Saturday, August 20, 2005

London Times reports that British intelligence foiled a planned sarin attack on Parliament.--

According to the Times of London, British intelligence cracked Al Qaeda codes and believes that it prevented a chemical attack (involving sarin) on Parliament (tip to Hewitt):

SCOTLAND YARD believes it has thwarted an Al-Qaeda gas attack aimed at ministers and MPs in parliament. The plot, hatched last year, is understood to have been discovered in coded e-mails on computers seized from terror suspects in Britain and Pakistan. Police and MI5 then identified an Al-Qaeda cell that had carried out extensive research and video-recorded reconnaissance missions in preparation for the attack.

The encrypted e-mails are said to have been decoded with the help of an Al-Qaeda “supergrass”. By revealing the terrorists’ code he was also able to help MI5 and GCHQ, the government’s eavesdropping centre at Cheltenham, to crack several more plots.

The discovery of the suspected Commons nerve gas plot was behind the decision to increase security around parliament this summer.

A senior officer said that the scheme had led to the intervention of Eliza Manningham-Buller, head of MI5, to assess parliament’s security.

The operation to deter the sarin gas attack is referred to in an internal police document obtained by The Sunday Times.

It is a minute of a meeting of senior police officers held last month at Specialist Operations 17 (SO17), the unit responsible for protecting parliament, and reveals that the team were waiting to be briefed on the plot.

This weekend a senior officer disclosed that the thwarted plot mentioned in the document involved a gas or chemical “dirty bomb” attack against parliament. “The House of Commons was one of their targets as well as the Tube,” he said.

“They were planning to use chemicals, a dirty bomb and sarin gas. They looked at all sorts of ways of delivering it.”

Related Posts (on one page):

  1. Sarin Gas, Treason, and Plot::
  2. London Times reports that British intelligence foiled a planned sarin attack on Parliament.--
Did Lawyers Hinder Bin Laden Capture?--

It is quite depressing to read descriptions of how investigations or captures of Osama Bin Laden or other Al Qaeda were hindered by lawyers, rules developed by lawyers, or fears of lawyers. For example, there were the FBI lawyers who wouldn't allow seeking a search warrant to look into Zacarias Moussaoui's laptop computer in Minnesota just before 9/11/2001.

The latest set of lawyers' restrictions to be alleged grew out of a plan to capture Bin Laden. So great was the lawyers' concern for Bin Laden's comfort that a special chair was built to hold him and they were concerned whether the tape used to hold him would hurt his beard. This latest nonsense was revealed by the man who for 10 years headed the CIA's desk tracking Bin Laden, Michael Scheuer, interviewed by Nora O'Donnell on Hardball.

O‘DONNELL: But many people have made the impression that something in the Bush administration was done wrong. But there‘s evidence that the Clinton administration knew full well that bin Laden had the wherewithal and was planning to attack the United States. Who is to blame and did the president, Clinton, get this information?

SCHEUER: Certainly the president got the information. And most certainly his closest adviser, Sandy Berger and Mr. Clarke—Richard Clarke, had the information from 1996 forward that bin Laden intended to attack the United States. There‘s no question of that. And in terms of which administration had more chances, Mr. Clinton‘s administration had far more chances to kill Osama bin Laden than Mr. Bush has until this day.

O‘DONNELL: . . . From what we know now and what you know, how many missed opportunities were there to prevent the 9/11 attacks?

SCHEUER: Well, we had—the question of whether or not we could have prevented the attacks is one you could debate forever. But we had at least eight to 10 chances to capture or kill Osama bin Laden in 1998 and 1999. And the government on all occasions decided that the information was not good enough to act. . . .

O‘DONNELL: Let me ask you what you know about what we‘ve read recently about a secret military operation known as Able Danger. There are people involved in that that say that the United States knew about Mohammed Atta a year before the 9/11 attacks. Is that true? And was there a massive failure by our government?

SCHEUER: I don‘t know firsthand information about Able Danger, ma‘am, but from what I‘ve read in the media, that the lawyers prevented them from passing the information to the FBI, that certainly rings true. The U.S. intelligence community is palsied by lawyers.

When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden‘s safety and his comfort than they were with the officers charged with capturing him. We had to build an ergonomically designed chair to put him in, special comfort in terms of how he was shackled into the chair. They even worried about what kind of tape to gag him with so it wouldn‘t irritate his beard. The lawyers are the bane of the intelligence community. . . .

Scheuer goes on to say that, in his opinion, the Iraq War has been a disaster in the effort to stop terror.

SCHEUER: . . . The war in Iraq has broken the back of our counterterrorism effort. I‘m not an expert on the threat posed by Saddam Hussein, but the invasion of Iraq has made sure this war will last decades ahead and it has transferred bin Laden and al Qaeda from being man and an organization into being a philosophy and a movement. We‘ve really made sure that the war against us is going to be a long and very bloody one. Iraq was an absolutely disastrous decision.

As Tom Elia notes (tip to Althouse), this concern for Bin Laden's comfort sounds like a Monty Python skit:

"NOBODY expects the Spanish Inquisition ...
Fetch ... THE COMFY CHAIR ...
Put [him] in the Comfy Chair! ...
Now — you will stay in the Comfy Chair until lunch time, with only a cup of coffee at eleven....
Confess! Confess! Confess! Confess!"

Utility Maximizing Tea Sweetening:

Brad DeLong assesses HonestTea's corporate policy of maximizing the "flavor-calorie" tradeoff in bottled tea and how said policy is explained to consumers.

Keller Bashes "Bad News":

New York Times executive editor Bill Keller is none too happy with Richard Posner's recent review of several books on the media, calling the essay "tendentious and cynical." The catch? The Posner review appeared in Keller's own paper — as does Keller's letter to the editor.

Was Posner's review so bad? Readers can judge for themselves. Here is the review essay, titled "Bad News," and here is Keller's letter, along with reponses from Bill Moyers and Eric Alterman, among others.

UPDATE: Powerline's Big Trunk comments here. Of note, Keller complains that Posner discounts the ability of "conscientious reporters and editors" to set aside their personal beliefs to produce fair and honest journalism. Yet it was not so long ago that Keller himself observed that "even sophisticated readers of The New York Times sometimes find it hard to distinguish between news coverage and commentary in our pages."

UPDATE: Dan Drezner has more thoughts here. [Link should be working now.]

A Growing Conspiracy:

I am delighted to announce the latest addition to the Conspiracy, my new daughter, born Thursday evening. Mom and baby are both doing great.

I expect to soon learn the meaning of the term "napocracy" myself.

In the meantime, I am getting her while she is still impressionable with this and this.


We're planning to be going with Pajamas Media for our advertising when that starts up, likely around October 1.

Until then, though, we're trying out Henry Copeland's BlogAds, about which I've heard many great things. So if you've wanted to advertise on the Conspiracy (185,000 page views per week, according to SiteMeter), the next few weeks are your big chance. We'll also be part of Jeralyn Merritt's lawyer blogads mininetwork.

In the meantime, many thanks to, our new temporary sponsor!

Bubble Update:

Just read that 61% of all new California mortgages this year are interest only, no money down. This is especially important because California (like a few other states, but, unlike, say, D.C. area jurisdictions where about 50% of the new mortgages are interest only) has a law requiring that all mortgages be "non-recourse," i.e., if a mortgagee defaults on his loan, the bank cannot attach any of the mortgagee's other assets, but can only foreclose on the house. If prices drop significantly in the next couple of years, as they likely will (given that only 17% of Californians can now afford the median house), thousands of people are going to walk away from their loans and let the bank foreclose, with no bankruptcy consequences. Sure, it will ruin their credit record, but how much is a good credit record worth? Probably not $120,000 (the negative equity on a $600K loan--median single family home price in California--if prices decline a modest* 20%). Anyway, many of the loans are adjustable with "teaser" rates used to qualify the buyers, who understand that in two years they will have to refinance or sell, because they won't be able to afford the new payments. They are counting on interest rates being lower, or on being able to "flip" the house for more money, and using the proceeds to get "back in the game." And they are likely to lose their homes, and the mortgagers are likely to lose a good chunk of the money they are lending. One thing that stumps me: Fannie Mae (which has been cooking its books for years!) buys the smaller loans (after all, what good would Fannie Mae be if it couldn't help poorer people get mortgages for homes they can't afford?), but who is dumb enough to purchase the larger non-recourse loans at the end of a bubble market? I know that Countrywide Financial and other lenders have been keeping more loans on their own books, assumedly because they are running into resistance from the market. Still, someone is buying many of these loans, often packaged into derivatives. And someone is going to lose a lot of money.

*Yes, modest, given that this would simply take the market back to 2003 prices.

UPDATE: A reader corrects: "I believe that you make a factual error in your Volokh Conspiracy post on the potential housing bubble. California is a "single action" state. That is, a lender secured by a residence has only two options: foreclose or sue the borrowers for the full amount of the loan. This is unlike (virtually?) every other state, where a lender can foreclose and then sue the borrowers for the deficiency, if any. This is in most instances a distinction without a difference, as few borrowers would have sufficient assets (especially in a default) to provide a better repayment result for the lender, but it is a difference."

FURTHER UPDATE: Another reader corrects the correction: I believe you still have it wrong as to California. California Code of Civil Procedure Section 726 (a) provides a single form of action that must be followed to recover a debt owing that is secured by a mortgage or deed of trust on real property. Section 726 requires foreclosure on the property and provides a means to recover the deficiency in the event that what is recovered is not sufficient to pay off the debt. But, Section 726 specifically mentions the exception to deficiency judgments provided by Code of Civil Procedure 580b. Section 580b does not permit a deficiency judgment where the debt is secured by a purchase-money mortgage or deed of trust to residential property. Thus, I don't believe a creditor has an option to "sue the borrowers for the full amount of the loan." A creditor holding a purchase money mortgage or deed of trust on residential property must foreclose on the property, and cannot recover any deficiency.

Any California real estate gurus want to set the record straight?

Roberts Memo Excerpts: The New York Times has a few excerpts from memos that Roberts wrote at the White House Counsel's office in the 1980s. Interesting stuff.

Friday, August 19, 2005

Comments and Civility: I've noticed in the last week that the VC's normally courteous and civil comment section has become a bit nasty and occasionally profane. I suspect that the turning point may have been the comment section for this post on the murder of Steven Vincent, but I'm not sure.

  Whatever the cause, please remember that civil and respectful comments are the rule here at the VC. It may be more fun to be nasty, but as Eugene once noted, it's a really big blogosphere and you can find some place else for that. In any event, I reserve the right to be arbitrary and capricious in choosing which comments to delete because they cross the line. If you want to make sure that your comments stick around, keep them clean and civil.

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  1. Comments and Civility:
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Rancher Whose Family Ranch Was Seized And Turned Over to Illegal Immigrants Whom He Allegedly Beat:

I got a couple of e-mails from readers who were appalled by this situation:

Just a few months ago, this ranch was known as Camp Thunderbird, the headquarters of a paramilitary group that promised to use force to keep illegal immigrants from sneaking across the border with Mexico.

Now, in a turnabout, the 70-acre property about two miles from the border is being given to two immigrants whom the group caught trying to enter the United States illegally.

The land transfer is being made to satisfy judgments in a lawsuit in which the immigrants had said that Casey Nethercott, the owner of the ranch and a former leader of the vigilante group Ranch Rescue, had harmed them. . . .

The two immigrants . . .accused Mr. Nethercott of threatening them and of hitting Mr. Mancía with a pistol, charges that Mr. Nethercott denied. The immigrants also said the group gave them cookies, water and a blanket and let them go after an hour or so. . . .

A few observations:

1. According to the story, Nethercott didn't defend the lawsuit against him, "so the judge issued [a] default judgment[] of $850,000" against him; the property was seized to satisfy the judgment. Whatever the merits of a lawsuit, you can't just refuse to appear in court. If you do, you'll essentially be ruled to have forfeited — the other side will get a default judgment, and unless you can get it set aside by showing some good reason for the default, it's as if you'd lost on the merits. That's true whatever you're accused of, and it makes it harder for me to sympathize with Nethercott.

2. Nethercott was not convicted of attacking the illegal aliens; the jury deadlocked on that. But a failure to convict doesn't dispose of a civil claim: Because conviction in criminal cases requires proof beyond a reasonable doubt, and liability in civil cases generally requires only proof by a preponderance of the evidence (a much lower standard), it may well be perfectly proper for a criminal jury to acquit (or deadlock) and for a civil claim to nonetheless prevail. (Recall that this is what happened in O.J. Simpson's killing of Ron Goldman.)

3. One could argue that illegal aliens shouldn't get a damages award when the circumstances flowed partly from their own crime — illegal entry into the country. But while I'm not an expert on this corner of tort law, my sense is that this isn't the law. Perhaps tort lawyers can clarify this for me.

Some states bar criminal trespassers from recovering damages flowing from the property owner's negligence, and possibly even the property owner's deliberate acts taken in self-defense. But I'm not sure this would apply to people whose crime is illegal presence in the country, rather than illegal entry into someone's house. And in any event, I doubt that this immunity applies to a defendant's deliberate acts not taken in self-defense, for instance if I catch a trespasser and then proceed to beat him with no self-defense justification.

4. Perhaps Nethercott really didn't beat the illegal aliens, or perhaps he was acting in self-defense — but if he refuses to come to court to give his side of the case, we can't really figure that out.

5. I'm not sure whether it's good that the illegal aliens might get "visas that are available to immigrants who are the victims of certain crimes and who cooperate with the authorities"; but I don't know what the relevant rules are, and what their chances of getting the visas are.

I can see why one might want to have such rules in some situations, in order to encourage illegal aliens to come forward to complain about crimes. I can also see why one might not want to have such rules, in order to keep illegal aliens from profiting — by getting visas, regardless of whether they also get damages awards — from their illegal entry into the U.S. I really can't speak to this without knowing more about what the immigration laws here are.

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Gaming SSRN Downloads: There has been a lot of debate recently among lawprofs about whether SSRN downloads are a useful gauge of scholarly influence or quality. I'm pretty skeptical about using SSRN that way, and the following e-mail is an interesting illustration of the problem. A young lawyer who just sent out an article for publication to law reviews also sent out the following e-mail to a list of friends asking for their help in getting the article placed:

From: [Redacted]
Date: August 17, 2005 6:05:34 PM EDT
To: [Redacted]
Subject: Buzz!! (Shameless Self-Promotion)


I'm trying to create some buzz for a law article I've just posted on the SSRN (Social Science Research Network). Could you please please download the article? The more hits there are, the more likely the piece is to get picked up by a good journal. Of course I'd love it if you also read the article - but that's up to you.

Three easy steps:

click on this link:[Redacted]
click "Go to Document Delivery"
click "SSRN"

You should do this because (1) it would mean a lot to me, and (2) there are free door prizes for the first 50 people who click that link.

  The idea, I suppose, is that law review editors might check SSRN to see how many downloads the paper has. If a paper has lots of downloads, editors will assume it is getting lots of attention and perhaps is more worth publishing. I would hope editors can see through this, but you never know. Anyway, caveat editor.

Related Posts (on one page):

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Changing Attitudes About Homosexuality:

[UPDATE: I'm afraid I misentered the data in the table when I first posted this; please see the revised information. The analysis remains correct — but the data now matches it.]

AEI has a useful compilation of poll data on attitudes about homosexuality and related topics. Here's one particular interesting item, from p. 3, reporting on what percentage of respondents to a National Opinion Research Center survey said that homosexual sexual relations are "always wrong" (as opposed to almost always wrong, only sometimes wrong, or not wrong at all):

Age 1973 2002
Total 73 55
18-29 56 48
30-44 74 48
45-59 75 55
60 and over 89 68

There are three obviously striking items here: First, 55% of Americans still think homosexual sexual relations are always wrong. Second, public attitudes have shifted considerably (by 18%) on this in the last thirty years. Third, younger people have always been less likely than older people to say that homosexual sexual relations are always wrong.

But the fourth thing may be less obvious, and yet I think just as important: If you look at the 18-29 age range in 1973 and the 45-59 range in 2002, which represent pretty much the same people (18-29-year-olds in 1973 would be 47-58 in 2002), the percentages are statistically identical, 56% and 55%. If you look at 30-59-year-olds in 1973 and 60-and-over in 2002, which should also be pretty much the same people (since only a small fraction of the 60-plus in 1973 survive in 2002), the change is from 74-75% to 68%, a significant change but a relatively small one.

So the primary reason for the 18% change does not seem to be that adults are hearing more about gay rights claims, seeing more out-of-the-closet gays at work or in social circles, and thus changing their views. There seems to be a modest such effect among those who were over 30 in 1973, but only a modest one.

Rather, the main change is in the views of the new generations (the ones who are now 18-44). And this change started with those who came of age in the 1960s and early 1970s (note that the "always wrong" figure has declined only from 56% to 48% from 1973 to 2002), and therefore seems likely to have been caused by the Sexual Revolution, which predated 1973, more than by the gay rights movement.

UPDATE: Many thanks to reader Marco Parillo, who gave the quote that this reminded me of, but the details and the author of which I couldn't remember: It's known as Planck's Principle (after it's author, physicist Max Planck), and it is that

A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die and a new generation grows up that is familiar with it.
Naturally, the analogy is not intended to be perfect, and those who prefer to see tolerance of homosexuality as being more akin to new error than to new truth may feel free to replace "truth" with "error." The important point here isn't about truth as such, but rather about how public opinion changes.

[Puzzleblogger Kevan Choset, August 19, 2005 at 12:16pm] Trackbacks
Awards Categories:
  1. Who has won Oscars in the most categories?

  2. Who is the only person to win Emmys for acting, writing, and directing? (Hint: It was all for the same show.)

  3. Who has won Tonys in the most categories?

  4. Who is the only man to win a Tony for playing a woman? Who is the only woman to win a Tony for playing a man?

  5. Who has won Grammys in the most categories?

  6. Who are the only two people to win Nobel Prizes in two categories?

  7. Who, in 2005, was nominated for an Oscar, a Tony, and an Emmy?

UPDATE: Question 7 added.


Thursday, August 18, 2005

Internet Accounts and Probable Cause to Search a Home: In the last few years, a number of courts have considered when and how information relating to an Internet account can create probable cause to search a home for evidence. In these cases, the police know that an Internet account was used in a particular way potentially related to criminal activity. The police then use that knowledge to get a warrant authorizing them to search a physical place for evidence of the crime.

  The issue has come up most recently in a series of federal cases involving membership in child pornography-related groups. The basic fact pattern is that the government shuts down a listserv or business relating to child pornography, and manages to obtain a subscriber list of e-mail addresses. The feds then go to the ISP that hosts a particular e-mail address and get account records from the ISP, and particularly who signed up for the account and where they live. The feds then use this information to get probable cause for a warrant to search the suspect's home. The feds execute the search and find child pornography. The defendant then moves to suppress the evidence on the ground that the warrant did not provide probable cause to believe ex ante that the evidence would be located there.

  So far, at least, courts have struggled with these cases. The Ninth Circuit recently voted to rehear en banc one such case, United States v. Gourde, and just today a Second Circuit panel in United States v. Coreas expressed its strong disagreement with a panel from two weeks ago on the same question. (Hat tip: AL&P.) Given the legal uncertainty on the question, I thought it might be interesting to explore why it is uncertain, as well as what the key analytical steps should be to resolve these questions.

  The uncertainty is relatively easy to explain. Legal disputes about probable cause are about estimating the chances that fact B exists given known fact A. We make these estimates based on our human experience, common sense, and shared understandings. For example, imagine that a 5'3" man with a mask robs a bank, and then the next day a 5'3" man named Joe Smith brags to his coworkers in an office across town that he robbed a bank the day before, and produces five fresh $100 bills to prove it. Does this scenario create probable cause to search Smith's home for evidence? The question boils down to a series of inferences based on your own experience. How unusual is it for a man to be 5'3" or to have five fresh $100 bills? How likely is it that someone would brag about a crime but actually be uninvolved in it? How likely is it that a bank robber would store evidence at his home?.

  For the most part, judges can address these questions because they have an intuitive sense of the answers. Most people recognize the key questions to ask, and have at least a vague sense of the answers. Cases involving Internet accounts are more difficult because judges generally don't have much experience with the technology. To most judges, there is this Internet thing out there, and people do stuff on that Internet thing, and they don't have much of a sense of how to go from fact A to inference B. (If there are any judges reading this, I should say that you are of course an exception; it's the other judges that I have in mind.)

  So what are the key questions that a court should ask when determining whether use of an account to join a child pornography-related listserv creates probable cause search a home for evidence? Here is a somewhat oversimplifed list:

  1) How likely is it that the defendant is the one who controlled the account when it was used to join the group? People can sign up for accounts using fake names and/or fake addresses. They also can use hacked accounts belonging to other people. As a result, judges can't simply assume that the defendant was the person who controlled the account.

  2) How likely is it that the defendant signed up with the service with the intent to get illegal images? The law generally prohibits knowing receipt and possession; several courts have interpreted possession to require intentional reaching out to control images. We can quibble with the details of the substantive law, especially in the case of the precise meaning of "possession" of a digital file, but as a rule this means that a person who accidentally receives images of child pornography may not be guilty of an offense.

  3) How likely is it that the defendant actually did receive images? The list or group may not have distributed contraband images during the period that the suspect was a mamber.

  4) How likely is it that the defendant initially received the images in his home? In the past, it has been quite likely that people who are using the net to obtain contraband child pornography images are doing so from their home. This may be changing, though. For example, a person might drive across town, find an unsecured wireless network, and use that network to download the images straight on to their laptop.

  5) And finally, how likely is it that the images are presently in the home? There is lots of caselaw on this question, actually. Several courts of appeals have noted that collectors of child pornography generally keep the images they obtain instead of deleting them. At the same time, there is always at least a possibility that an image present in the home one day may not be present in the home another day. Finally, it's worth noting that (depending on the specific language contained in the warrant) it may not be necessary to find the actual images. For example, if a suspect downloaded images one day and deleted them a month later, evidence showing that the defendant knowingly received the images on the first day could be stored on the defendant's computer even if the images themselves are not present.

  Of course, how these questions play out depends on the facts of specific cases. Probable cause is necessarily a fact-specific inquiry, and it depends on an assessment of the likelihood in each individual warrant affidavit. At the very least, though, I think these are the key questions that the courts should be asking.
Wars, Declared and Undeclared:

I keep hearing arguments (most recently in the treason thread) that various war-time powers — for instance, the power to punish people for treasonously aiding our enemies — are applicable only if the war is declared.

No no no. Did I say, "no"? Just in case, "no." That is not and has not been U.S. law. I canvassed the caselaw on this here, but the short answer is that U.S. law has not treated our undeclared wars (e.g., the Civil War, the Korean War, the Vietnam War) differently from declared wars (e.g., World War I or World War II).

I realize that some people might argue that the law should distinguish declared wars from undeclared wars. But they should acknowledge that this is a change from longstanding American legal understanding, and they should also discuss how this would apply in situations where wars have generally not been declared (e.g., civil wars, wars in which we're attacked and conduct takes place before we have time to declare war, and so on).

But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices. I blogged more about this here; but note in particular that Joe Biden, the drafter of the authorization of the use of force following Sept. 11, specifically said that he viewed it as a declaration of war. And the Iraq war is authorized by a very similar authorization of the use of force.

So the war has been declared; and even if it hadn't been declared, it would have still been a war for legal purposes.

Suicide Pacts:

A reader, responding to my post about treason and speech, writes:

If you think the Founders would approve of any test other than 1 or 2, you are nuts. It's a cliche, but its true: The Constitution is not a suicide pact.

I've long been troubled by the one-liner that "The Constitution is not a suicide pact"; let me explain why.

1. If we interpret the "suicide" in "suicide pact" in a strong sense -- the Constitution doesn't require government forbearance where such forbearance would mean the nation's death as a free and independent country -- then the one-liner is probably right. Yes, if some action was genuinely necessary to preserve the nation's very existence as an independent country, I doubt that the Framers contemplated that the government should be blocked from engaging in this action, even if it meant restricting speech, engaging in broad and otherwise forbidden searches and seizures, and the like.

Nor do I think that we should insist that the government remain powerless to do what needs to be done to preserve the country's existence. Let justice be done, I say, but not the point that the heavens fall. (Or perhaps if we let justice be done though the heavens fall, the result isn't really justice.)

2. But the trouble is that the one-liner is generally used about behavior that doesn't really significantly threaten the nation's death as a free and independent country. Axis Sally's speech didn't cause our nation's death or loss of independence; nor would it have seemed likely to do so; nor would the threat of treason prosecutions for such propaganda during World War II have materially increased our chances of national survival.

Yes, Axis-Sally-like speech might have hurt our war effort in some measure, and led to some decline in morale and some extra deaths of our soldiers. It may well have deserved punishment as a result (I think it did). Maybe even all speech that is intended to help the enemy in time of war deserves punishment, as my correspondent writes (though I don't think that such a broad speech restriction would be constitutional). But calling the toleration of such speech a matter of "national suicide" is hyperbole, not a reflection of reality. And I've found that the same is true in most cases where the "not a suicide pact" one-liner is deployed.

What's more, if the claim really is that the Constitution doesn't require government forebearance where such forbearance would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others, I don't think this claim is sound. It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty. They thought that on balance liberty would make the nation more secure, against foreign enemies as well as domestic, but they must surely have realized that many of the amendments (the First, the Second, the Fourth, and others) would sometimes lead to pretty serious harms, including the death of soldiers.

To give just one example, a "peace with honor" Presidential candidacy during a wartime election may well embolden the enemy, prolong the war, and cost American lives. But the Constitution doesn't provide for suspending elections during wartime, and our traditions have in fact allowed such elections, even when they might have lengthened wars.

3. So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers. That's a hard and important question (see pp. 97-100 of this article for my one brief attempt to grapple with it in one particular context). But assertions that "The Constitution is not a suicide pact," which usually rest on hyperbole about what constitutes "suicide," do not, I think, advance our thinking about this question.

For an illustration that I get similarly annoyed by some libertarian one-liners as well as conservative ones, see here (criticizing the frequent quotes of Benjamin Franklin's "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety").

The New Atlantis: The Summer 2005 issue of The New Atlantis is online. The magazine is "a journal of technology and society" published by the Ethics and Public Policy Center, and generally offers a vaguely Burkean traditionalist look at how new technologies change social practices and experiences. It's sort of a New Criterion about technology instead of literature and the arts, if you will. Anyway, you may not agree with everything in it, but it's a very good (and not very well known) publication.
Looking Ahead to the New Supreme Court Term: Lawprof Jonathan Adler has just posted a 35-page preview of some of the Supreme Court's big cases already docketed for the coming year. It's a pretty good summary of what's planned for OT2005, at least so far. Hat tip: Legal Theory Blog.
Treason and Speech:

A recent speech by the British Member of Parliament George Galloway (transcript by MEMRI; please let me know if you know of material errors in it) is truly remarkable: Galloway, apparently directing his remarks to Arabs in Arab countries, says, among other things,

Two of your beautiful daughters are in the hands of foreigners — Jerusalem and Baghdad. The foreigners are doing to your daughters as they will. The daughters are crying for help, and the Arab world is silent. And some of them are collaborating with the rape of these two beautiful Arab daughters. Why? Because they are too weak and too corrupt to do anything about it. So this is what Sykes-Picot will do to the Arabs. Are you ready to have another hundred years like the hundred years you just had? . . .

[T]he Iraqi resistance is not just defending Iraq. They are defending all the Arabs, and they are defending all the people of the world from American hegemony.

This reminded me of an old, hard, and unresolved problem of U.S. free speech law, which I've written briefly about before (in a problem in my First Amendment textbook, briefly in this article [PDF pp. 4, 13, 65-66]), and on the blog here and here. Imagine that Galloway was American and was tried in America, and that a jury concluded that Galloway's intention wasn't just to criticize the war, but actually to get Arab listeners to help our enemies in Iraq, and to get some of them to join the insurgents. (I can't speak definitively of Galloway's intention, but this strikes me as a not implausible assumption given the content and seeming target audience of his speech and of his past speeches, which would be relevant to the intent question.) Under U.S. law, this would constitute treason: Aiding the enemy with the intention of aiding the enemy. Would the First Amendment nonetheless protect such speech?

Treason is thankfully a rarely litigated crime in the U.S., but the closest cases seem to be the Axis propaganda cases. Consider Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950), which upheld the treason conviction of Mildred Gillars, a U.S. citizen who worked for the Nazi propaganda service during World War II, and who recorded the “Vision of Invasion” broadcast while working for the Nazis:

This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated between soldiers on a ship in the invasion and the home of an American soldier. The ship is sunk, the soldier is killed and he appears in a dream of his mother. The general theme is expressed in the following colloquy between the American mother and father:

“Mother: But everyone says the invasion is suicide. The simplest person knows that. Between seventy and ninety percent of the boys will be killed or crippled for the rest of their lives.

“Father: What can we do about it?

“Mother: Bah. We could have done a lot about it. Have we got a government by the people or not? Roosevelt had no right to go to war.”

Witnesses who participated in the broadcast testified that the purpose was to prevent the invasion of Europe by telling the American people and soldiers that an attempted invasion would be risky with respect to the lives of the soldiers.

Of course, Gillars was intending to undermine American morale, and under our hypothetical Galloway would be intending to help enemy recruiting and gathering of other resources. Yet this wouldn't matter for substantive treason law purposes, and I doubt that it should matter for First Amendment purposes.

It seems to me there are several candidate First Amendment rules here:

  1. Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)

    I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government’s actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we’re morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected.

  2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."

    I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

  3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. That might be a distinction between Gillars and Galloway (I know of no evidence that he is being paid for his pro-insurgency speech); but it would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech.

  4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. This too might be a distinction between Gillars and Galloway (again, I know of no evidence that he is actually coordinating his speech with the insurgents). As I've written here, I think this is probably the best test — but I'm far from sure of it, and I'm even less sure that courts would agree with me.

  5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.

  6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. (Note that the woman convicted for being Tokyo Rose was eventually pardoned, apparently because of evidence that she acted under duress, which is why I prefer to focus on Axis Sally's conduct rather than Tokyo Rose's; but the purely constitutional question is the same for both.) The Conclusion of Tom Bell's article suggests that this might be the right test, though it also endorses an employed-by-the-enemy test.

Are there other reasonable options, for instance ones focused on the intended audience (domestic vs. foreign), the sort of aid, the magnitude of aid, or what have you? What do people think is right? Please post your thoughts in the comments, and think through the counterarguments. (For instance, if your observation is simply that George Galloway's speech is clearly protected because all criticism of the government is protected, you might want to at least explain how this would apply to Axis Sally's criticism of the government. Conversely, if your observation is that speech should be unprotected whenever it seems likely to help the enemy, you might want to confront the question of how we can have meaningful elections when no candidate can criticize the war effort — or even criticize the war's morality — for fear that such speech might help the enemy and might thus lead him to be thrown in prison.)

Charityblogging: This is super cool — using a blog to raise money for a good cause. (See updates here and here.) Hat tip: Eric Muller.

  I've been wondering about this, actually, ever since I read this post by Chris Bertram at Crooked Timber. It seems to me that lots of blogreaders have a strong identification with the blogs they read. For lots of blogreaders, our favorite blogs are not just websites; they're communities that we experience on a pretty personal level. If I'm right about that, then blogs may have a mostly untapped potential to get people aware of and interested in some of the many great charitable causes out there.

  For example, why not have a Volokh Conspiracy charity-of-the-month, in which we plug a great charity and then raise money here at the VC to donate to the cause? It might not work, as it might make the VC seem like a PBS pledge drive or just reshuffle charitable dollars from one cause to another. On the other hand, it might be a way of taking all the time and energy that we give to blogging (and reading) and channeling it to do some good.

Wednesday, August 17, 2005

ABA Rates Roberts "Well Qualified": The American Bar Association has announced that they are giving John Roberts a unanimous rating of "Well Qualified," the ABA's highest rating. It would have been really funny if the ABA had rated him "Over Qualified" instead, but I guess the ABA isn't known for its sense of humor. Link via Howard.
Criticizing Religion:

OpinionJournal reported yesterday (quoting the WAFB-TV Web site):

People on the religious right often accuse their counterparts on the secular left of antireligious bigotry, a description the secular left regards as unfair. But here's someone who seems to be guilty as charged: Joe Cook, head of the American Civil Liberties Union in Louisiana, who's fighting with the Tangipahoa Parish school board over religious speech in government schools. Baton Rouge's WAFB-TV quotes him as follows:

"They believe that they answer to a higher power, in my opinion. Which is the kind of thinking that you had with the people who flew the airplanes into the buildings in this country, and the people who did the kind of things in London."

If you don't find this troubling, imagine someone saying the reverse: They don't believe in God, which is the kind of thinking you had with the people who imprisoned dissidents in the gulag and murdered millions through famine.

One can equally imagine someone criticizing a group of Muslim government officials on the grounds that "They believe that they answer to Allah and can therefore ignore court orders restricting Muslim prayer in government institutions, which is the kind of thinking that you had with the people who flew the airplanes into the buildings in this country, and the people who did the kind of things in London." Fairly criticizing religions is perfectly proper: Religious ideologies, like any other ideologies, are eminently sound targets for public debate (though I recognize that sometimes such criticism is unlikely to be terribly persuasive). But, as I'll discuss a bit more below, the quoted argument does not strike me as fair criticism.

I should note that there seems to have been some context missing from the WFAB quote: The ACLU spokesman reports (and I have no reason to doubt him) that he wasn't just condemning the school board, but alleging that they were persistently violating the law and violating a court order. His comment was thus apparently focused not just on the board's belief in a higher power, but on its view that this belief justifies their resistance to a court order. (I include his entire e-mail to me, responding to my query to him, below.)

But as my Muslim official hypothetical suggests, that's still no reason for analogizing the government officials' religious beliefs — even beliefs that lead them to nonviolently resist a court order that they think improper — to beliefs that spawn terrorism. Lots of people have violated lots of laws because of their religious beliefs: We've seen this in the abolitionist movement, the antiwar movement, the civil rights movement, the "sanctuary" movement aimed at protecting illegal immigrants from certain countries, and more.

Sometimes an insistence on following what one sees as a higher authority has been noble, and sometimes misguided and pernicious. But when it's nonviolent — even if one thinks it's improper or even unconstitutional — it seems to me quite wrong to tar the religious officials with an analogy to terrorism, as if all religiously motivated violation of the law is alike.

I can't speak with complete confidence as to whether Mr. Cook's quote represents religiously bigoted belief on his part. But it does rest on a guilt by association based on group membership — here membership in the group of religious believers, or at least religious believers who believe religious law sometimes justifies violation of secular law — that is in many ways similar to classic religious bigotry (as I think the atheist and Muslim hypotheticals suggest).

In fairness to Mr. Cook, here's his e-mail:

Mr. Eugene Volokh,

In answer to your inquiry, my quote was taken out of context and sensationalized. As background, the media inquiry was about the system wide training that the Tangipahoa Parish School Board was undertaking on Monday. It was in response to an ACLU sponsored lawsuit and consent judgement signed off by the Board nearly a year ago on August 27, 2004. The Board finally acted belatedly to supposedly do in-service training and inform everyone of the contents of the consent judgement. That agreement prohibits prayers over the intercom and at all school sponsored events, including football games and other athletic activities.

Since the consent agreement, four motions for contempt have been filed against the Board and individuals within the system for violations related to the agreement and a court order in February:

At an Amite High School annual awards banquet a student gave a prayer over the speaker system, while the principal endorsed it and did not intervene or admonish the student. This followed on the heels of a teacher who wrote a prayer for a student to give during an end of year banquet. A loudspeaker prayer at a baseball game and a prayer by a student at a school board meeting preceded that incident.

I made a statement against this backdrop of defiance toward the federal courts exhibited by the Board (Defendants Pre-trial Inserts): Defendants reject the notion that the government can tell them how they can and cannot pray, or otherwise place restrictions on the manner in which they choose to open their meetings.

I made a much longer statement to the reporter in reference to the Board's [lack] of respect for the Constitution and the rule of law related to the current case, Doe v. Tangipahoa Parish School Board (USD ED La., 03-2870), and three others filed against them on church state issues over the past eleven years. Against that backdrop, I said something as I recollect to the effect that the Board has exhibited a disrespect for the Constitution and the rule of law as interpreted by the courts. They don't want to abide by the agreement. They have always crossed the line of separation of church and government and that is dangerous to our freedom and democracy. They believe they answer to a higher power than the rule of law, in my opinion, based on their past statements and actions. That is the kind of thinking and mindset that tragically and unfortunately led people to fly airplanes into buildings.

In retrospect, I regret the use of that hyperbole and analogy because the media and others have drawn erroneous conclusions and diverted attention from the real issues at stake. Now, I would say, "The School Board and their supporters who want the government to endorse prayers and religion in the schools are violating the Constitutional speed limit by going 100 mph in a 20 mph school zone. That kind of mindset endangers our freedom and democracy."

Joe Cook, Executive Director
ACLU of Louisiana

Testing the Influence of a Chief Justice:

A couple of weeks ago I suggested a research project on using Rehnquist's periodic absences from the bench this year as an opportunity to test the influence of the Chief Justice by comparing results in cases over which Rehnquist presided versus those over which Stevens presided as acting Chief to see whether there is any systematic differences in the outcomes depending on the presiding Chief.

Professor Frank Cross of Texas has decided to take up the challenge and is going to do some empirical work along these lines. The first step is to try to determine the exact dates and cases over which Stevens presided during the past term and those arguments over which Rehnquist presided. Does anyone have that information, or does anyone know where that information can be found and coded easily? This seems like something that an appellate shop somewhere may have collected already if they are willing to share it.

If you have any Comments you can post them here or contact Frank directly at University of Texas.

Related Posts (on one page):

  1. Testing the Influence of a Chief Justice:
  2. Testing the Influence of a Chief Justice:
Unreliable Assurances:

I'm looking for examples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) some time down the line — preferably no more than 50 years, just to avoid especially hard questions of causation — the foretold result did take place, despite the supporters' reassurances. (It doesn't matter whether you like the ultimate result or not; and it also doesn't matter whether you think the assurances were sincere or not.)

Here are three examples, from a forthcoming article of mine:

  1. In Griswold v. Connecticut (1965), the Supreme Court struck down a ban on the use of contraceptives. A three-Justice concurrence (joined by Justice Brennan) seemed to dismiss the argument that this would lead to slippage to a broader sexual autonomy right (presumably because others had been arguing about the risk of such slippage):

    [T]he Court’s holding today ... in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in [an earlier case in which he argued for a right of married couples to use contraceptives], “Adultery, homosexuality and the like are sexual intimacies which the State forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the in-stitution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality ... or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

    Yet in the recent Lawrence v. Texas, the Court used Griswold as "the most pertinent beginning point" for its decision to strike down laws banning homosexual conduct.

  2. From the 1960s on, many states decriminalized same-sex sexual conduct. Some states then banned sexual orientation discrimination in employment, housing, education, or public accommodations. Some added crimes based on sexual orientation to the list of offenses that are treated as hate crimes. Some allowed same-sex couples to adopt.

    When some such liberalizations were proposed, some people warned that these laws were steps down a slippery slope to broader rejection of traditional sexual rules, including towards same-sex marriages. These slippery slopes arguments were dismissed, sometimes contemptuously. The claim that a hate crime law “would lead to acceptance of gay marriages” was called “arrant nonsense.” A proposed antidiscrimination law, people were assured, does not “put Massachusetts on a ‘slippery slope’ toward” “legaliz[ing] ‘gay marriage.’” “Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the ‘slippery slope’ [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little.” Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A; Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30; Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1 (quoting Riverside Human Relations Commission member Kay Smith).

    Yet when the Massachusetts Supreme Judicial Court held that the state constitution requires the legislature to recognize same-sex marriages, part of its reasoning rested on the legislature’s decision to ban sexual orientation discrimination: This decision, the Court reasoned, undermined the asserted government interest in condemning homosexuality as immoral, and thus helped strip away any rational basis the law might have had. Likewise, when the Vermont Supreme Court held that the state constitution requires the legislature to recognize same-sex civil unions (marriages in all but name), a large part of its argument rested precisely on the legislature’s past enactment of various gay rights laws, including the enactment of antidiscrimination laws and hate crimes laws that refer to sexual orientation. Goodridge v. Department of Public Health, 440 Mass. 309, 312 (Mass. 2003); Baker v. State, 744 A.2d 864, 885-86 (Vt. 1999)

  3. When the Equal Rights Amendment was being debated in the 1970s and 1980s (both at the state and federal levels), and the ERA’s foes argued that the sex discrimination ban might lead to legalization of gay marriage, such arguments were derided as “emotional scare tactics,” “hysterical,” and “canards.” Yet one Justice who provided the necessary fourth vote for the Massachusetts decision relied in part on the Massachusetts Constitution’s Equal Rights Amendment, which banned sex discrimination: Sexual orientation discrimination in marriage laws, he concluded, was sex discrimination. Patricia Avery & Patrick Oster, Equal Rights for Women – Doomed?, U.S. NEWS & WORLD REP., Apr. 28, 1975, at 45; Betty Friedan, Feminism’s Next Step, N.Y. TIMES, July 5, 1981, § 6, at 14; Judy Mann, Obstruction, WASH. POST, Feb. 19, 1982, at B1; Goodridge, 440 Mass. at 344-49 (Greaney, J., concurring).

I'm pretty sure the same happened with assurances that the Civil Rights Act of 1964 would never lead to, or even authorize, race-based preferences for nonwhites; likewise, as David Bernstein coincidentally posted this morning, this happened with assurances that the Civil Rights Act of 1964 would never lead to speech restrictions, or interferences with certain kinds of discriminatory practices. I've also heard the same about assurances that the income tax would never go above 10 or 20%, and that the social security number would never be used as a national identification, but I haven't seen specific quotes on this, and I like to have specific quotes.

So if you have specific quotes and specific citations that fit these conditions — (1) when a proposal was made, opponents argue that it would by its terms yield a certain bad result, or would set a precedent for a bad result, (2) supporters assured the public that this wouldn't happen, but (3) the opponents' predictions ultimately came true (or very nearly true), and the supporters' assurances proved wrong, please post them in the comments.

I'd like the comments thread to be a useful resource for this, so please keep posts within these criteria. In particular, please don't argue about whether race-based preferences in employment, hostile work enivornment law, high income taxes, national identification numbers, or a constitutional right of sexual autonomy or same-sex marriage are a good idea. That's not what this post is about. Also, please limit yourself to specific quotes and specific citations. Please avoid general conjectures about when such unreliable assurances must doubtless have been made.

The Contraceptive Failure Rate of Abstinence?

The Seattle & King County Public Health page called "HIV/AIDS Program: How effective are condoms?" reports:

No method of contraception or disease prevention is effective when practiced incorrectly or inconsistently. A 1988 National Survey of Family Growth found abstinence to have a contraceptive failure rate of 26% when not practiced consistently. So, in abstinence, as in condom use, consistency is key.

Mighty odd-sounding, as OpinionJournal reported: Is it really abstinence when you aren't consistently abstaining? Or is their claim that people who decide to be abstinent nonetheless in practice end up backsliding — and often enough that they get pregnant in 26% of the first year in which they chose to be abstinent? (That's how contraceptive failure rates are generally measured.) If that's so, then that would suggest that abstinence decisions, at least unless reinforced by some belief system that will deepen the commitment to the decision, are remarkably ineffective.

But here's what's really going on: (1) a confusing term being used by public health scholars, which (2) likely led to confusion on the part of the person writing the Web page, which (3) translates into false claims being passed along to the public. If you look at abstracts of the 1988 Survey, you find that 26% is the failure rate for "periodic abstinence", which means "rhythm and natural family planning."

That's right: 26% is the failure rate for the rhythm method, not for deliberate decisions to abstain. Public health scholars apparently refer to the rhythm method and similar practices as "periodic abstinence," which is literally accurate, but potentially confusing to nonexperts, since it's close to a term ("abstinence") that means something quite different in lay discussion. The Web page author seemed to have been confused, interpreting "periodic abstinence" simply as "inconsistently practiced abstinence," and thus labeling it simply as "abstinence." And readers will therefore be getting false information: "Abstinence" in lay discussion generally refers to a deliberate decision not to have sex at all — rather than just to a decision to have sex only on one's presumably less fertile days — so people will read the claim as pointing to the dangers of abstinence, rather than the dangers of the rhythm method.

So three tips: (1) If you're a scholar, especially in a discipline where laypeople or nonacademic public policy analysts might consume your output, try to avoid adopting terms that may confuse outsiders. (I realize that sometimes there may have to be trade-offs between clarity to outsiders and clarity or convenience to fellow scholars, hence my use of "try.") Lawyers and judges, by the way, are frequent offenders here, creating legal terms that sound like one thing in English (e.g., "actual malice" in libel) but mean something quite different in legalese. This is especially dangerous in law, where the lay public is especially likely to be interested in the information, though also especially hard to root out, since many of these terms evolve over decades, and are hard to clarify because of the weight of precedent and tradition.

(2) If you're consuming academic works, be on the lookout for terms that don't mean quite what they seem to mean at first, and for qualifiers that are sometimes overlooked but are tremendously important. There are false friends in translation from technical English into lay English just as there are in translation between languages.

(3) Don't believe everything you read.

Civil Liberties and the 1964 Civil Rights Act:

It's well-known that supporters of the Civil Rights Act of 1964 denounced busing and quotas, only to have the Federal Government endorse these actions in short order. I've recently come across other interesting "legislative intent" materials, relating to the expected impact of the Act on civil liberties.

Rep. William M. McCulloch, ranking minority member of the House Judiciary Committee, as quoted in the New York Times, April 24, 1964: "The bill does not permit the Federal Government in any way to interfere with freedom of the press and freedom of speech." Senator Kenneth Keating denounced as "nonsense" and "dangerous claptrap" the idea that the proposed law could prohibit an Irish group from reserving a hotel ballroom for the exclusive use of those of Irish descent (N.Y. Times, March 15, 1964). McCulloch again (from Carl Albert papers, box 68, folder 5): "The Bill does not permit the Federal government to force religious schools to hire teachers they do not want." "The Bill does not permit the Federal Government to tell general retail establishements, bars, private clubs, country clubs, or service establishments whom they must serve." Hah!

[Puzzleblogger Kevan Choset, August 17, 2005 at 11:45am] Trackbacks
What is the next word

in this sequence? (No googling.)

  • Checkers

  • Liberty

  • Grits

  • Lucky

  • ????

[Andrew Morriss (guest-blogging), August 17, 2005 at 8:18am] Trackbacks
More on state support for legal education:

Commentators on my last post on state support for law schools offered some additional rationales I didn't include: 1) Having attorneys familiar with local law. 2) Contributing to a viable state legal culture. 3) Cronyism, patronage and institutionalized graft. 4) the library, at least, is a public resource. 5) providing a middle class subsidy. 6) making money for the university. 7) "pride in the great state school" as a benefit to residents. 8) assistance to the legislature and judiciary. 9) general externality of more education.

Some comments: 1) Local law knowledge: This is probably inversely related to the U.S. News ranking of the law school - the more prestigious the school, the less local it becomes. Moreover, funding a state-owned law school (which I am tempted to call the Stalinist mode of production, since it has the state owning the means of production) (which is akin to state ownership of an electric utility plant) - a commenter rightly criticized me for using the term Stalinist - is an inefficient means of doing this. Subsidizing only courses with primarily local content, and doing so at all law schools in the state, would be more efficient (although it would also be susceptible to faculty slacking by sneaking other content into the course, it doesn't seem worse in this regard than the slacking that occurs from just setting up a school generally). I can see an argument by the local judiciary and bar that they would like to see the state fund production of local legal knowledge. I don't see why that requires the state to own and operate a law school.

2) Local legal culture: Why (other than excluding lawyers from other states) do we want a local legal culture? If local legal culture means quirky ways of doing things, it is just a barrier to entry. If it means having relationships among members of the bar that promote good professional behavior, state law schools seem a really indirect way to achieve this, since we're spending a lot of money on people who don't stay in the state. Without being entirely tongue-in-cheek, it would probably be a more cost-effective means of producing that kind of bonding to send the local bar white water rafting for a few days each year than to run multiple state-owned law schools.

3) Cronyism, etc. An argument that explains but doesn't justify.

4) Library: a great point in 1950. Not so great now. A better use of state resources is a database of court opinions, statutes, regs, etc. available for free via the web. If more is needed, hiring some reference lawyer-librarians to help the public would enhance the service. A subsidy of print-oriented law libraries in fixed locations doesn't do most of the state's residents much good.

5) A subsidy for the middle class. An argument that explains but doesn't justify.

6) Making money for the university. An argument that explains but doesn't justify. State owned and subsidized businesses shouldn't be competing with private businesses. (Allowing public libraries to compete with businesses like Blockbuster and Netflix, for example, through DVD rentals is problemmatic too.) I am not sure this does explain it, however, since many state law schools undercharge the market rate. (That might be a subsidy for the faculty, who like the prestige of a higher ranked law school more than they like generating income for the university.)

7) "pride" as a benefit for residents. I suppose this exists, although presumably the football program ranks higher as something the public demands. Is this important enough to justify creating (UNLV is a recent example) and maintaining state law schools? I am very dubious about that.

8) Helping out the legislature and judiciary. Good point, although both branches of government have legal staffs (law clerks, staff attorneys, etc.) Again, no need to own the means of production, however, to secure this. Law professors can be hired for specific projects and drawing on a national pool would give the state more to choose from. Perhaps there is some value to having legal academics in a state, to offer free-lance critiques. I'd like to see some evidence of those critiques having a beneficial influence before I accept that as an argument. And, since most states have multiple private law schools, it isn't clear why the state needs to own more.

9) Education is good generally. True enough. But owning the means of production still seems to be an inefficient way to get it (more principal-agent problems, etc.)

Finally, Frank Cross raises a really interesting point about transition costs. I'm going to have to think about that one - perhaps the justifications to support creating state law schools existed in 1890 but no longer do. Does that mean we should close them now? More thought is definitely required on how to respond to that.

Related posts

Suspected Killer, Child Molester Encrypts Key Evidence on Computer: This is a week old, but I missed it the first time around. The Associated Press reports:
  Joseph Duncan III is a computer expert who bragged online, days before authorities believe he killed three people in Idaho, about a tell-all journal that would not be accessed for decades, authorities say.
  Duncan, 42, a convicted sex offender, figured technology would catch up in 30 years, "and then the world will know who I really was, and what I really did, and what I really thought," he wrote May 13.
  Police seized Duncan's computer equipment from his Fargo apartment last August, when they were looking for evidence in a Detroit Lakes, Minn., child molestation case.
  At least one compact disc and a part of his hard drive were encrypted well enough that one of the region's top computer forensic specialists could not access it, The Forum reported Monday.
  According to the article, Duncan is a suspect in a number of murders, several of them children. State investigators have now passed on the computer to the FBI, which will see if it can crack the encryption. (Hat tip: Bruce Schneier)

Tuesday, August 16, 2005

SSRN as a Measure of Scholarly Performance: Paul Caron and Bernard Black have just posted their paper on using SSRN downloads to measure the scholarly performance of law faculties. I am very skeptical about using SSRN to measure performance, whether of individual faculty members or faculties as a whole. Still, the paper has lots of very interesting tidbits for SSRN followers out there. Among them is this interesting insight into the possible future of SSRN:
  . . . SSRN already requires users to login before downloading a paper for ip addresses from which it has found a pattern of multiple downloads of the same paper. SSRN is likely to require users generally to login before downloading papers in the not too distant future. This should substantially limit the gaming potential that now exists.
  Required login can also respond to other limitations of the downloads measure. It will permit development of more refined measures of a paper's scholarly value. For example, downloads could be weighted, based on a metric of the quality downloader. Faculty downloads could be given greater weight than student downloads, for example.
  Anyway, everyone should now go to SSRN to download Paul and Bernard's paper, which will help boost their numbers and help out U Texas and Cincinnati in the rankings.

Related Posts (on one page):

  1. Gaming SSRN Downloads:
  2. SSRN as a Measure of Scholarly Performance:
Most Overrated USSC Justice of the 20th Century,

not including any Justice who has served in the 21st century. My tentative vote goes to Louis Brandeis, who also wrote the most overrated dissent of the 20th century, his ridiculous pro-monopoly opinion in New State Ice v. Liebmann. But I'm open to suggestions, below.

UPDATE: For a partial explanation of my nomination of Brandeis, see the Comments.

If It Happens to CNN, It Happens To America: Right now the homepage of has a red banner headline that reads:
  BREAKING NEWS — A worm shut down computers running Windows 2000 software across the United States. More soon.
  Meanwhile, Bloomberg is running a very brief story that suggests the worm is a bit more limited in scope. Bloomberg's story begins:
  Computers at CNN's Atlanta offices have been shut down because of a computer worm, the Cable News Network said.
  Stay tuned.

  UPDATE here.
Lithwick on Thomas: In a Slate piece on John Roberts, Dahlia Lithwick contrasts her vision of Roberts with her vision of Justice Clarence Thomas:
  The Clarence Thomases of this world — men unafraid of tearing down centuries of constitutional scaffolding in order to impose their own theories of constitutional construction — are far scarier to me. Those are the guys who probably did barf off the clock towers in college; guys with the hubris and drive to change the world without going through the confirmation process first. . . . Thomas is happiest when he's provoking outrage.
  It is true that Justice Thomas has expressed a willingness to overrule a number of cases that he sees as inconsistent with originalism. In an opinion piece, Lithwick is certainly free to characterize this as "tearing down . . . constitutional scaffolding in order to impose . . .theories of constitutional construction."

  But is there really a case that Justice Thomas is "happiest when he's provoking outrage"? Or that he is motivated by a "drive to change the world"? Am I missing something, or is Lithwick just making this up for dramatic effect?
The Scottish and English Religious Roots of the American Right to Arms:

Many Americans believe they have a God-given right to possess arms as a last resort against tyranny. This draft article (forthcoming later this year in the interdisciplinary journal Bridges) examines one of the most important sources of that belief: the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to be protected by an armed people ready to resist encroachments on their natural, sacred liberties. The principle that right to arms is the ultimate guarantor of the right to free exercise of religion is one reason why the First and Second Amendments are placed next to each other in the American Bill of Rights.

Please send constructive comments and criticisms to the e-mail contact on my website.

UPDATE: A commenter wonders if I am being consistent by criticizing people who support the violent Iraqi terrorist-insurgents, while also asserting (in the commenter's words) that "religious extremists were somehow justified in using violent force against British soldiers."

First, I think it's dubious to claim that the Congregationalist and Presbyterian American ministers who incited the American Revolution were "extremist." But in any case, they're not the subject my article, and it is preposterous to imply that John Locke or Algernon Sidney--among the most tolerant, decent people of their time, or any other time--were "religious extremists." They were extremely tolerant, to their everlasting credit.

The broader point is that I don't criticize Michael Moore and his ilk because they support violence, or because many of the violent people whom they extol are also religious people. I criticize Moore et al. because they support violence whose purpose is imposing totalitarian dictatorship. Violence to impose tyranny is evil; violence to liberate people from tyranny is legitimate, and is sometimes a moral duty. Or so Locke, Sidney, Buchanan, and Rutherford reasoned, and I agree.

New Stuntz Article Online: Harvard lawprof Bill Stuntz, perhaps the most interesting and influential writer in the field of criminal procedure in the last decade, has just uploaded a new piece: The Political Constitution of Criminal Justice. I've just skimmed over it, and it looks terrific. Here is the abstract:
  The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention - and budget dollars - away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it.
  Solving these problems requires radical constitutional reform. The article explains why, and then offers brief sketches of what that reform might look like in five areas: policing, crime definition, adjudication, punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.
[Andrew Morriss (guest-blogging), August 16, 2005 at 3:40pm] Trackbacks
State supported law schools:

A comment on one of my earlier posts raised the question of what business state law schools have in attempting to increase rankings. This raises a couple of interesting questions, about which I wrote an op-ed several years ago:

1) Why should states have law schools at all? If there is a desire for more lawyers in a state, funding a state law school (esp. a prestigious one) is not an efficient means of getting them. In Ohio, for example, Ohio State touts the opportunities for its graduates to get jobs across the U.S., not just in Ohio, after graduation. Clearly not aimed at maximizing the number of new lawyers in Ohio.

2) In a state like Wyoming or Idaho, where there is only a state law school, there might be a case that having a state law school is useful to the state because it creates a body of legal scholars who can help with law reform (Prof. Dale Goble at Idaho, for example, played a key role in reforming that state's administrative law.) But is establishing a law school the best way to do even that? Alaska has no law school - but it does have a law review (the Alaska Law Review) which it contracts out to a law school elsewhere. Isn't that a more cost-effective means of getting scholarship on Alaska law than setting up a law school?

3) Another justification is that state law schools help state residents go to law school by offering cheaper tuition. Again, however, there is no reason to do this via a state-operated law school. Vouchers for an appropriate tuition amount could be offered state residents and used at any law school if a subsidy is the motive. Vouchers would be more flexible as state resources expand and contract, since in tight budget years new vouchers could be cut in size or number. (Existing students presumably would need to be protected.) Operating a law school, on the other hand, is a lumpy financial commitment.

4) A fourth justification is that the poor, criminal defendants, or some other group need more representation. Again, however, subsidizing all graduates of a state law school because some might go into the desired field is an inefficient use of resources. Various medical scholarship programs already demonstrate how to do this effectively: give a scholarship that converts to a loan if the student doesn't practice in the desired area or type of practice.

So, why have state law schools at all?

Note: I completely exempt from the above my alma mater, the University of Texas at Austin. UT receives relatively little of its funding (I believe less than 25%) from Texas and has, like many flagship universities' law schools, changed into something other than a pure state law school. This exemption is self-interested, of course. Ohio State doesn't get an exemption because my employer competes with it. Self-interest again.

UPDATE: George Mason is, of course, also exempt from criticism since it is something of an admission against interest by the state - funding a law school that generates graduates who understand economics and faculty who publish scholarship that advances liberty is sufficiently rare that they should be the last ones cut off from the state trough.

UPDATE #2: Uh, the "disclaimers" were supposed to be humorous.

The Simpsons Channels The Ancients:

Pliny the Elder (AD 23-79), Natural History 8:209:


There is no animal who furnishes more variety to the tongue:
its meat provides nearly fifty flavors,
but that of the other animals only one.

The Simpsons, "Lisa the Vegetarian":
Homer: Wait a minute wait a minute wait a minute. Lisa honey, are you saying you're never going to eat any animal again? What about bacon?
Lisa: No.
Homer: Ham?
Lisa: No.
Homer: Pork chops?
Lisa: Dad! Those all come from the same animal!
Homer: [Chuckles] Yeah, right Lisa. A wonderful, magical animal.
Well, after all, he is called Homer.

[Puzzleblogger Kevan Choset, August 16, 2005 at 12:40pm] Trackbacks
On Puzzles and "Cheating":

When I started constructing crosswords for the Times, friends began to ask me what constitutes "cheating" when you're solving a crossword puzzle. I'm not sure why making the puzzles (or even being a regular solver of them) renders me an expert, but I've tried to supply answers over the years, and I've gotten to the point where I have a usual response that I'm comfortable with.

First and foremost, I think the answer is up to everyone as an individual. Crosswords (and other puzzles, or at least ones where there isn't money, pride, etc. at stake), are a competition between you and yourself. While it's trite, it's true: If you "cheat," you're only cheating yourself. That said, I've set a couple of guidelines for myself, and those I've told them to tend to agree with them.

I'm totally happy using the people around me as a resource. It makes the puzzles more social, and, while it's a help, it doesn't trivialize the enterprise. Also, there's a separate, and enjoyable, skill set involving knowing who will know what. I know that if there's a clue about the goalie on the 1973 New York Rangers, my father will know the answer, but he won't have a clue what "http" stands for.

I never Google. I feel like googling takes away the fun, and turns a mental exercise into a tedious task. Google will know the answer. Asking Google is basically the same as reading the answers the next day, something I also never do. That said, this wouldn't be a good law-oriented blog if every rule didn't have its exceptions. If I'm stuck on a clue like "'Catulli Carmina' composer" (From the Saturday, August 6, 2005 NY Times puzzle), then I really just don't care what the answer is. If I google it and find out the answer is "ORFF" (Carl Orff, that is), I'm in no way satisfied -- I'm not smarter, and I haven't learned anything interesting. But some clues obviously impart some interesting piece of information. Given the clue "Asian leader who had a Ph.D. from Princeton," (July 29, 2005 NY Times), while I don't know the answer, I know that the answer ("RHEE") will be interesting. Or other times, it's not an interesting fact, but a bit of word play that has me intrigued. If I have the clue "Bread box?" (also August 6) and have filled in the letters A_M, but can't figure out what the middle letter could possibly be, I'll check back the next day, because I know that I should know the answer, and I know I'll find it clever. (The answer, of course, is "ATM.")

I bring this all up because people have been leaving comments and emailing me about when it's acceptable to use Google on one of my VC puzzles. Lately, I've been trying to include a note saying not to use Google when I think it's inappropriate, but the Google/non-Google distinction is finer than that. With some puzzles, all the research in the world won't help you. You just have to rely on your ingenuity. Others, like this one, clearly require research. The point of that puzzle wasn't to test people's mental images of every nook and cranny of the borders between the 50 states. And then there are the puzzles that fall in between. In this one, if you simply googled the list I provided, you'd quickly find the answer. But I didn't expect anyone to know off-hand the order of ticker tape parades in Manhattan. I certainly didn't expect anyone to be able to identify whose parade was missing from the list. The thought process that I had in mind for solving it was something like: "1) These are mostly New York-related; 2) They are all people/groups who did worthy things in the last several years; 3) They're listed in the order in which they did these worthy things; 4) People who do worthy things in New York get parades; 5) Let me find a list of ticker tape parades and see if this matches up; 6) Not only does it match up, but the missing one -- the Discovery astronauts -- would be particularly appropriate today since the Discovery landed."

To put all of that in a nutshell, I think a good rule of thumb is that you should do whatever research doesn't make the puzzle trivial. If it's a "What do these things have in common"-type puzzle, then don't just google the list. If it's "Who won the Best Supporting Actor Oscar in 1975" (which I promise never to ask), don't go to the IMDb's list of Oscar winners. Etc.

Expressive Association After Dale:

SSRN has posted my paper, Expressive Association After Dale. Here is the abstract:

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of expressive association against the competing claims of an antidiscrimination law.

The right to expressive association had languished in obscurity for more than two decades after the Supreme Court articulated it in the late 1950s and early 1960s in the course of protecting civil rights activists from racist Southern governments. Controversy over constitutional protection of expressive association arose in the 1980s, when private associations claimed that it protected their right to discriminate when necessary to pursue the associations' goals. The Supreme Court seemed aghast that the expressive association right was being used as a tool of those who would seek to use its protection of their associative status in order to discriminate. In a series of opinions in the mid to late 1980s, the Court both narrowly defined the circumstances in which expressive association rights are impinged, and suggested that antidiscrimination laws are always "compelling government interests" sufficient to override these rights. The right of expressive association had been significantly weakened.

Dale, however, dramatically revived the right of expressive association. The Court found that the Boy Scouts had an expressive association right to exclude gay scoutmasters even though the Scouts' anti-homosexual activity policy was neither well-publicized nor especially central to its mission. Moreover, the Court rejected New Jersey's claim that the law was justified by the state's compelling interest in eradicating discrimination against homosexuals.

The essay examines the right of expressive association and the consequences of its reinvigoration by the Supreme Court in Dale. Part I recounts the ups and downs of the right from its inception in civil rights cases, to its low ebb in the 1980s, to its reinvigoration in Dale. Part II discusses some of the scholarly commentary on Dale and concludes that the right to expressive association after Dale will continue to be a broad one, with some limitations. Part III discusses some of the post-Dale decisions that support the interpretation of Dale as expounding a broad-based expressive association right fully applicable to a variety of situations. Finally, Part IV looks at some of the untapped potential uses of the right. In particular, Dale will often shield religious associations from intrusive antidiscrimination laws.

Monday, August 15, 2005

[Andrew Morriss (guest-blogging), August 15, 2005 at 9:03pm] Trackbacks
Scholarly impact and rankings:

Rankings systems like U.S. News' require lots of data to make them work. This is problematic with things like the reputation survey because the survey is likely generating mostly silly numbers. But there is some hope that a new source of data is going to be available via SSRN.

At the rankings conference last spring, UT Prof. Bernard Black and U. Cinncinnati Prof. Paul Caron presented a work in progress on the SSRN rankings. Unfortunately it doesn't appear to be on line yet, but it should be at some point since it is in the conference issue of the law journal that will come out later. You can look at the tentative versions of SSRN's rankings data of schools and authors (link requires logging in, I believe).

Assuming they fix it so I can't enhance my rankings by paying my kids to download my papers repeatedly, which I am sure they will, this is potentially a very interesting development. Having a reasonably objective measure of faculty productivity and impact will give a much better picture of schools' scholarship. Not perfect, of course, but better than what we have now.

UPDATE: The Black and Caron paper is available here.

[Andrew Morriss (guest-blogging), August 15, 2005 at 8:39pm] Trackbacks
The structure of legal education:

I hope Eugene will forgive me one post that strays a bit from the topic of rankings. I've just posted a paper on SSRN that discusses the structure of legal education in the context of an argument about the constitutionality of the Solomon Amendment. Even if you don't agree with me about the main point, you may find the legal education portion worth reading (and there are some good footnotes in there too.)

Update: The piece is currently under submission to law reviews and is attracting quite a few offers quickly. If you are a law review articles editor and you haven't accepted it yet, you can grab it!

[Andrew Morriss (guest-blogging), August 15, 2005 at 8:33pm] Trackbacks
What to do about law school rankings:

Bill and I conclude our paper on rankings with four recommendations - 3 for law schools and 1 for U.S. News. Here they are, with some additional commentary from me (which Bill may not necessarily endorse):

1) Non-elite schools should emphasize scholarships over scholarship.

A law degree is an extraordinarily expensive investment (tuition, living expenses, foregone income). Understandably, students are price sensitive. If law schools outside the top tier want "better" (higher LSAT) students, cutting their price either by lowering tuition or by increasing scholarship awards is a pretty good strategy. Elite law schools face a pretty inelastic demand curve; non-elite law schools don't. They can fill seats at high tuition, but they will lose the competition for the "better" students.

Now, the LSAT is far from being the best measure of whether someone is going to be a good lawyer, let alone a good law student. (It is pretty good at predicting first year grades, not as good at predicting upper class grades, and, of course, says nothing about the other dimensions of a person that might make him or her a good lawyer or student.)

Cutting tuition or increasing scholarships will hit the faculty hard, if done in any serious degree. Faculty slots will have to be left open, teaching loads increased, support for research and travel curtailed. Maybe legal scholarship is better off from having 190+ schools with professors writing articles; but maybe it isn't.

2) Market schools to legal employers to convince them that the quality of legal education matters. Employers prefer the top schools. The rest of the pack needs to figure out if doing something differently (more attention to legal writing? more clinics? making all students take accounting?) turns out better lawyers. Once a school finds something, it has to sell the employers on it. That's going to be tough and take some investment in careful study and analysis of the impact of program changes.

3) Schools in declining or stagnant legal job markets are in for a tough time. If your school is not in a fast growing legal job market, you need to get your students in front of those employers and tell prospective students about how you are doing it. Perhaps consider moving to a better location. There are a lot of schools in New York City and its environs, for example. A stronger school in a weaker market could buy/merge with a weaker school in a strong market like New York and make both schools better off. This seems radical today, but in the early 1900s mergers and other combinations between law schools and universities took place quite a few times. To pick on my own state, there are nine law schools in Ohio, located in slow growing or stagnant legal job markets: Ada, Akron, Cleveland, Cincinnati, Columbus, Dayton, and Toledo. (Columbus and Cincinnati are doing OK as job markets generally, but the growth in legal jobs is less than spectacular.)

4) U.S. News should take steps to limit gaming. For example, they could eliminate the part-time game by requiring schools to report the LSAT and UGPA numbers for part-time as well as full-time program students. If net transfers in are large, the school is likely playing games with the 1L numbers (I'll leave it to U.S. News' editors to define "large"). These changes would make U.S. News' rankings better in the sense that the rankings would be less susceptible to strategic behavior. They wouldn't improve the rankings in the sense of making them more accurate assessments of educational quality. Being better at doing U.S. News-style rankings strikes me as worthwhile, even if it isn't as worthwhile as creating a better system of rankings entirely.

How Many People Don't Object to Same-Sex Marriage But Oppose Bans on Private Sexual Orientation Discrimination?

A month ago I wrote:

I would think that quite a few people who are open to government recognition of same-sex marriage would be quite hesitant to create more restriction on private employers: For instance, the former would make lots of sense to many libertarians, but the latter would not. Moreover, some people who only mildly oppose same-sex marriage (for instance, because they recognize that the matter is largely symbolic, and that it makes little real difference to them whether same-sex couples are allowed to marry) might much more strongly oppose a new set of antidiscrimination laws, which would indeed restrict others' freedom of action.

I then asked people for examples of this argument. This is relevant to a law review article I'm writing about the possible slippery slope arguments against recognizing same-sex marriage.

Some people responded that this was all moot, because (1) many more people already support bans on sexual orientation discrimination in housing and employment than support same-sex marriage, and (2) those who oppose the bans on sexual orientation discrimination also oppose same-sex marriage. As one commenter particularly colorfully put it,

Volokh's big mistake is stating that 'many libertarians' would support same-sex marriage, but not restrictions on private employers.

There aren't "many libertarians." There are about 200, they all have blogs, and they spend all day in the libertarian echo chamber fooling themselves into thinking that their views matter.

I gave libertarians as an example — I could likewise imagine some pro-business voters who likewise think that same-sex marriage is a good idea but who don't want yet another antidiscrimination law that will burden employers and landlords. But still this made me think: What if indeed there are virtually no people who fit my category? If so, the "vote against same-sex marriage, even if you might support it or at least not oppose it on its own merits, because it might bring about broader antidiscrimination laws" would be pointless.

Fortunately, it turns out that there's actually some data, albeit about 5 years old, on the subject. In 2000, the Harris organization ran a poll that asked about both issues, and thanks to them, Joe Doherty at UCLA Law School's Empirical Research Group, and Amy Atchison at the reference library, I've gotten an analysis of the results. Here's the data, with a little bit of oversimplification and rounding:

Total respondents: 1010

Favor bans on sexual orientation discrimination

Don't know what they think about bans on sexual orientation discrimination

Oppose bans on sexual orientation discrimination

Refused to answer about bans on sexual orientation discrimination

Approve of same-sex marriage





Don't feel strongly about same-sex marriage





Don't know what they think about same-sex marriage





Disapprove of same-sex marriage





Refused to answer about same-sex marriage





So as of 2000, only about 3% (give or take the usual margin of error) of respondents approved of same-sex marriage (a decent proxy, I expect, for supporting legal recognition same-sex marriage) but opposed bans on sexual orientation discrimination. However, 9% to 10% of respondents were open to same-sex marriage — i.e., approved, didn't feel strongly, or didn't know what they thought — but opposed bans on sexual orientation discrimination.

This 9-10% group is the group that might be moved by a slippery slope argument. It's not trivial, given that even small groups can be swing votes when opinion is near what it takes to get a law enacted, which it may well be in some states as to antidiscrimination laws. The percentage may be higher still for particular antidiscrimination laws, such as laws that apply to private groups' membership decisions (assuming that Boy Scouts v. Dale, a 5-4 decision, is reversed, or assuming it's held to be inapplicable, for instance if the laws are limited to groups that get certainly government benefits).

But the 9-10% number does suggest that this won't likely be a huge group — and therefore that the slippery slope risk (i.e., the risk that recognizing same-sex marriage will help bring about the enactment of bans on sexual orientation discrimination), while not nil, is likely not very high.

(Again, note oversimplifications: Among other things, it's possible that recognition of same-sex marriage might increase the intensity with which those who already back broader antidiscrimination laws support them; this just doesn't seem tremendously likely to me. And of course, keep in mind the inherent limitations of all survey data.)


Something I did this morning naturally reminded me of this word, which I've long liked.


Did Senator Dick Durbin lie to Jonathan Turley about Roberts?--

Betsy Newmark has been doing a good job covering the flap between Illinois Senator and Minority Whip Dick Durban and Jonathan Turley. Here she reviews the basics of the story and comments:

Remember the story about Dick Durbin asking John Roberts about conflicts between his faith and decisions he might have to make on the bench? And remember that Durbin's office first denied that the conversation took place as Turley said it did and then Turley got mad and revealed that Durbin had actually been his source for the story. Well, now Turley is still mad at being called a liar by a senator who was actually the one lying to him and he has revealed that he has the voice of Durbin's spokesman on his answering machine approving the story and just requesting that Durbin's name be left out of it as a source.

It appears that the first lie was the way Durbin said the conversation with Roberts went in the first place. Durbin apparently lied to Turley at first by saying that Roberts said he would recuse himself from any decision that conflicted with his religion. But the people who were from Roberts' side deny that is what he said. And it would have been a big story if it had been true. But it wasn't and Durbin himself denied that that was what Roberts said when the story broke. That is when Turley went public saying that Durbin was the source for the first story.

So, you have a senior Democratic Senator, the Minority Whip, claim that a Supreme Court nominee said he'd recuse himself from cases that conflicted with his Catholic faith. That is a major story. Given how circumspect Roberts has been on how he would plan to vote, this raises all sorts of interesting questions about what he would consider a conflict. Then it turns out that the Senator is LYING about what Roberts said. And he thought he could get away with it because he was hiding behind being an anonymous source. So now the story is that the Minority Whip of the Senate LIED about what a Supreme Court nominee said and he LIED about the conversation to a journalist in order to put a story out about Roberts and his religious faith. That is despicable and goes way beyond just a media story about lying to a reporter. He lied about what a potential Supreme Court justice had said. Was he planning to bring up the fictitious statement later on if Roberts got on the Court and didn't recuse himself from some capital punishment or abortion case? Was he planning to use this fictitious statement in the hearings[?]

I won't pretend to know with certainty whether Turley or Durbin is telling the truth, but I would tend to believe Turley. It could be because I've met and talked with Turley a few times, while I've met Durbin only once. It could be because the way that the story unfolded would seem to point to Turley being the more plausible truth-teller. Or it could be because of Durbin's occasional lack of sound judgment and his reputation for twisting things for partisan benefit that sometimes goes beyond even the wide latitude given politicians for such twisting.

Although I have been voting mainly Democratic at the state and local level recently (as well as for the US Senate), one of my Democratic senators that I do not plan to vote for is Durbin. (To his credit, Durbin gave a good commencement address at the last Northwestern Law School graduation — and I told him so after his talk.)

Durbin's offensive grilling of Viet Dinh was the first strike. His comments on Gitmo, for which he gave only a limited apology, were the second. Now, unless there is some reason to doubt Turley's account, this is the third strike. It is true that lawyers and politicians are two groups in society not noted for honesty, but if Durbin adopts a tone of moral superiority in his questioning of John Roberts in the Judiciary hearings, it will be interesting to watch whether Durbin can pull it off with a straight face.

"The Judge Report:

John Roberts is either a mad bomber of abortion clinics or a homo-tastic friend of the sodomite," reports Jon Stewart on the Daily Show. But, hey, wouldn't it be more fun if here both? And a french-fry-hating child-bondage supporter to boot? People, people, have some imagination. This isn't a black-and-white, either-or, right-or-left world we're living in, you know.

(Thanks to How Appealing for the pointer.)

Scientific Paper Hoax:

I just learned of these graduate students who submitted a fake paper to an academic conference and then were invited to present it (before the organizers learned it was a hoax). They used a random paper generator. The web site also allows anyone to generate a random paper. They then created their own session at the conference for which they have a video on the web site (although I couldn't get the video to play, just audio). They state:

SCIgen is a program that generates random Computer Science research papers, including graphs, figures, and citations. It uses a hand-written context-free grammar to form all elements of the papers. Our aim here is to maximize amusement, rather than coherence.

Once it came out that their paper was a joax, they had their invitation revoked but then raised money to go to the conference anyway and present their own session--which they did, generating a random title for their program and three random papers. They also review prior hoaxes, such as Alan Sokol's Sokal's famous hoax.

Their web site with details is here.

One More Post, About Motivations:

Eric Muller writes, in comments to an earlier post:

[Quoting me:] "[I]t is perfectly legitimate to identify people who have expressed reprehensible views, and to publicly condemn them."

Eugene, I don't think anyone is contesting the legitimacy of such an effort. I think what people are wondering about is

(a) the wisdom of such an effort,

(b) what might motivate a person to launch it, and

(c) how such an effort will contribute to, or, more likely, detract from, reasoned public discussion and debate of a matter that greatly concerns and affects all of us Americans--the "good guys" who support the war in Iraq, and the "bad guys" who don't.

(1) A commenter wrote, "That said, the phrase, 'I think this is a good opportunity to collect examples of such people, to show that they do exist, and are worth criticizing.' is disturbing. Give me names, quotes and sources? Nothing stifles open debate like a witchhunt." Later, Prof. Muller himself labeled the process as a witch-hunt (though possibly on narrower grounds). Last I checked, labeling an effort "witch-hunt" does contest the legitimacy of the effort.

(2) In the post to which Prof. Muller was commenting, I wrote "I was challenged to try to come up with such lists, by people who seemed to suggest that there were no such supporters, at least in positions of any significance (see, e.g., this comment, among others)." I cited this comment, though I can also point to this post.

I criticize a group. Others argue that the group has no members, or a trivial number of members. I think the implication was that I must be really trying to criticize some other group, since what's the point of criticizing an empty group -- but even if I'm misreading this implication, the explicit assertion is that I'm being foolish in criticizing people who don't exist.

What am I supposed to do? Leave the criticisms unanswered? Say "Oh, there are such people, but because I don't want to be a McCarthyite, God forbid that I should name names and give quotes and sources to make this a witch-hunt"? Yeah, that would have been highly persuasive.

So people who want to criticize the supporters and justifiers of the Iraqi insurgents are damned if they do and damned if they don't. If we don't mention names, we either look dishonest or foolish. If we do mention names, we're witch-hunters -- but no, no-one is contesting the legitimacy of our effort by calling us witch-hunters -- and our motives are questioned because of that. No, thank you. Take your accusations to those who'll take them lying down.

(3) Publicly condemning murderers -- whether Iraqi insurgents, anti-abortion terrorists, racist killers, or whoever else -- probably doesn't do a tremendous amount of good. But I suspect it does some good.

But the follow-up posts, of course, had little to do with any such public-spirited motivation on my part. I posted them because a lot of people -- including prominent bloggers such as Prof. Muller and posters at Crooked Timber -- were condemning me, some using quite harsh terms. When people do that, I often try to defend myself by providing facts and arguments supporting my position (and spend much more time and energy than I'd have preferred doing so).

So don't criticize me, insult me, and yet when I try to round up facts and provide arguments supporting my position, suggest that my responses somehow don't much advance public debate.

Westerners Who Support and Justify the Iraqi Resistance:

Thanks to some search of my own, and posts from others, here are some: Recently reelected Member of Parliament George Galloway, author, former Cabinet Secretary, and recently reelected Member of Parliament Clare Short, filmmaker Michael Moore, cartoonist Ted Rall, British and Australian journalist and filmmaker John Pilger, Canadian author and journalist Naomi Klein, and the World Tribunal on Iraq, whose statement was signed by several apparently notable people (including the somewhat ambivalent Nobelist Arundhati Roy and Vagina Monologist Eve Ensler) and was endorsed by, among other things, several European academics and a Spanish judge. There are quite a few considerably smaller journalists that people pointed me to, as well as some Socialist and Green writers and activists (see links in the recent posts and comments on this thread).

These people deserve to be condemned, and I'm happy to do so. What fraction of public opinion do they represent in the West (whether Europe, America, Australia, or other relatively Western countries)? I can't say, but when politicians such as Galloway and Short make statements, and get reelected after making them (despite how incendiary the statements are), that's good reason to think that at least some voters — quite likely not even a majority in their district, but a substantial number — endorse their views. Likewise, while I'm hesitant to infer much from comments by random posters on various Internet fora, the presence of those comments, coupled with the views expressed by more prominent people, suggests that there is a considerable number of people who take this position.

In the past, I've criticized Klansmen, neo-Nazis, and anti-abortion terrorists. Are there vast numbers of such people, or even of their sympathizers? I should hope not. Do American political leaders endorse these people? I don't think so. Should they still be condemned? You bet. Likewise with those who support and defend the Iraqi insurgents.

I've now spent far more time on this subject than I should have, given the press of real business. I hope to give it a rest. But it struck me as important to defend the legitimacy of the condemnations I was voicing, and to respond to the denials that there are indeed considerable numbers of people out there who merit such condemnation.

Protestant Denominations and Israel.--

John Hindreaker has a nice article in the Weekly Standard about the biased attitude toward terrorism in Israel of the largest Lutheran denomination, the EVANGELICAL LUTHERAN CHURCH IN AMERICA (ELCA):

The ELCA's pronouncements on the Middle East are so one-sided as to suggest a dissociation from reality. Hamas gunmen brandish firearms as they celebrate Israel's withdrawal from Gaza and vow to continue their effort to exterminate the Jews; yet the ELCA thinks the chief threat to peace in the region is Israel's attempt to keep these terrorists out [by building a fence]. For that matter, the ELCA seems more worried about Israeli tax policy than Palestinian terrorism.

Hinderaker is probably right that the source of the bias is more likely to be the church's leadership, rather than rank-and-file Lutherans. It seems as if elites are more prone to certain kinds of moral blindness and excusing of evil.

UPDATE: Leviatan Slayer counters: "Israel is in a rough spot, to say the least, and I don't really know enough about the situation to comment one way or the other, but surely it's not an unreasonable position to be skeptical of the desirability of the 'security fence'."

I would certainly agree with Slayer that it is not unreasonable to be skeptical of the fence, but that is not quite what Hinderaker was criticizing the Lutheran Church for:

The ELCA paved the way for the "Peace Not Walls" resolution with an article in the May 2005 issue of the denomination's official magazine, the Lutheran. The Lutheran article was permeated by anti-Israel bias and riddled with false allegations against Israel. The Committee for Accuracy in Middle East Reporting in America (CAMERA) identified 12 major factual errors, and one overriding omission:

A crucial omission marred the [May 2005] article as a whole. There was not one reference to Palestinian terrorism originating from terrorist strongholds in West Bank cities, the causal factor in Israel's erecting a protective barrier. The omission is indicative of the striking disregard for Israeli suffering and loss of life that underpins the piece.

The failure even to mention, let alone denounce, Palestinian terrorism is a consistent hallmark of the ELCA's writings on the Middle East. The "Peace Not Walls" resolution, like the Lutheran article, makes no specific mention of Palestinian terrorism, never acknowledges that Israel is building the fence to keep out mass murderers, not to steal a few acres of land, and gives no hint that the fence has saved many Israeli lives by making it more difficult for terrorists to slip into Israel.

Hinderaker's point, which seems sound to me, is that one can't possibly discuss the merits, morality, or effects on peace of the fence without addressing why it was built. From the Lutheran account, it's as if the fence was being built for spite, rather than protection. The Lutheran Church is being criticized mainly for being "one-sided."


Some posts have accused me of a "witch-hunt" for trying to identify people who support or justify the Iraqi insurgents. (See, for instance, some comments here.)

I've long been quite troubled by the casual use of the term "witch-hunt." First, the most obvious thing that's wrong with witch-hunts is that there are no witches. If you're trying to identify supporters of Iraqi insurgents, supporters of the KKK, neo-Nazis, anti-Semites, or whatever else, you're trying to identify people that most certainly do exist. (More details in a forthcoming post.)

Second, some people seem to suggest that it's just impermissible or McCarthyite to come up with lists of people who have certain reprehensible views. Well, I was challenged to try to come up with such lists, by people who seemed to suggest that there were no such supporters, at least in positions of any significance (see, e.g., this comment, among others). But beyond this, it is perfectly legitimate to identify people who have expressed reprehensible views, and to publicly condemn them.

Third, Eric Muller (IsThatLegal?) says this -- apparently, my posts and David Kopel's -- "is turning into a witch hunt." It's not completely clear why he says this, but I take it that he's using "witch hunt" to mean allegations based on inadequate evidence. Prof. Muller actually acknowledges that two of the examples David Kopel gave are accurate; he disputes a third, Arundhati Roy, about which Kopel himself noted a caveat; and he points out that the fourth is based on hearsay, though hearsay from a seemingly quite sympathetic source. Yes, if we were actually hanging supposed witches, that would be pretty weak evidence; and even in general discussion of the matter, one can certainly legitimately point to the weakness of the evidence, and suggest that the report is not dispositive of Ms. Garofalo's views. But if this is really a "witch hunt," then Salem must have been a pretty mellow place.

More shortly.

[Puzzleblogger Kevan Choset, August 15, 2005 at 1:52pm] Trackbacks
Another Movie Record:

As a follow-up to the IMDb records post a few days ago, who has the earliest birth date listed on IMDb?

Statements Justifying the Bad Guys:

Throughout these posts, I've criticized both those who expressly support the Iraqi insurgency, and those who justify their actions. My original post quoted an OpinionJournal piece that did this: The piece gave examples of people justifying the insurgents, and then spoke broadly of "Westerners who side with the 'Iraqi resistance' against America and its allies." I understood "side with" as referring both to express support and to the justification of the insurgents. But just to be explicit, in the update and in later posts I made clear that I was speaking of both categories.

Why do I treat the two similarly? Well, imagine that we were talking not about the Iraqi insurgents, but about anti-abortion terrorists, or violent Klansmen or neo-nazis, or other murderers. And say someone said things like:

Well, you've got to understand the situation: The Southern resistance fighters see outsiders trying to control how they live, trying to destroy cultural institutions that have existed for decades, and taking the side of one ethnic group against another. It makes sense that they lashed out against those three Northerners who came down to impose their Northern views on Southern whites.

Imagine that instead of unborn babies, the law allowed the killing of Jews or the disabled or the poor. Wouldn't many of us join the resistance, and be willing to kill those who are doing the killing, and to save innocent lives? We've always depended on resistances to get rid of oppressors.

It is simple. If someone in the building right in front of you kills an unborn baby without any reason but that it's convenient to do so, what you will do? You retaliate. It's what I'd do. It's probably what you'd do too.

Sure, as to each of the statements one could come up with some interpretation that suggests the speaker doesn't really support the killing. Maybe they're just impartial observers of human nature, offering useful psychological insights.

Or maybe not. It seems to me that in such situations, we can quite reasonably infer that the person really is in substantial measure on the side of the bad guys — maybe not completely (people's views are often ambivalent), but to a considerable extent.

Of course one shouldn't draw such an inference lightly: As I mentioned in my previous post, one certainly shouldn't infer sympathy with the killers simply from a criticism of the other's policies. "Abortion is murder" isn't the same as "Anti-abortion terrorism is justified." "The war in Iraq is wrong" isn't the same as "the insurgents' killings are justified." But when a statement goes much further, for instance analogizing the killers to respected people (e.g., the French resistance, the Minutemen), or suggesting that we'd do the same (and rightly so) in a situation that the speaker is suggesting is morally equivalent or at least quite similar, then it seems to me perfectly legitimate to lump such justifications together with outright support.

Still more to come shortly.

Don't Let False Imputations of Bad Motives Stop Legitimate Arguments:

Some reactions I've gotten to last Friday's posts on the supporters and justifiers of the Iraqi "resistance" have pointed out that opposing the war in Iraq isn't the same as supporting the enemy.

In fact, I've made exactly the same argument myself in the past (see, e.g., my post criticizing the locution "objectively pro-Saddam" for wrongfully imputing bad intentions; see also this op-ed defending the rights of dissenters, and speaking disparagingly of "the natural tendencies of governments and their allies -- tendencies that are only exacerbated in wartime -— to assume that they're right, and that their opponents are traitors"). There's no need to persuade me of this. And this is precisely why I am criticizing not all opponents of the war, but rather "those Westerners who do endorse the Iraqi 'resistance,'" or who try to justify their actions.

Critics of the war should certainly not let themselves be browbeaten by false imputations that they support the other side.

Likewise, critics of the Iraqi insurgents -- and of those who defend or justify the Iraqi insurgents -- should not let themselves be browbeaten by false imputations that they are trying to unfairly condemn all opponents of the war.

More shortly on this topic.

Backlash Against the Kelo Backlash?

Tom Blumer at Bizzyblog has a look at the "backlash" against the "Kelo backlash" and decides that it doesn't hold water, discussing a column by one Michael Kennedy in the New London Day newspaper justifying Kelo:

Regardless, here’s one guy [the columnist, Michael Kennedy] who thinks Kelo was a good ruling. I don’t agree. If the Kelo Seven are being selfish, shortsighted, obtuse, etc., it’s their right. They earned that right when they took ownership of their property. So-called larger societal goals beyond those that truly benefit the common good (roads, bridges, etc.) don’t enter into the equation. Sorry, Mr. Kennedy.

Well said.

Also, Tom has a number of good links on this post that follows some of the fall-out from the case, including this one on the "fair market value" to be received by the displaced homeowners.

If this is something on which Tom and I can actually agree, then this is definitely more evidence of the widespread nature of the anti-Kelo backlash that I described last week.

Michael Greve on "How To Think About Constitutional Change" Part II:

Is now available here. It is entitled, "Originalism, Pragmatism, and the Constitution." The Abstract:

The preceding Outlook discussed the liberal-progressive vision for a “Constitution in 2020”--wedded to the constitutional apparatus of the New Deal and bent on entrenching, with the U.S. Supreme Court’s capable leadership, a European-style welfare state. This Outlook contrasts the liberal project with a more appealing program: originalist pragmatism and a Constitution based on the principle of competition.

Part I, "The Progressive Vision," is here (which I mentioned here).

WaPo on Schumer: Monday's Washington Post has a pretty amusing profile piece on Senator Chuck Schumer — or, perhaps more accurately, on what it's like to meet Senator Schumer for lunch at a Chinese restaurant. Hat tip: Howard.

Sunday, August 14, 2005

Civil Liberties and the War on Terror Abroad: The New York Times has an interesting article today on measures being taken by foreign governments against Muslim preachers who are advocating violence and hatred of the West. The article focuses on laws and enforcement practices in Britain, Italy, Australia, and Canada.

  The very end of the story mentions a recent poll in the Globe and Mail on attitudes toward the war on terrorism among Canadians. The poll produced the following results:
What measures for the war on terrorism do Canadians support?

Deporting or jailing anyone who publicly supports terrorists or suicide bombers.

Oppose/strongly oppose: 15%
Strongly support/support: 81%
Don't know: 4%

Having video cameras in all public places.

Oppose/strongly oppose: 25%
Strongly support/support: 72%
Don't know: 2%

Giving the U.S. any information it requests about Canadian citizens whom they suspect of being terrorists.

Oppose/strongly oppose: 33%
Strongly support/support: 62%
Don't know: 5%
The Future of Iraq: The Washington Post has a fascinating front-page report on how the Bush Administration may be quietly reorienting its goals and expectations for Iraq. It begins:
  The Bush administration is significantly lowering expectations of what can be achieved in Iraq, recognizing that the United States will have to settle for far less progress than originally envisioned during the transition due to end in four months, according to U.S. officials in Washington and Baghdad.
  The United States no longer expects to see a model new democracy, a self-supporting oil industry or a society in which the majority of people are free from serious security or economic challenges, U.S. officials say.
  "What we expected to achieve was never realistic given the timetable or what unfolded on the ground," said a senior official involved in policy since the 2003 invasion. "We are in a process of absorbing the factors of the situation we're in and shedding the unreality that dominated at the beginning."