoon. From the press release:

The Federal Trade Commission and the U.S. Department of Justice's (DOJ) Antitrust Division today released a joint letter urging the Massachusetts Bar Association to narrow substantially or reject a proposal by the Massachusetts Supreme Judicial Court that would unnecessarily reduce or eliminate competition between nonlawyers and lawyers to provide many services. The FTC and the Department said that the proposal likely would lead to higher prices and a reduction in competitive choices for consumers.

According to the letter, signed by FTC Chairman Deborah P. Majoras and the Department's Assistant Attorney General for Antitrust R. Hewitt Pate, the proposal, a model definition of the practice of law, could be interpreted to prevent real estate agents from explaining smoke detector or lead laws to clients; prohibit software makers from selling will-writing and other software; and prevent many advocacy organizations and individual advocates from competing with lawyers to provide citizens with information about legal rights and issues and to help them negotiate solutions to problems. The proposed definition also could prohibit income tax preparers, accountants, investment bankers and other business planners from providing advice to their clients that includes information about various laws.

Russia and America:

In State v. Aloi, Connecticut Appellate Court, Dec. 14, 2004,

Officer Jay Salvatore approached and advised the defendant that [a witness] had complained that the defendant was trespassing and possibly had damaged [a] fire truck. Salvatore requested that the defendant produce identification. The defendant did not immediately hand over his identification. The defendant also stated that he did not need to produce identification, that he was on public property and that "this isn't Russia. I'm not showing you any . . . ."

The defendant was convicted, based on these actions, of interfering with a police officer, but the Appellate Court reversed. Refusing to identify oneself and saying "this isn't Russia. I'm not showing you any [identification]" was perfectly legal under Connecticut law. Though Connecticut might have enacted laws that require certain people to identify themselves (though not necessarily to show an identification document) when told to do so by the police -- see the Supreme Court Hiibel case from several months ago -- the court concluded that Connecticut law didn't require this, and that in any event the "this isn't Russia" line wasn't threatening and thus wasn't criminal obstruction. (The defendant's convictions for actually damaging the fire truck were upheld — as best I can tell, the defendant was indeed guilty of that.)

Or, in the words of Judge Kozinski, quoting a Russian,

There are places where, until recently, "everything which [was] not permitted [was] forbidden. . . . [W]hatever [was] permitted [was] mandatory. . . . Citizens were shackled in their actions by the universal passion for banning things." Yeltsin Addresses RSFSR Congress of People's Deputies, BBC Summary of World Broadcasts, Apr. 1, 1991, available in LEXIS, Nexis Library, OMNI file. Fortunately, the United States is not such a place, and we plan to keep it that way.


I don't listen to country music much, but was amused to see the title and lyrics to one of the Grammy Nominees for best Country Song, "It's Hard To Kiss The Lips At Night That Chew Your Ass Out All Day Long," by The Notorious Cherry Bombs (written by Rodney Crowell & Vince Gill).


A reader pointed me to the Wal-Mart website for a sample of this romantic tune (the bad word is edited out) and I found it on too.

Mile High Club: The FCC has voted to allow airlines to provide wireless Internet access on flights. Who needs tireblogging when you can have jetblogging?

  UPDATE: As sometimes happens when the press reports on legal developments involving new technologies, it appears that some news stories about the FCC ruling are somewhat inaccurate.
  Misreporting abounded today about the FCC's air-to-ground wireless spectrum decision: What really was decided in order FCC 04-287? That 4 MHz in the 800 MHz band designated for commercial air-to-ground use will be auctioned. More on how the auction will be decided in a moment.
  Reports were all over the board in describing the decision, however, partly because of the way in which the press release was written. If you don't know spectrum, as many business reporters still do not, then you can easily misunderstand what was covered.
  Many articles stated that the decision would allow Wi-Fi on board planes. But that decision was made years ago, and is why Connexion by Boeing is allowed to operate using Wi-Fi for its satellite-to-air service.
Read more here. Thanks to Instapundit for the pointer.

Wednesday, December 15, 2004

AP Issues Correction on the Lani Guinier Story:

Here it is:

In a Dec. 10 brief and story about Bernard Kerik's withdrawal as homeland security secretary-designate, The Associated Press reported erroneously that Lani Guinier, who was President Clinton's choice to head the Justice Department's civil rights division in 1993, had not paid taxes for a domestic worker. A spokesman for her at Harvard Law School said there was no such problem, and the White House never indicated that there was. Clinton said he withdrew her nomination because of her legal writings on racial issues. The same incorrect reference to Guinier and unpaid taxes on a domestic worker was in a 1995 AP item about Clinton choices who had problems in the confirmation process.

Related Posts (on one page):

  1. AP Issues Correction on the Lani Guinier Story:
  2. Washington Post Corrects Itself as to Guinier:
  3. How Quickly They Forget:
Rethinking Yarbrough: Can an Ohio court punish the gruesome murder of two college students that occurred in Pennsylvania? In a capital decision issued a few weeks ago, the Ohio Supreme Court concluded that the answer was "no." Yale 2L Chris Muha is now looking for help with a motion for reconsideration of that decision. The unusual twist: Chris's younger brother Brian was one of the college students who was murdered. Read more, and perhaps leave a comment, here.
Auditions Are So Patriarchal:

Early this year, I blogged about a controversy related to The Vagina Monologues, in a post titled "Life Imitates The Onion." An excerpt:

David Kaufman points to this fantastic story:

They silently stood hand in hand with gray duct tape pasted across their lips and "Vagina Warriors" emblazoned on the back of their white shirts. The front of the shirts had different messages: "Warning: Hostile Vagina," "Not all vaginas are skinny, white + straight" and "My cunt is not represented here."

About 10 people gathered in front of Agate Hall on Friday to protest what they called a lack of representation of different kinds of women in "The Vagina Monologues" production, which ran Thursday through Saturday at the Agate Hall auditorium.

In flyers handed out to audience members at the show, University graduate Nicole Sangsuree Barrett wrote that while there was "diversity" in the show, it was minimal. Women of "a variety of skin colors, body sizes, abilities and gender expressions" were not adequately represented, she said.

"I would just like to call attention to the fact that this could have been a more diverse cast, but a safe and welcoming environment was not created for people that I consider to be 'underrepresented,'" Barrett said in the statement. . . .

[Barrett] added that the show's organizers didn't offer a safe space for people of different backgrounds.

"Know that what you are seeing tonight is not the result of an inclusive process," Barrett said in the statement. "Know that this space was not one where honest questions and concerns about race were tolerated." . . .

[Senior Melissa Ballard said] only one . . . woman of color remained in the show. "Plus size" and queer women were also not well-represented, she said.

[Senior Natalie Mays, the show's assistant director,] said she completely understands and supports the need for diversity.

"No way would I intentionally alienate anyone," she said. "It breaks my heart that different people feel alienated by this show."

Mays said about 85 people auditioned for the show and there wasn't a large pool of "visible" people of color to choose from. She said it is also not always possible to tell one's ethnicity or sexual orientation just by looking at the person, adding that she does not usually ask people what their sexual orientation is at an audition.

Mays, who is part Native American herself, said she mainly wanted strong women with passion and dedication when she made the casting decisions. . . .

Breaks my heart! Where's that safe and welcoming space? All cunts should be represented. And women of a variety of abilities, too (it took me a while to get this, but I think this is a euphemism for disabled women, rather than a call for women with different acting abilities, or, er, sexual skills). Priceless. If you're looking for more, check out this follow-up story in the Oregon Daily Emerald, "Tensions explode at 'Vagina' discussion." My favorite quote is in the closing paragraph: "'Nobody here is a bad person,' she said. 'Nobody here failed at the show. We failed as a community.'" It obviously takes a village to put on the Vagina Monologues.

Oh, and readers: Know that what you are seeing on this blog is not the result of an inclusive process.

I was wrong, wrong, wrong! It turns out that variety of abilities really did mean variety of abilities. Olly Ruff (Oregon Commentator Online) pointed to this article which revealed, among other things, that:

In addition to securing a more diverse cast, the selection committee will also be looking to include activists and community members who are involved with women's issues.

Pete said the committee will select people who are "not necessarily drama-oriented" in favor of "people who work (toward) 'The Vagina Monologues' mission of ending violence against women."

Women's Center spokeswoman Stefanie Loh said the de-emphasis on acting ability will provide a "down to earth" feel to the production as well as allow the producers to be more inclusive in their casting.

"The fact that they had auditions means that some people are automatically excluded," she said.

Not just some people — some vaginas! "Not all vaginas are skinny, white + straight," or, apparently, have acting ability.

The Plight of Conservatives in Academia: In the Chronicle of Higher Education, a pseudonymous assistant professor writes about the burdens of being a conservative student and then tenure-track professor. How bad is it? Pretty darn bad! One horror story after another. The tragedy begins when the author was a student and faced blatant political discrimination in his coursework:
During an "Introduction to Political Science" class, for example, I was required to write paper on how to solve global warming. My paper suggested that perhaps there was no reason to, since the scientific evidence was inconclusive. I got a D.
  Can you imagine that? The professor required his students to write a paper taking a particular position, and the author declined and decided to write on something else. And for that, a D grade! Unreal. But wait, there's more. When the author became a professor, he had to sit through an entire sentence at a faculty meeting — yes, a sentence with a noun, verb, and everything - joking about a film by Michael Moore! Here is how the author recounts the harrowing experience:
I sat through 50 minutes of my first faculty meeting on the campus with nary a mention of politics. . . . Then, in the final few minutes of the meeting, a senior faculty member arose to make an announcement: A faculty panel would discuss the impact of September 11 on the United States, with the dean of the college offering summary remarks.
  There was no hint of a leftward lean — until, that is, the senior faculty member added, "And just in case the students don't get our message on how to vote in November, we have arranged for a showing of Fahrenheit 9/11 directly after the panel."
  Can you stand it? The author had to sit there the whole time. I know, you didn't think it happened in Amerika.

  The professor also recounts a striking anecdote that demonstrates what of bunch of closeminded robots the academic left has become:
[D]uring the Republican National Convention, I ate lunch with several colleagues. The discussion turned, inevitably, to politics. The anti-Republican tenor at the table remained unbroken, but reached its zenith with this vehement comment from one colleague, "I'm not even going to watch [the convention]. I can't stand it."
  This made my jaw drop. As we all know, every true American patriot loves watching political party conventions. I am openminded enough to realize that you can be both a loyal American and yet not agree with everything said during the Republican convention, but to be so vehement as to not watch it is really, well, suspicious. And how else to explain the willingness to admit that curious decision to colleagues but as a sign of moral depravity?

  The author's story takes a particularly remarkable turn when he finds out that the students at his college are in fact suffering in silence just like he is: they're mostly conservatives, too. But of course they are afraid to admit it; they're afraid to confess to their Volvo-driving, non-GOP-convention-watching commie professors that they have their own opinions. You just can't fight the system, I guess.

  The author concludes with a Shawshank-Redemption-Meets--The-Paper-Chase sense of resignation:
Which is not to say I'm not happy here. I am. I wouldn't trade life in this most idiosyncratic of human institutions for anything. By design, academe is meant to transcend human foibles, the better to understand them. But in a masterstroke of delicious irony, academe's very humanness turns out to be the best justification for its own existence.
I don't know what that means, but I'm sure there is a masterstroke of delicious irony in there somewhere.

  (Hat tip: Instapundit)

Tuesday, December 14, 2004

LawProf Identity Theft:

Speaking selfishly, I hope it only happens when you are as famous as my colleague Jonathan Turley. (Hat tip: Matt)

Plagiarism in Academia:

A report from the Chronicle of Higher Education.

OK, Now This is Getting Ridiculous: (As if it was not ridiculous from the jump.) Matt Rustler of Stop the Bleating writes:
No, no, no. You're not Richard Belzer in your secret life. In your secret life you hawk Nexium, "The Healing Purple Pill," under the alias, James Naughton. I was watching television last night when the latest Nexium advertisement, featuring an actor named James Naughton, came on. Your cover is blown! I've attached the photographic evidence that you and James Naughton are one and the same.


(Unfortunately, I don't have a photo of "Barnaughton" in the Nexium ad, in which he's clad entirely in black, just as you are in the photo on your BU web page. That would seal your doom.) [I found a pic here--REB] I'm not thrown by your attempt to hide your real identity with glasses and a little hair coloring. How gullible do you think we are? You think Superman's example has taught us nothing?

And did you really think no one would notice the Harvard connection? According to your CV, you were a law student at Harvard Law School from 1974-1977. (Well, you graduated in 1977, so I assume you began in 1974.) And, as you of course well know, Naughton PLAYED a Harvard law student in 1973's The Paper Chase. You didn't think anyone would piece it together? You get part in The Paper Chase, decide you'd like to attend HLS in real life, and the next year you're there — as Randy Barnett. It all fits. Cold busted!
This is preposterous. Naughton's character in The Paper Chase--the doomed Kevin--was married and had a nervous breakdown. I, on the other hand, was very single and was merely annoyed while as HLS. But as Naughton is considerably better looking than Belzer, I consider this a promotion. See this Q & A from Ask Becky Smith:
DEAR MARILYN & STACY: What is the actor's name that does the Nexium commercials, he has gray hair.

DEAR QUEST: You're thinking of handsome James Naughton, who was also the spokesman for Jeep and has appeared in dozens and dozens of TV and movie projects — going back to the 1973 series "Paper Chase" and including "The First Wives Club" and "The Truth About You" with Stockard Channing. Naughton is also a singer and has graced the stage in numerous musicals.
PS: The Paper Chase came out the year before I went to law school. It is a bit depressing how old the actors playing law students in that film now look. Case in point: Edward Hermann: Edward Herman

Update: UH-OH, He's On to Me: Matt Rustler smells a blogospheric conspiracy here.

Related Posts (on one page):

  1. OK, Now This is Getting Ridiculous:
  2. I see no resemblence:
Selecting for Intelligence as Causing Societal Inequality:

I don't intend to blog much more on this, but since a bunch of people raised this point, let me speak to it. The argument (buttressed sometimes by citations to the movie Gattaca) is that rich people will improve their kids' genes, which will increase social stratification, as descendants of the poorer people will find it harder to compete. I profoundly disagree with this argument.

1. If you take this seriously, it would be largely an argument against private education (and I've heard the argument made this way), since of course private education lets rich parents improve their kids' competitiveness relative to poor kids. You might even be upset when smart people marry other smart people.

Would you support "breeding for equality," in which smart people self-consciously try to marry dumb people, so their kids wouldn't have too much of an unfair advantage? Or how about programs that try to persuade smart men that the feminine ideal should indeed be the dumb airhead woman (and, of course, to persuade smart women that they should marry dumb men)? Yes, I realize that there's potentially a significant difference in degree between the IQ benefits to be gained by genetic engineering and the IQ benefits to be gained by lay genetics (i.e., smart people marrying smart people) or education. But I stress the "potentially," and in any event the principle strikes me as quite similar.

2. Technological progress is on balance very good, and generally speaking it's disproportionately produced by smart people (technologists, businesspeople, and so on). More smart people means more chance of cures for disease, of better transportation and information technology, of space flight, of good environmental inventions, and so on. Yes, it's true that smart people do harm, too; if Hitler had been dumber, the 20th century might have been less bloody. But on balance, I'm pretty sure that it's good for society generally to have more smart people.

3. Most technologies -- computers, CD players, and the like -- start out expensive enough that only rich people or institutions can afford them, but then, with technological development and economies of scale, the price falls, and more and more people can access the technology. Some Americans may be too poor to afford them, but most Americans can afford technology that provides most of the key features. Rich people can still afford better stuff, but the marginal quality difference between what the 90th percentile can afford and what the 50th percentile can afford isn't that vast. (Consider, for instance, personal computers.)

So if you're concerned that only the top 5% will ever afford getting higher IQ for their kids, that seems highly unlikely. And if you're concerned that only the top 70% will afford it, and oppose the technology because of the bottom 30%, then I think you have the wrong set of priorities. Work on ways to eventually make it accessible even to the bottom 30%, rather than denying it to the top 70%.

There's an old Soviet joke about the man who visits Hell. In Hell, there are three giant cauldrons in which the sinners are being boiled. On the rim of one stands a regiment of demons, shoulder to shoulder, constantly using their pitchforks to smack down the sinners who are trying to escape. On the rim of the second walk a few demons, who occasionally whack someone down. The rim of the third is empty, but no-one is getting out.

What's going on here?, the visitor asks. "There are three kinds of people," the Devil says. (In the original joke, they are Jews, Russians, and Ukrainians, but in honor of the Orange Revolution I've sworn off Ukrainian jokes . . . .) "The first kind is in the first cauldron. When one looks like he's trying to escape, all the rest follow him. We need a lot of demons to manage them.

"The second kind is in the second cauldron. Occasionally someone is trying to escape, but the others don't pay any attention. It takes just a few demons to deal with this kind.

"The third kind is in the third cauldron: When one is starting to escape, all the others drag him back down by the ankles."

Don't be that third kind.


The "coincidences" multiply ...

Federalism Revolution?: Adam Cohen suggests in The New York Times that the Supreme Court may be on its way to declaring the New Deal unconstitutional. If you think this is likely, I have a game for you: name the last Supreme Court opinion that ruled in favor of the states or limited federal power in a case that had clear federalism overtones.

  If I'm not mistaken, it's been quite a while. The most recent federalism cases decided by the Court are Sabri v. United States, Tennesee v. Lane, Alaska v. EPA, and Frew v. Hawkins. The federal government's side won all of these cases; Frew and Sabri were 9-0. If the Supreme Court is on its way to undoing the New Deal, the Justices must relish the element of surprise.

I have received a surprisingly large amount of email in response to my post on money markets investments and Social Security. To remind everyone, the small point I was making was that even if people can invest some of their Social Security money that does not mean they have to invest it in the stock market. They could invest it essentially risk-free in a money market account and get a low-risk, low-return payoff. So no one is being forced to accept risk that they don't want. (A particular witty response that I enjoyed was whether political critics would consider it "too risky" if people invested their portion in Treasury or other government bonds.)

Most emails, however, did not respond to that particular point but were more general. It is said that I have missed the point about the purpose of Social Security. The argument is essentially that notwithstanding the fact that people could invest in money market funds, some people might foolishly invest in the stock market (for any number of proffered reasons), and the purpose of Social Security essentially is "stupidity insurance"—i.e., to protect people from their own stupidity. Relatedly, it is also to "keep old people from starving in the streets."

It may be obvious to point this out, but the alternative to Social Security is not that old people will be destitute. It is just that old people might not get to retire (and worst case scenario might have to work until they died), or more realistically, that they might have to work longer in order to get enough money to retire at 70 or 75 instead of 65. And the proposal on the table isn't even to eliminate SS, it is simply to allow people to invest some of it, and the concern is that some people might invest their sliver poorly. So no able-bodied person will be destitute if he makes bad investments, he might just have to retire at 68 instead of 65 (and if he makse good investments then he can retire at 62) .

Retirees who aren't able-bodied are covered by a huge web of other social welfare programs, not the core Social Security program that we are discussing. So the recurrent theme of my email traffic that old people will be destitute because of bad investments is not a coherent position. It may be unfortunate that someone who makes good investments can retire a few years earlier than someone who makes bad investments, but that is a long, long way from saying grandma will be sleeping in a cardboard box. But first consider why the "stupidity insurance" argument doesn't add up more generally.

The Stupidity Insurance Argument Proves Too Little. First, the "stupidity insurance" argument proves too little in that it doesn't explain Social Security as it actually exists. First, imagine a hypothetical able-bodied guy who makes such stupid economic decisions that he decides to never gets a job—say he lives with his parents at home his entire life, plays Madden on Playstation 2 all day, and lives off an allowance from his parents. He turns 65. His parents die. He has no job and he is destitute. Is he eligible for SS? No—because he never worked and never paid into the system. You have to actually work a certain number of quarters during your life in order to be eligible. The primary purpose of SS is simply not a social welfare program designed to keep people from being destitute, or stupid guy would be entitled to SS. The logic has something to do with something like an earned entitlement—and part of that earned entitlement involves making the decision to work rather than not work. Second, it pays benefits to high-income people who don't need it. Surely there are plenty of other eligibility requirements that prevent someone from receiving SS. Nothing about eligibility turns on someone's income or how destitute he is or how stupid his economic investments have been. Again, those are covered by other social insurance programs.

Nor does Social Security actually insure you from being destitute. You could take your SS check every month and invest it speculating in the stock market and if you make bad investments you are still destitute. It is still up to you not to make stupid investments, so it simply changes the time of the decision to post-retirement rather than pre-retirement. Or you could have very high credit card bills or other liabilities when you retire, such that almost all your money goes to paying your creditors. It is not clear to me why a 64 year-old cannot be trusted not to invest his social security entitlement in the stock market wisely prior to retirement, but can be trusted as a 65 year old post-retirement to spend his money wisely. So unless we actually control every investment someone makes, we are not providing destitution insurance anyway.

The Stupidity Insurance Argument Proves Too Much. It also proves too much, in that it doesn't explain why we would prohibit this one particular "risky" investment, but allow people to make all kinds of other risky investments that could make them destitute. If the idea is to protect people from their own stupidity, what do we do about the guy who drops out of Harvard to start his own computer company (which will probably fail)—and is not named Bill Gates? Or someone who uses his kid's college fund to start a new business? Most new businesses fail, and when they fail, people often lose their life savings and could become destitute (although they wouldn't be entitled to Social Security). Should we prohibit people from investing their life savings in a new business (rather than forcing them to put it into a passbook savings account) because they are too stupid to realize what a bad investment it is? Indeed, could we in good conscience ever allow someone to quit their job to try to become a painter or an author? Should we only allow 30 year olds to start a new business but not 58 year olds because the latter is too close to retirement age?

In short, if there is a coherent justification for Social Security (and opposition to SS reform) it must be something more along the lines of what I understand it actually to have been its original purpose when it was set up during the New Deal—that Social Security is a retirement entitlement that people earn by working. The idea is that people who work hard for their adult lives are entitled to some degree of leisure in their golden years. And that regardless of whether Homer Simpson works for 25 years as a blue-collar worker at Springfield Power or Montgomery Burns works for 25 years as the president of Springfield Power, they are entitled to the same minimal degree of comfort and leisure in retirement, regardless of what they earned while working. What matters is that they both worked hard for the requisite number of years—if you work, you get it and if you don't work you don't get it. Paternalism and protecting old people from destitution have nothing to do with this. Thus, the program is in fact designed to have some redistributionist, or perhaps more accurately stated, "equalizing" component to it.

This might also provide an argument for why we are concerned about people frittering away some of their SS on bad investments. If you invest the bit of your money that would otherwise go in SS in a bad investment, that may mean that you have to work an extra couple of years before you retire. If we think that people have an entitlement to retire at the age specified by SS, then perhaps this is contrary to the purpose of SS. I personally don't find the argument to be all that persuasive, but it strikes me that a persuasive argument against Social Security reform must be grounded in the actual purpose of the program, rather than overwrought and unrealistic concerns about starving old people.

I see no resemblence: The same reader who wrote the previous post, thinks I have a secret life.

Me: Me

Richard Belzer: Richard BelzerFor another image, click here.

Apparently, he is not alone. Click here and here. I myself can't see the resemblance, but I do wear black a lot. Coincidence?

Related Posts (on one page):

  1. OK, Now This is Getting Ridiculous:
  2. I see no resemblence:
All the Power of the State: In closing argument, criminal defense lawyers like to contend that "with all the power of the State at its disposal" why did the prosecutor not produce this or that item of evidence? Well ordinary state court prosecutors (not attached to some special unit) have very little investigative power at their disposal. Our own "investigators" are no Andy Sipowicz's and, once the case is filed, the Chicago Police Department investigators, who do not work for the County, have no obligation to do anything for the prosecutor--though many do so out of a sense of duty to the case and camaraderie with prosecutors they respect.

This is illustrated by the story, to which I alluded yesterday, concerning the difficult process of bringing charges against the cousin of a rape defendant who had tried to intimidate the jurors in the case. I wrote:
I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.
To which one reader responded:
I would say: "Tell it! It sounds like a fascinating story." It's hard for us lay folk to find interesting stories that look into the system like this one would, and like your latest post did. So by all means - write it!
OK, you twisted my arm, but it might not be as interesting as you thought.

I first went to my supervisors who would have to approve any felony charges being brought for intimidating a juror. They decided (unsurprisingly) that writing down plate numbers and pointing after the trial was over was not a compelling case for a felony. I searched the statute books and found the misdemeanor crime of "Communicating with a Juror," the elements of which seemed to fit the facts and misdemeanors did not require a supervisor's approval to bring. (I am relating this from memory so the title of the statute could be off.) I then had to find a judge before whom I could swear out a complaint and ask that a warrant be issued. There was no obvious court to go for such a charge, but I found a judge in the building (the Criminal Courts Building at 26th and California) who was willing to do both.

All this was the easy part.

The hard part was getting the guy arrested. You would think that an arrest warrant would be enough, but you would be wrong. There are many thousands of outstanding warrants and, unless there is some compelling reason, the police are not out looking for any of the persons who are supposed to be arrested. Most arrest warrants are served only when someone is arrested in the act for some other crime, or stopped for a traffic violation.

There are (or at least were in those days) "warrant officers" in every police district, so I called several times to get them to execute the warrant. But no luck, and no surprise. Warrant officers were not famous for the diligence with which they performed their duties. After a few days, I called the District Commander and offered (this is the awkward part of the story) a week's worth of "time due" slips to anyone who would arrest this guy. (Time due slips were intended to compensate officers for time spent in court with time off the job.) Within 24 hours, he was in custody.

I then needed to go to the courthouse in another part of the city where the charges were pending to ensure that the case would not slip between the cracks. Rookie prosecutors in misdemeanor courts might not know enough to take the matter seriously. In addition to being arrested and having to come to court, the guy had to hire a lawyer. After a few appearances, I assisted in plea bargaining the case to a form of probation known as "supervision." If he got in no other trouble over the period of supervision, his criminal arrest could be "expunged" or removed from his record--a process for which he would have to again pay a lawyer. (Of course, the whole process was burdensome for me as well, as it was over-and-above my duties to develop my felony case files and try cases in the court to which I was assigned.)

Eventually, I talked to the guy and he confirmed my original instinct: he was just an ---hole. But my point was made. He had come into "my house" (the criminal court house) and disrespected me (as they now say), the victim, and the jurors. He needed to be taught that this was not kosher. Eventually, he was pretty contrite about the whole thing. Most importantly, I had backed up the jurors who had asked for my help. Notice from the original story that I had taken no action when the guy had tried to intimidate ME besides having him identified in case he became more of a threat that I thought he was. But when the jurors asked for my assistance, I felt bound to support them as they had done their duty as jurors as I had asked them to do in my closing argument.
Jews as an Ethnic or Even Racial Group:

A reader writes:

I was offended by the way Blunkett, and, for that matter, you, glided over the concept that Judaism is a racial characteristic. Jews are not a race, any more than Anglicans or Catholics. Part of the persistence of anti-semitism lies in the thoughtless assumption that there is a race of people known as Jews, instead of a collection of individuals who have certain beliefs.

Well, everyone has a perfect right to be offended by whatever they please. Nonetheless, as I noted in my post, Jews are an ethnic group, though Judaism is also a religion. People can be ethnically Jewish though irreligious — many Jews are.

Certainly many anti-Semites hate Jews without regard to their religion; the Nazis went after the irreligious Jews as well as the devout Jews, and so did the Soviets. Much anti-Semitic propaganda focuses on Jews' supposed ethnic or cultural traits, not their religion. Nor is this just an anti-Semitic view; as I understand mainstream Jewish religious teachings, someone whose mother is Jewish, which is to say generally someone who is ethnically Jewish, is "Jewish" for purposes of Judaism even if he is an atheist.

I realize that there's some fuzziness about the definition of "ethnicity" (it usually turns on people's descent, but descendants of converts to Judaism may often be treated as ethnically Jewish, just as descendants of people who moved to Ireland not long ago may often be treated as ethnically Irish — especially when the descendants are now not in Ireland in any more, and especially if they characterize themselves as Irish). But there's also fuzziness about what constitutes "race." Suffice it to say that an ethnic group is a group that's usually linked by descent and culture, and that perceived itself and is perceived by others as an ethnic group. We need not delve further into this here, except to say that Jews are often treated as an ethnic group much as are Irish, Poles, Gypsies, and so on.

I prefer to use the term "ethnicity" rather than "race" to refer to Jews. Historically, however, the term "race" has also included what we now think of as ethnicity, so Jews, Italians, Irish, and such were sometimes called "races" rather than just ethnic groups (see here). I inferred from the article in the English newspaper that U.K. "incitement of race hatred" law either explicitly applies both to races and ethnic groups (Jews, Irish, and the like), or applies to races but with "race" interpreted — as one important old U.S. statute is interpreted — to include ethnic groups. (UPDATE: Reader Dan Neidle confirms, saying that "[t]he relevant legislation (Part III of the Public Order Act 1986) defines 'racial hatred' to mean 'hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.'")

Related Posts (on one page):

  1. Jews as an Ethnic or Even Racial Group:
  2. Slippery Slopes in Action:
A New Phrase for Bloggers?

"Spending Delaware time" (or "Delawaring") -- spending at least 20 hours a week on one's blog, enough to be treated as a journalist for the Delaware journalist's privilege.

Faulted for Spending Too Much Time Blogging?

"Honey, aren't you spending too much time posting to that blog of yours?"

"Darling, I'm just trying to make sure that I'm covered by the journalists' privilege in Delaware.

(The privilege applies to "any journalist, scholar, educator, polemicist, or other individual who" "was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of obtaining or preparing information for dissemination . . . to the general public.)

Related Posts (on one page):

  1. A New Phrase for Bloggers?
  2. Faulted for Spending Too Much Time Blogging?
  3. Delaware, the Polemicist State:
And Here's a Slippery Slope I'd Embrace:

The Washington Post has an article about sex-selection technologies for couples who are planning to have a baby, and includes the following quote:

"It runs the risk of turning procreation and parenting into an extension of the consumer society," said Michael J. Sandel, a political philosopher at Harvard University. "Sex selection is one step down the road to designer children, in which parents would choose not only the sex of their child but also conceivably the height, hair color, eye color, and ultimately, perhaps, IQ, athletic prowess and musical ability. It's troubling."

Now I agree that there's likely to be a slippery slope phenomenon here, likely either an attitude-altering slippery slope or a small change tolerance slippery slope (see here). But what's at the bottom hardly seems so bad. Some of the floats in that particular parade of horrible are actually quite nice -- I'd love to choose a higher IQ for my kids, and society would generally be better if we could do that, too. (One mustn't overrate intelligence as a cure to the world's problems, but one mustn't underrate it, either.)

Now some of the selection conditions -- hair color and eye color, for instance -- seem pretty shallow. But so what? Parents do shallow things, and are entitled to do them, too, if they don't hurt their kids; and selecting hair color or eye color won't hurt their kids. Likewise, I suspect, for selecting height, athletic prowess, or musical ability.

Now I can see some possible arguments about why this might be bad. Parents who select certain traits for their kids might end up demanding that their kids live up to those traits. "You will practice the piano, and you will like it! I spent $30,000 to get you the piano gene." Maybe. But parents do that these days, too, with traits that they think their kids ought to have -- or traits that they've tried to instill through education, rather than genetics. Do we object to parents trying to create "designer teenagers" because they spend money training their kids athletically, musically, or intellectually? Do we try to suppress those educational technologies? Or do we conclude that on balance more ways for parents to try to improve their kids' futures are better, even if some parents might use those ways unwisely?

I can certainly see some objections to particular design techniques or options. If certain techniques risk kids being born with serious genetic defects, then I'd be "troubl[ed]." But I suspect most parents wouldn't want those techniques, either, and in any case that's an objection to a particular technique, not to the notion of molding one's children's genetics. Likewise if some genetic traits help kids at the expense of others (imagine a gene that makes people resistant to some contagious disease but increases the chance that they'd be asymptomatic carriers) -- troubling, but properly solved by dealing with that particular trait, not by objecting more generally to parents improving their children's lives, or even selecting relatively neutral cosmetic features (such as eye color or hair color).

Thanks to reader Greg Weber for the pointer.

Slippery Slopes in Action:

Raffi Melkonian points to the English proposal to ban incitement of religious hatred as an example of a slippery slope (what I call the "equality slippery slope"):

The British home secretary, David Blunkett, has proposed a ban on speech that incites religious hatred. The law would obviously be unconstitutional in America, I think, since it throughly fails the Brandenburg test. But far more astonishing is one of Blunkett's arguments in favor of the ban. As he puts it today in the Observer,

For example, how can a modern society say Jews are protected (rightly, because they are covered by race laws, rather than religion), yet Muslims and Christians are not? Can it be right that hatred based on deliberate and provocative untruths about a person's religion remains unchallenged?

But this is a particularly weak argument, because it doesn't explain why laws against incitement to racial hatred (but which fall below the barrier to incitement to violence) ought to exist. And for those of us who have heard Professor Volokh's Slippery Slope talk (or read the article), I can't think of a more paradigmatic example of how one undesirable law can be used to faciliate the passage of another one later.

For more on equality slippery slopes, see here (especially starting at p. 17). One way of thinking about this is "censorship envy," as some groups that might otherwise tolerate offensive speech demand its restriction when they see that speech which is hostile to other groups is restricted. (See my explanation of why this should lead us to resist calls to ban flagburning.) Or one could focus on voters in the majority, as the equality slippery slope analysis does: If one important part of a pro-free-speech majority coalition values equal treatment of speech, then carving out one exception may lead them to swing around to supporting another exception, because their preference for equal treatment (e.g., of speech that's hostile to Jews, an ethnic group, and speech that's hostile to Muslims, a religious group) overcomes their support for free speech rights.

In any case, all this suggests that supposed free speech "extremists" or "paranoids," such as those who are (sometimes) in the ACLU, aren't paranoid at all: They are quite reasonably fearful that recognizing even narrow exceptions from free speech (e.g., for inciting racial hatred) may lead to broader ones in the future (e.g., for inciting hatred towards religions, which are after all ideologies that sometimes merit condemnation or even hatred).

UPDATE: The original version of this post said "Muslims, a racial group" instead of "Muslims, a religious group," which made no sense; I accidentally used the wrong word. If you were confused by this at first, my apologies, and I hope this update clarifies it. Thanks to David Ball for pointing out the error to me.

Related Posts (on one page):

  1. Jews as an Ethnic or Even Racial Group:
  2. Slippery Slopes in Action:
State Nicknames:

My post below labels Delaware "The Polemicist State," because it seems to be the only state that includes the word "polemicist" in its statutes.

Similarly, let me suggest that Colorado, Kansas, and Texas are The Dildo States, since their prohibitions on distributing sex toys specifically mention "dildoes." Hey, at least they don't engage in circumlocutions, such as "crime against nature." (What would the equivalent for sex toys be — "devices against nature"?)

Massachusetts is The Good Humor State — not just a statute, but an actual constitutional provision (Part The second, Chapter V, section II), says:

Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.
Consider, by way of comparison, the New Hampshire Constitution, which says:
Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people . . . .
Very similar — but no good humor.

It would be tempting to likewise label Indiana The Whoredom State — it's the only state that mentions a derivative of the word "whore" in its statutes — but that would be unfair. See Indiana Code 34-15-5-1, "Every charge of incest, homosexuality, bestiality, fornication, adultery, or whoredom falsely made against any person is actionable in the same manner as in the case of slanderous words charging a felony."

Delaware, the Polemicist State:

Reader Fritz Schranck points out that the Delaware journalists' privilege covers, in relevant part:

any journalist, scholar, educator, polemicist, or other individual who either:

a. At the time he obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or

b. Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.

I love how this includes "polemicists." Just try arguing that bloggers (assuming they're professionals) wouldn't be covered by that!

UPDATE: Thanks to reader Eyal Barnea for correcting an error in my original post; I had misread the statute and concluded that it required the blogger to be a professional, but of course it requires that or spending a lot of time.

Washington Post Corrects Itself as to Guinier: It writes,
A Dec. 12 article incorrectly said that Lani Guinier's nomination to head the Justice Department's civil rights division under President Bill Clinton was withdrawn because of a "nanny problem." There was no such problem, and the Clinton White House withdrew the nomination because of controversy over Guinier's legal writings.
Good for them. AP, Knight Ridder,,, the <>Houston Chronicle, the Washington Times, and a bunch of other outlets still owe corrections as well — if any of you see such corrections, please e-mail them along.
Buckley v. Vidal: Long-time fans of either William F. Buckley or Gore Vidal are well aware of their distaste for one another. Each has spilled substantial bile on the other in print. It seems that Buckley has gotten the best of Vidal, however, not just once but twice. According to this notice, it appears that Esquire has settled a libel suit over the publication of a Vidal essay for the second time — once when the article was first published in 1969 and again when it was republished in an anthology in 2003. The notice will appear in upcoming issues of both Esquire and National Review. Of note, Vidal also attempted to sue Buckley for libel in the late 1960s, and that suit was thrown out.

Speaking of libel cases, the Washington Post has an interesting story about another case in the courts now. Here the plaintiff is seeking to use a reporter's comments on various television shows, such as Fox News' "O'Reilly Factor," as proof of malicious intent.
Forget All We Ever Said About Online Surveys:

This one is 1000% scientifically valid.

Monday, December 13, 2004

South Texas Law Professor:

The world of crimlaw lawprof blogs has just expanded: please welcome South Texas Law Professor, by lawprof Dru Stevenson.

Peterson Jurors Speak: Like many Volokh readers, I have not been following the Peterson trial very closely, if for no other reason than that I lack all confidence in the competence of California prosecutors to competently handle high-publicity murder trials. But listening to comments of the three jurors now being interviewed live by the networks, my faith in the jury trial system for criminal cases is reinforced. They are intelligent, careful, clear, conscientious and emotionally moved by their experience. Initially, I winced when I saw that the jurors were being interviewed. When I was a prosecutor, I always went to speak with jurors in the jury room afterwards, mainly to express my appreciation. I never asked them the sorts of questions these jurors were being asked. But I am glad I overcame my reluctance, and watched them soberly and thoughtfully respond to questions.

Update:This from a reader whose office put him under contraints in speaking with jurors after trials that were unknown in my office:

I share your faith in the jury system, having had the privilege of conducting a fair number of jury trials myself. Your post made me think of an issue I've thought about off and on for some time now. When I was a prosecutor in the [withheld] DA's Office (not too long ago - I'm in private practice with a firm in Washington D.C. now) we were discouraged from speaking to "convicting" juries for appellate reasons - mainly, the fear that we would hear something impugning the integrity of the process that we'd be duty-bound to report. While I understood and adhered to the unwritten rule, I often thought to myself that defense attorneys were not bound by such restrictions, and thus wouldn't it be better to be present (without actively participating) during such questioning to prevent the creation (accidental or otherwise) of an appellate issue? Or would it be better practice to do as the judge I clerked for did - mandate that he be present during any "debriefing"? Just curious about your thoughts on the matter.

I must confess that I love the entire jury trial experience, which may color my view. I always spoke with alternates, which carried it's own - mainly psychological - risks (they seemed to lean towards the opposite verdict that was ultimately reached, partial or otherwise, which to me demonstrates the power of deliberation). We were also discouraged from speaking with "acquitting" and "hanging" juries because the knowledge gained might be outweighed by the frustration the exercise would engender. The one time I had to deal with that agony was one of the most painfully educational experiences I've ever had. I was only there for 4 years, so I know I would have had to endure that unpleasant experience many more times had I stayed longer.
Perhaps the principal reason I always went to talk with jurors in the jury room after their verdict--which I had entirely forgotten when I posted--was to protect them from potentially inculpatory questions they might be asked by disappointed defense attorneys trying to lay the groundwork for an appeal. I tended not to ask them any questions, but to answer theirs and provide them with other information that confirmed their verdict, thereby personally reassuring them that their decision was well-founded. Also, they seemed to enjoy meeting counsel.

On one occasion, the day after a rape trial ended, I received phone calls from several former jurors informing me that the convicted defendant's cousin was out in the parking lot writing down license plate numbers and pointing at them as they drove home. They knew who he was because he had testified as an alibi witness for his cousin. This was the same person who (before he testified) I had asked the judge to summon into chambers so he could be identified on the record because of his attempt in the elevator to intimidate me and the victim during the trial. So when the jurors complained, having asked them to do their duty and convict the defendant, I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.

Ashcroft v. Raich Transcript Now Available On Line: Just finished reading the transcript of the oral argument from Ashcroft v. Raich that was posted today here. Of course, you always think of what you could and should have said that you did not say in the heat of argument. But since I have been doing a good deal of that for the past two weeks anyway, it is good to be reminded of what I actually DID say.

I am puzzled by one part of the argument that some have made about the supposed "riskiness" of social security reform. Albert Crenshaw, a business columnist in the Washington Post yesterday called it a "retirement crapshoot", for instance:

And now the Bush administration says it wants to do something similar with Social Security. Instead of a set of benefits fully guaranteed by the government, the administration envisions some type of "personal accounts" — details to come — that could accumulate real wealth over a worker's lifetime.

Could accumulate.

It is certainly true that people who take risks can end up very well off. The economic winners in our society are often described as risk takers. But there is no guarantee. Far from it. In fact, if getting wealthy through investing were a sure thing, there wouldn't be any risk. If that were the case, it might fairly be said that anyone who didn't do it would have only himself or herself to blame.

He continues:

Given the government's performance, the idea of investing on your own does have its appeal. Do it right and you may get rich, which you certainly won't off Social Security.

But that is not the point of Social Security. It's not a lottery ticket. Neither are employer-sponsored pensions. Instead, they are part of the social safety net that has been built up since the Depression to try to keep the elderly out of poverty.

The nation seems bent on transforming both pensions and Social Security into high-risk, high-reward systems in which the clever and the lucky thrive and the unlucky and unsophisticated are left behind.

I am not an expert on the social security reform proposal, but here's a simple question for the critics of the "risky social security scheme". Every 401(k)-type plan in which I have ever had the opportunity to participate offers as one of its investment options money market accounts, which are essentially risk-free and return modest rates of interest. I have seen comparisons of Social Security with the stock market, and the stock market wins over time hands-down. I have not seen any rigorous comparisons with money market accounts, but given the return on Social Security, surely it must be similar.

More fundamentally, if we assume that as part of the social security reform proposal, money market-type accounts are one of the available options for investing, then what's the problem? Workers won't be forced to take any substantial risk that they don't want to take and there seems to be nothing stopping them from taking the low-risk, low-reward path if they want to. Am I missing something here?


Mark A.R. Kleiman has a thoughtful response to my query. In a nutshell, he observes that the difference in risk is that between a defined benefit and defined contribution plan. True enough. But leaving aside for the moment whether Social Security is viable as a long-run defined benefit plan (which is the nub of the issue, of course), Kleiman's response seems to me to be somewhat different from the one I posed. As I understand Kleiman, and other critics (Crenshaw also suggests this), the criticism is primarily one that a more autonomy-based Social Security system would be less redistributive than the current system--i.e., the current system gives more or less the same basic benefit package regardless of income, whereas the alternative ties results more to the income and decisions of the individual investor. In short, it is an argument that people should not be forced to choose between a high-risk, high-return investment strategy versus low-risk, low-return. Lower income people, or those with less job stability should get a lower-risk, higher-return versus higher income earners. This is a reasonable goal, that I certainly acknowledge and respect. But it strikes me as a concern about the redistributive nature of the system rather than the riskiness of the investments individuals would be forced to bear.

And all that, of course, is premised on the assumption that Social Security really is a low-risk defined benefit plan in the long run, an issue on which I certainly have nothing new to add, as well as the more risk tradeoffs between defined benefit and defined contribution plans generally.

"Private" Lawsuits:

A reader writes:

The idea of the right to publish is only a prohibition against government interference. It does not give protection against non-government actions such as lawsuits. . . .

I often hear this argument, but it's mistaken. Lawsuits aren't "non-government actions." A lawsuit is decided by a government actor. If the plaintiff wins, he gets to enforce the award using the government's coercive power. And the law that is being applied is government-made law. That's why the Supreme Court is absolutely right to conclude that private lawsuits based on speech are subject to the First Amendment. Some such lawsuits may be permissible; libel law, for instance, still exists, though it has been cut back by the Supreme Court because of First Amendment concerns. But they are permissible only because the speech on which they're based falls within an exception to First Amendment protection (e.g., the "false statements of fact" exception, which allows lawsuits or even criminal punishments for deliberate lies).

This also makes sense functionally as well as formally. If lawsuits were immune from First Amendment scrutiny, then the legislature could effectively suppress a great deal of speech simply by authorizing private lawsuits. Want to suppress racist speech, anti-government speech, anti-war speech, etc.? Pass a law authorizing anyone who's offended by speech to sue.

Ah, some might ask, but what if a property owner sues protesters for trespassing on his property? Wouldn't the reasoning above make that lawsuit "state action," and subject to the Constitution?

Sure. The trespassing lawsuit is definitely state action (the legal idiom) or government action (the more precise term). But trespassing law doesn't focus on speech because of its content; in fact it doesn't focus on speech at all. The property owner might be suing the protesters because of their speech, but the law is indifferent to their speech or even to whether they were speaking. And this sort of content-neutral, speech-neutral law is constitutional under First Amendment law, even if it happens to be applied at times to speech. But legal rules that apply to speech because of what it says (libel law, intentional infliction of emotional distress law, the disclosure of private facts tort, and so on) are subject to serious First Amendment scrutiny, and often can't constitutionally be applied to speech, because of the First Amendment.

So, as the Supreme Court held in New York Times v. Sullivan (1964), "The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised." If a legal rule makes people legally liable for their speech, the First Amendment is implicated, whether or not the party that starts the litigation is the government.

Jury Recommends Death For Scott Peterson: If you read the VC, you probably don't care about the Scott Peterson trial. It doesn't raise any interesting legal issues, and worse, gets the uberannoying Nancy Grace on TV all the time. Still, it's possibly worth noting that while some are suggesting that we may be heading towards an end of capital punishment in the United States, no one gave the memo to the jury in the Scott Peterson case. Of course, the judge can still reject the jury's recommendation and sentence Peterson to life. And even if the judge agrees with the jury, most death penalty verdicts are overturned by appellate judges anyway. Still, worth noting.

Related Posts (on one page):

  1. All the Power of the State:
  2. Peterson Jurors Speak:
  3. Jury Recommends Death For Scott Peterson:
Ninth Circuit Correction Day: The Supreme Court gave some relief to police officers in the Ninth Circuit today in two criminal law cases: Devenpeck v. Alford and Brosseau v. Haugen. Devenpeck was reversed 8-0, with the Chief not participating. Brosseau was reversed 8-1, with Justice Stevens dissenting.

  Brosseau is a per curiam summary reversal of a Ninth Circuit opinion by Judge William Fletcher joined by Judge Stephen Reinhardt. Fletcher and Reinhardt had held that a police officer was not entitled to qualified immunity for shooting an apparently disturbed, violent felon who repeatedly refused to surrender to the police and was attempting to escape by starting a high speed chase through a suburban residential neighborhood. The suspect was injured by the shot, but continued to drive away from the police. After he was caught, the suspect brought a civil rights action against the police for violating his constitutional rights. The trial judge had held that the officer was entitled to qualified immunity, but a divided panel of the Ninth Circuit reversed. Judge Gould dissented.

  Today the Supreme Court reversed the Ninth Circuit, with all but Justice Stevens on board for the reversal. The Court did not decide whether in fact the officer's conduct violated the suspect's constitutional rights. Instead, the Court held that even assuming it did, the violation was not so clear that it should strip the officer of her qualified immunity protection. According to the Court, the law separating excessive force from allowable force in this type of context is so fact-specific, and the cases so sparse, that the officer's conduct did not violate "clearly established law" as is required to strip an officer of qualified immunity.

  In Devenpeck, the Court rejected a Ninth Circuit doctrine that required judicial review of probable cause for an arrest to consider only evidence known to the officer for offenses "closely related" to the offense that the officer named when he made the arrest. If an officer had evidence that the target had violated Crime A and unrelated Crime B, but when he made the arrest informed the suspect that he was being arrested for Crime A, the legality of the arrest could not be judged by considering the evidence that the officer had for Crime B. In a unanimous opinion by Justice Scalia, the Court did away with this doctrine on the ground that it was based too much on the subjective intent of the officer and had perverse consequences. While designed to deter sham arrests, the Ninth Circuit rule was inconsistent with the Supreme Court's approach to probable cause and merely encouraged officers not to name the reason for the arrest.
'Tis the Season for Establishment Clause Litigation -- and Humor:

A lawyer friend of mine, who's a pretty fair-minded guy and whose judgment I trust on these things, writes:

Judge Carter in the C.D. Cal. (Santa Ana) has staged a wonderful constitutional joke.

Outside his courtroom he has a Christmas tree and a menorah next to a table with a coffee set-up. The menorah and Christmas tree are very close. He also has strung some Christmas lights along the floor to set a little path into the courtroom. On the opposite side of the path are two reindeer, one of which is wearing sunglasses. The distance from the Christmas tree to the reindeer appears to have been carefully measured, perhaps to test the outer limits of the reindeer-proximity rule. There also is a Frosty the Snowman near the display, the tree, reindeer and snowman forming a roughly equilateral triangle. Overseeing it all is a hovering flying pig, perhaps a comment on the foolishness of most Establishment Clause jurisprudence.

Clearly a great deal of thought went into this. I am mightily impressed.

People Unclear on the Concept:

The Austin American-Statesman writes:

John Corvino was visiting Austin three months ago when he met a man at a Congress Avenue coffee shop and decided to take a walk with him on the nearby Capitol grounds.

They spent several minutes chatting and occasionally kissing. Then, according to a written complaint, they were interrupted by a state trooper who told them twice that "homosexual conduct is against the law in Texas."

Texas Department of Public Safety officials said Friday that they have placed the trooper, Michael Carlson, on probation for six months and issued a written reprimand. Carlson also has been ordered to undergo more training on Texas laws. . . .

Texas law does not prohibit gay people from kissing. . . .

I'm not sure that public kissing, regardless of the parties' sex (and whether or not on the first date), has ever been illegal in Texas. It would take a strikingly misinfored police officer to assume that it is illegal today -- either that, or an officer who thinks his job is to enforce his personal preference, rather than the law.

How Quickly They Forget:

David Kravitz writes (go to his post for the links):

Predictably, Bernard Kerik's abrupt withdrawal as Bush's nominee for Director of Homeland Security, ostensibly for nanny-type problems (but see the New York Daily News in particular for Kerik's other "difficulties"), has led our friends in the mainstream media to recall that some Clinton nominees had to withdraw for similar reasons.

Amazingly, though, some of the reporting is completely wrong. I refer in particular to several stories (and there are dozens more out there - Google it yourself) stating that Lani Guinier withdrew as Clinton's nominee for head of the Justice Department's Civil Rights Division because she had failed to pay taxes for a domestic worker.

As anyone with even a few brain cells left should recall, however, Lani Guinier withdrew because some of her writings were wildly misrepresented, she was smeared as a "quota queen," and Clinton backed down in the face of right-wing pressure. (It was not Bubba's finest moment.) Maybe I'm wrong, but I don't remember anything about Guinier having "domestic worker" problems. If you can find a source from the relevant time period (1993) referring to any such problems, I'd like to know about it.

This is really scary. The Guinier business was extremely well-publicized at the time, and it was not that long ago. If reporters and editors working for CBS and MSNBC (and many others) can't even get the basic facts about it right, can we really expect them to report intelligently and accurately about social security, income tax reform, judicial nominations, and a host of other important but complex issues coming down the pike?

I express no views on whether Guinier's work was in fact misrepresented; but the rest of the item seems quite right to me. Unless there's something about the Guinier story that I had also missed — and if there is, please let me know so that I can correct the post — this seems like a nontrivial error by the media. They're not just wrong here, but they're wrong in a way that falsely accuses someone of violating the law. That doesn't speak well of their trustworthiness in other fields.

UPDATE: Just to make it clear, Kravitz and I of course know that Zoe Baird, Kimba Wood, and Stephen Breyer were torpedoed by similar objections, as eventually was Linda Chavez. (This happened to Breyer the first time he was talked about for a vacancy, which Clinton filled with Ruth Bader Ginsburg.) The first three were Kravitz's "some Clinton nominees had to withdraw for similar reasons." Our point is that the media seems to be confusing Guinier with them.

FURTHER UPDATE: I did a bit more looking through news stories that came out in 1993, when Clinton nominated Guinier and then withdrew support for her. (I had done some when first posting this, but I've done more since.) None mention any "nanny problems" for her, even though some mention the Baird/Wood/Breyer nanny problems and then describe Guinier as having lost support because of statements in her published works. Again, I may be mistaken -- if you have contrary evidence, please let me know. But it looks like this is indeed an error by a bunch of media outlets (Washington Post, AP, Knight Ridder,,, Houston Chronicle, Washington Times, and others).

Child Custody Speech Restrictions:

My article draft (quite rough) is here.


My colleague Don Boudreaux, Chair of the GMU Economics Department and sometimes Professor in the GMU School of Law reminds us of the logic of marginal deterrence:

13 December 2004

The Editor, New York Post

Dear Editor:

Readers opposed to milder drug sentences (Letters, Dec. 13) forget that an important goal of the structure of criminal penalties is to deter those who commit lesser crimes from committing more serious crimes.

In New York, the minimum sentence for second-degree murder is 15 years. For first-degree murder it's 20 years. If the minimum mandatory sentence for the sale of more than two ounce of heroin or cocaine remains at 15 years, the additional punishment suffered by drug dealers who commit 2nd-degree murder during drug sales gone bad is now as low as nothing. For first-degree murder the additional penalty is as low as five years.

Punishing drug sellers as harshly as we punish murderers turns drug sellers into murderers.

Sincerely, Donald J. Boudreaux

To elaborate--if you get the same penalty for simply selling drugs to Mr. X (who can then rat you out) versus by selling drugs to Mr. X and then murdering him so that he can't rat you out, you will be providing strong incentives to murder the rat if you are afraid that he will turn you in.

A reader recently queried whether someday we might see an economist on the Supreme Court. Sounds like we could use some economists in Congress first. Now that Dick Armey and Phil Gramm have both retired, are there any trained economists left in Congress?


I have been reminded, that the premise of the marginal deterrence criticism is that the sentences are served concurrently rather than consecutively. I am told by readers more expert in the particularities of New York law that New York would generally impose consecutive rather than concurrent sentencing in the example of a murder committed in the course of a drug deal.

Scalia for Chief Justice?

Rick Hasen and David Kravitz suggest reasons why some Democrats might support Scalia for Chief Justice.

Monkey Off My Back:

Just finished a draft of my Child Custody Speech Restrictions paper -- it's been very interesting, but time-consuming, which is why I haven't been blogging much recently. Hope to post some things that have been backed up in my queue, though their news hooks may have gotten a little stale.

Sunday, December 12, 2004

The Year In Ideas:

Law prof Ian Ayres of Balkinization writes:

Thank you Instapundit. The New York Times writer, Christopher Shea, saw my earlier post on Criminalizing Reckless Sex, when Glen[n] Reynolds linked to it. And the Times Sunday Magazine included the idea in today's "The Year in Ideas" issue.

Instapundit — where the New York Times looks for big ideas.

UPDATE: Or not. Christopher Shea writes in to say that he read about Criminalizing Reckless Sex from Balkinization itself. Plus, he's a freelancer, not an NYT writer. So make that: "Balkinization -- where freelancers who are writing for the New York Times look for big ideas." Sorry, Glenn.

Big Day at the Court Tomorrow?:

Criminal law geeks around the country are wondering whether tomorrow morning the U.S. Supreme Court will release its opinion in United States v. Booker and United States v. Fanfan, the cases that consider how last year's blockbuster opinion in Blakely v. Washington applies to the U.S. Sentencing Guidelines. I haven't blogged on Blakely issues because I have an unusual perspective on the case; I was clerking for Justice Kennedy when Blakely was decided. When Booker/Fanfan is handed down, however, I plan to give it a read and post my thoughts on the new decision together with some broader thoughts about the Apprendi/Blakely movement, where it came from, and where it might be going. I have no idea whether that day will be tomorrow or later, but if it's tomorrow I'll try to post something by early afternoon.

Rather Investigative Report may not be Released in Full.-- I was one who agreed with CBS that the report on the forged memos should have been delayed until after the election (a position for which I took a little criticism). Further delays may still be justified if the investigators are responding to criticisms of their first draft--checking issues that were under-investigated in the first place.

But is reporting that the current debate at CBS is over whether to release the full report (tip to Glenn). The Report probably does involve the employment status of some of CBS's staff members, so there might be some reason to suppress a few sentences giving context on individual employment backgrounds not directly involved in the actions being investigated. I could also imagine that some recommendations for future action might be only hinted at in the report and then delivered in person to the top honchos. Other than that, I don't see what should be withheld. And I still think that CBS should release a draft of the report for comment before finalizing it.

Unless the full report is shown to only a half-dozen people, I don't see how they will be able to keep it private. You would think that a news organization would want more transparency than most other organizations in the US. More tellingly, you would think that CBS would understand that times have changed; it is very hard to keep the lid on something like a damaging report--or whether memos in a news story are forged. If is correct, it suggests that some at CBS still don't get it.
Will the Ents of Europe Awaken?--

There is a fascinating column by Victor Hanson Davis on the similarities between the Ents of Tolkien's books and modern Europe (tip to Betsy).

One of the many wondrous peoples that poured forth from the rich imagination of the late J. R. R. Tolkien were the Ents. These tree-like creatures, agonizingly slow and covered with mossy bark, nursed themselves on tales of past glory while their numbers dwindled in their isolation. Unable to reproduce themselves or to fathom the evil outside their peaceful forest — and careful to keep to themselves and avoid reacting to provocation of the tree-cutters and forest burners — they assumed they would be given a pass from the upheavals of Middle Earth.

But with the sudden arrival of two volatile hobbits, the nearby evils of timber-cutting, industrial devilry, and mass murder became too much for the Ents to stomach. They finally "wake up" (literally). Then they go on the offensive — and are amazed at the power they still wield in destroying Saruman's empire. . . .

More specifically, does the Ents analogy work for present-day Europe? Before you laugh at the silly comparison, remember that the Western military tradition is European. Today the continent is unarmed and weak, but deep within its collective mind and spirit still reside the ability to field technologically sophisticated and highly disciplined forces--if it were ever to really feel threatened. One murder began to arouse the Dutch; what would 3,000 dead and a toppled Eiffel Tower do to the French? Or how would the Italians take to a plane stuck into the dome of St. Peter? We are nursed now on the spectacle of Iranian mullahs, with their bought weapons and foreign-produced oil wealth, humiliating a convoy of European delegates begging and cajoling them not to make bombs--or at least to point what bombs they make at Israel and not at Berlin or Paris. But it was not always the case, and may not always be.

The Netherlands was a litmus test for Europe. Unlike Spain or Greece, which had historical grievances against Islam, the Dutch were the avatars of the new liberal Europe, without historical baggage. They were eager to unshackle Europe from the Church, from its class and gender constraints, and from any whiff of its racist or colonialist past. True, for a variety of reasons, Amsterdam may be a case study of how wrong Rousseau was about natural man, but for a Muslim immigrant the country was about as hospitable a foreign host as one can imagine. Thus, it was far safer for radical Islamic fascists to damn the West openly from a mosque in Rotterdam than for a moderate Christian to quietly worship in a church in Saudi Arabia, Iran, or Algeria. And yet we learn not just that the Netherlands has fostered a radical sect of Muslims who will kill and bomb, but, far more importantly, that they will do so after years of residency among, and indeed in utter contempt of, their Western hosts. . . .

So will the old Ents awaken, or will they slumber on, muttering nonsense to themselves, lost in past grandeur and utterly clueless about the dangers on their borders?