Saturday, November 26, 2005

Avian Flu:

I just finished reading Michael Fumento's article on the feared Avian flu pandemic, "Fuss and Feathers". It is a long piece, but worth reading. Fumento's bottom line is that it is highly unlikely that the Avian flu will turn out to be a major pandemic. First, many flue pandemics have been predicted since the Spanish flu in 1918 and none of them has turned out to be as bad as predicted (remember the Swine flu in the 1970s?). Second, the trench warfare of WWI created uniquely dangerous conditions for the spread of the Spanish flu that we don't have today. Third, many of the deaths from the Spanish flu were actually caused by secondary bacterial infections which could be treated today by modern antibiotics. Fumento urges caution in responding, so as to make sure that the Avian flu hysteria is not worse than the flu itself. He suggests we should be prepared to respond, but we shouldn't panic yet.

An interesting read that presents a perspective on the Avian flu that I haven't seen anywhere else.


Michael Fumento writes:

A version with hyperlinks, plus a sidebar, plus illustrations is available at Those hyperlinks ... answer a lot of your readers' questions.

I have replaced the original link to the Weekly Standard article (that omitted the hyperlinks, sidebars, and illustrations) with the fuller version of the Fumento piece provided here.

Randolph on Friendly on Abortion: The Federalist Society has posted the text of Judge Ray Randolph's recent speech (mentioned by Juan here) about Judge Henry Friendly's never-published abortion opinion. Thanks to Michael Cernovich for the link.

Friday, November 25, 2005


The new book Buffaloed: How Race, Gender, and Media Bias Fueled a Season of Scandal by Bruce Plasket (available from attempts to debunk the huge national sexual assault scandal that surrounded the University of Colorado football team in 2004. My review of the book for the Rocky Mountain News finds that Plasket is on-target with many of his charges, but he also overstates his case and ignores contrary evidence.

One point about which Plasket is clearly correct in his criticism of media malfeasance is an incident I wrote about in early 2004, when the media treated some unsubstantiated hearsay accusations about two anonymous CU players as if they were plainly true. Likewise, as Plasket accurately notes (and I wrote about earlier this year) the media gave scant attention to the exoneration of two CU football players who were accused of raping a woman they met at a bar in 2003.

Pythagoras for the Prosecution: The Wednesday New York Times had this report about a court ruling on how to measure whether a defendant was selling drugs within 1,000 of a school:
  The question before the state's highest court, the Court of Appeals, was whether a man named James Robbins was guilty of selling drugs within 1,000 feet of a school - which carries a longer sentence - when he was arrested in March 2002 on the corner of Eighth Avenue and 40th Street in Manhattan and charged with selling drugs to an undercover police officer.
  The nearest school, Holy Cross, is on 43rd Street between Eighth and Ninth Avenues. How to measure? On foot, Mr. Robbins's lawyers argued, the school is more than 1,000 feet away from the site of the arrest, because the shortest route is blocked by buildings. But as the crow flies, the authorities said, it is less than 1,000 feet away.
  Law enforcement officials calculated the straight-line distance using the Pythagorean theorem (a2 + b2 = c2) measuring the distance up Eighth Avenue (764 feet) as one side of a right triangle, and the distance to the church along 43rd Street (490 feet) as another, to find that the length of the hypotenuse was - 907.63 feet.
  Lawyers for Mr. Robbins argued that the distance should be measured as a person would walk it because "crows do not sell drugs." But in a unanimous ruling, the seven-member Court of Appeals upheld his conviction and held that the distance in such cases should be measured as the crow flies.
  The opinion of the New York Court of Appeals is here. Thanks to HJB for the link.
Working on Turkey Day:

Should it be legal for supermarkets to open on Thanksgiving? Andrew Morriss says "yes," but Massachusetts' Attorney General says no -- and is enforcing his state's old blue law against Whole Foods markets.

Related Posts (on one page):

  1. Are Blue Laws "Necessary"?
  2. Working on Turkey Day:

Wednesday, November 23, 2005

The First Thanksgiving (the original account).--

With Americans celebrating Thanksgiving tomorrow, I thought that I'd rerun (and slightly update) my post from last year.

It is worth remembering the only specific contemporary account of the first Thanksgiving in Plymouth, that of Edward Winslow. His letter was dated December 13, 1621.

I include most of a paragraph about farming methods because it indicates some of the foods that they would have served:

We set the last spring some twenty acres of Indian corn, and sowed some six acres of barley and peas, and according to the manner of the Indians, we manured our ground with herrings or rather shads, which we have in great abundance, and take with great ease at our doors. Our corn [i.e., wheat] did prove well, and God be praised, we had a good increase of Indian corn, and our barley indifferent good, but our peas not worth the gathering, for we feared they were too late sown, they came up very well, and blossomed, but the sun parched them in the blossom.

Our harvest being gotten in, our governor sent four men on fowling, that so we might after have a special manner rejoice together after we had gathered the fruit of our labors; they four in one day killed as much fowl, as with a little help beside, served the company almost a week, at which time amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some ninety men, whom for three days we entertained and feasted, and they went out and killed five deer, which they brought to the plantation and bestowed on our governor, and upon the captain, and others. And although it be not always so plentiful as it was at this time with us, yet by the goodness of God, we are so far from want that we often wish you partakers of our plenty.

There are some interesting things and some ambiguities in this account. The only recreation mentioned besides feasting is exercising their arms (guns). Note also that four men in one day shot almost enough fowl to last a week. Both of these points would tend to undercut the claims in Arming America that guns were not accurate enough to be of much use and that people didn't care about guns.

This page speculates about the probable menu. There is also a more general account of the harvest time written decades later by William Bradford.

Actual color photograph of Pilgrim John Howland ---->

Last year, in a long, interesting post, Patrick Spero tells of a late 17th century account that omits the Indians as guests and places the date of the first formal Thanksgiving in the fall of 1622, not 1621. Yet there is little reason to doubt the date of Winslow's 1621 account, since his letter was dated in December 1621 and is in sequence with other letters that place the events being described in 1621, not 1622. It would seem highly unlikely that the year on his letter is wrong. The various influences on Thanksgiving traditions and the revisionist tendencies of later reporters make a fascinating story in themselves.

UPDATE: My post concerned the "the first Thanksgiving in Plymouth." Not surprisingly, several bloggers or posters have pointed to other pre-1621 Thanksgivings celebrated by Native Americans, Spanish explorers, or other European visitors and settlors in what is now the United States.

Too Bad for T.O.

Earlier today, NFL arbitrator Richard Bloch rejected Terrell Owens' greivance against the Philadelphia Eagles in its entirety. After enduring months of Owens' antics, the Eagles suspended Owens for four games without pay (the maximum allowed under the league's collective bargaining agreement) for "conduct detrimental to the team," and stated their intention to deactivate him for the remainder of the season. Owens and the NFL Players Association challenged the suspension and planned deactivation, claiming that the suspension was too harsh and that the Eagles had an obligation to release Owens if they had no intention to play him.

Most observers expected Bloch to reduce the suspension and Owens to file a second complaint when the Eagles deactivated him. Instead, Bloch (coincidentally a Washington Redskins fan) completely rejected Owens' greivance, finding Owens conduct was a "destructive and continuing threat" to the team. Bloch found the suspension warranted, and validated the planned deactivation, finding "no violation of the labor agreement inherent in the club's decision to pay Mr. Owens, but not to permit him to play or practice due to the nature of his conduct and its destructive and continuing threat to the team." Owens will be paid for the remainder of the season, but his misconduct will not be rewarded with a release or a reactivation. Rather, he'll have to sit at home and watch football on TV.

Owens is a great player — perhaps the most talented wide receiver in the game. He's also shown himself to be the most selfish (and that's saying something). Some team will surely pick him up next season, but that team will also insist that his contract include numerous disciplinary clauses, authorizing severe sanctions should he misbehave. Bloch's decision makes clear that such clauses will be upheld, and spoiled selfish players will not be permitted to disrupt their teams for personal gain. T.O.'s loss is a win for the game.

UPDATE: The full text of arbitrator's ruling is here.

Appalling Service from Dell:

Dell gets the dubious honor of having given me what's likely the most ridiculously bad customer service experience I've had in years. I have a simple problem: The hard drive for my Dell notebook crashed after my computer was out of warranty. I bought a new hard drive, but now I need a boot disk for the Microsoft XP Professional operating system that I originally bought loaded onto my computer. I suspect this happens very often; there ought to be a standard procedure for it.

I've now spent over an hour trying to get this straightened out — almost all of it navigating through the voice-mail menus, waiting on hold, or being transferred to some other department. I got cut off during the transfer process twice. I've probably talked to eight different people. I was transferred to spare parts, who told me I had to talk to customer support, who then tried to transfer me back to spare parts, except at that point the call was cut off.

I was eventually told that I had to re-buy the operating system — not a good position for Dell to take, but if that's what it takes, fine. I was transfered to spare parts, who took my service tag, and told me they had to transfer me somewhere else. Where did they transfer me to? The same voice-mail menu I came from.

OK, I thought, but at least the person who transferred me to spare parts gave me a part number. Maybe I could find it online. Nope, the spare parts search form online tells me there's no such part number. And the online chat system that they suggested on the phone as a substitute for waiting on hold? I did get through to someone in a few minutes; and what did she tell me? Call spare parts. I eventually got through to customer care, and asked to talk to a supervisor. I was put on hold for a while — and then disconnected.

Now maybe all computer manufacturers are like that, but I'm hoping they aren't. If you can recommend some companies that actually provide decent customer service, please post the answer in the comments. I'm thinking that rather than dealing with Dell again, for this or for anything else, I should probably just get a new system from a company that's actually interested in pleasing its customers. But in any event, folks, be warned about what dealing with Dell can sometimes be like.

UPDATE: I tried one more time, and finally got somewhere. I called the sales line and said that I was a customer who also had a popular Weblog, and that I wanted to speak to a supervisor. Why?, they asked. Because I had posted something critical of the company and wanted to give them a chance to respond. (Indeed, if Dell wants to send me a response, I'll be glad to post it.) I got a supervisor, and told him the same thing. OK, he said, but before I transfer you to someone, can we try to solve the problem? Sure, I said. I told him the whole story; he figured out whom to call and transfered me to that person without making me wander through more voice-mail jungle; I talked to the person; and finally, finally got a chance to buy a new copy of Windows XP Pro (the software that they knew I had bought with my original system) for a $100 discount off their $309 standard price.

Now I wouldn't have been happy with having to pay an extra $209 even if they'd made it easy for me. But why did it have to take me nearly two hours of telephone time to get to the point where I could actually pay Dell some money?

Finally, I should say that through all this the people I talked to at Dell (when I could talk to them) were always quite polite. I'm sure they wanted to help. It's just that (except for the ones I noted in the update) they and the system in which they were operating were for some reason not actually able to help.

Powerline on the Democratic "War": Over at the Powerline Blog, Scott Johnson offers a very puzzling response to a new report in the National Journal about a CIA pre-war intelligence report on Iraq. Here's an excerpt from the National Journal story:
  Ten days after the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, President Bush was told in a highly classified briefing that the U.S. intelligence community had no evidence linking the Iraqi regime of Saddam Hussein to the attacks and that there was scant credible evidence that Iraq had any significant collaborative ties with Al Qaeda, according to government records and current and former officials with firsthand knowledge of the matter.
  . . .
  One of the more intriguing things that Bush was told during the briefing was that the few credible reports of contacts between Iraq and Al Qaeda involved attempts by Saddam Hussein to monitor the terrorist group. Saddam viewed Al Qaeda as well as other theocratic radical Islamist organizations as a potential threat to his secular regime.
  . . .
  The Senate Intelligence Committee has asked the White House for the CIA assessment, the PDB of September 21, 2001, and dozens of other PDBs as part of the committee's ongoing investigation into whether the Bush administration misrepresented intelligence information in the run-up to war with Iraq. The Bush administration has refused to turn over these documents.
  Maybe this story is a big deal; maybe it's not. It's hard to tell without knowing more details. But I found Scott's response to the report rather surprising: He sees it as evidence that the "Democrats" are waging a "war" against the Bush Administration at the expense of the national interest. He begins his post, titled "The War They Believe In", with the following paragraph:
  The only war the Democrats really have their heart in is the war to undermine the Bush administration. Any incidental damage done to the national interest in furtherance of that war appears in their eyes to be for the greater good.
  Now, for starters, the claim that "Democrats" believe it's "for the greater good" to cause "[a]ny incidental damage to the national interest" in an effort to hurt the Bush Administration is, well, completely absurd. But the more interesting question to me is why Scott sees the National Journal story as evidence of a Democratic "war" on the Bush administration that threatens the national interest. It's not entirely clear from the post, but the argument seems to be based on the possibility that a Democrat leaked classified information to the National Journal. To be sure, Scott doesn't seem to have any evidence that "Democrats" were the source of the story, as opposed to someone who is a "Republican" or even an "Independent." As best I can tell, Democratic involvement is supposed to be self-evident in a circular way: the Democrats are out to destroy Bush, which means that a story critical of Bush was probably the work of Democrats, which proves that the Democrats are out to destroy Bush. Am I missing something, or is that the gist of the connection?
Anna Nicole Smith in the Supreme Court:

Five or ten years ago, what odds would anyone have given me that I would ever write the phrase "Anna Nicole Smith in the Supreme Court"?

Nonetheless, as many are surely aware, the Anna Nicole Smith bankruptcy case is indeed in the Supreme Court.

The excellent Bankruptcy Litigation Blog has promised wall-to-wall coverage of the case. Steve Jakubowski (what is it with we Poles and bankruptcy law?) has a post up on the Amicus brief filed by the United States, supporting Ms. Smith (known in the case as Marshall, after her late husband). I'm sure we all remember the particular facts surrounding Ms. Smith's marriage to the late Mr. Marshall that eventually gave rise to this case.

Nothwithstanding the personal flamboyance of the Petitioner in the case, the issue is actually a very technical one of the scope of the "probate exception" to federal jurisdiction as it applies in bankruptcy proceedings. It is nonetheless quite an interesting case and Steve's bankruptcy litigation blog will be the place to go to follow it.

Weblog Awards 2005:

Nominations are open until Saturday, the 26th; voting starts December 1.

Fair and Balanced?

It is being reported that Fox News is refusing to run an Anti-Alito television ad, claiming it is relying on its lawyer's assessment that the ad is "factually incorrect" in the way that it portrays a particular Alito decision. The story is in the Washington Post, and oddly enough, the same story appears on the Fox News site as well (I assume they just automatically download external news feeds).

Obviously Fox has the right to refuse to run or not run any ad it likes, but this seems awfully questionable to me. Does anyone know whether Fox has ever refused to run a political ad previously on the basis that its claims were "factually incorrect"? The reliance on the "lawyer's advice" seems a bit forced here too--surely Fox doesn't think this crosses the line to slander, does it? I haven't found any more detailed explanation from Fox (such as a press release or something), so if anyone else has found anything like that, please pass it along. At first glance it is hard to rebut the hypothesis that this decision is about politics rather than the accuracy of the ad.

This also reminds me of one of the more unusual experiences I had while at the FTC--a petition was filed by and Common Cause for the FTC to bring an action against Fox on the basis that its slogan "Fair and Balanced" was misleading to consumers, because Fox wasn't really "Fair and Balanced." As you might assume, the complaint was dismissed.


A Comment answers my question by pointing me to this version of the story, which appears to be a longer version of the Washington Post story I linked and contains a tidbit that the Washington Post version of the story omitted. The longer article notes that Fox previously refused to run one ad by the Swift Boat Veterans for Truth and another ad from the RNC for other reasons:
"It's not about ideology, it's about quality and honesty," Irena Briganti, a Fox News spokeswoman, said of the decision to reject the ad.

She noted that Fox had refused to run one ad by Swift Boat Veterans for Truth in which Democratic presidential nominee John Kerry was called a traitor and recently turned down a spot from the Republican National Committee because of content and its use of excerpts from other news programs.


Daniel Chapman provides the analysis of the ad.

Ronaldinho's Warm Up:

For soccer fans out there, if you haven't seen this clip of Ronaldinho that has been making the rounds, check it out. Make sure to watch the second half where he casually bangs the ball off the crossbar and back to himself a couple of times from the top of the box. Amazing.

On the game field, Ronaldinho scored twice last weekend to lead Barca to a 3-0 victory overn Real Madrid to remain atop La Liga and once more yesterday in a 3-1 Champions League victory over Werder Bremen.


Looks like I may have been duped--a Commenter points me to this discussion board on the ad. There is also an accompanying poll. I am aware of the similarly unbelievable and fake LeBron James ad for Poweraid (if I recall correctly). But my first inclination here was to assume that this Nike ad was like the Tiger Woods Nike ad from a few years ago, where he juggles the golf ball on his club and then hits it away--amazing but true (I had originally assumed that commercial was fake, so assuming Ronaldinho is fake, my batting average is admittedly pretty low on these things).

Alito's Bankruptcy Jurisprudence:

Nathalie Martin, the American Bankruptcy Institute's Resident Scholar, has just released an extensive analysis of Judge Alito's bankruptcy jurisprudence. The essay also has some analysis of Alito's statutory interpretation methodology as well.


Tuesday, November 22, 2005

Balkin on the Padilla Indictment: Over at Balkinization, Jack Balkin has an excellent post on the Padilla indictment. An excerpt:
  By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. . . .
  That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.
  You may recall that, following the Hamdi decision last year, the Administration decided not to give Yaser Hamdi a hearing, but instead released Hamdi to Saudi Arabia, extracting in return a surrender of Hamdi's U.S. Citizenship and a promise that he would not sue. Now it has indicted Padilla to avoid facing a simliar rebuff by the U.S. Supreme Court. In both cases, the Administration argued that that it was of the utmost necessity to detain them indefinitely and that it could not give these men the constitutional protections ordinarily afforded criminal defendants without severely damaging national security. These assertions now ring hollow-- Hamdi is free, and Padilla is in the criminal justice system.
Brad Pitt, Trade Expert:

Roger Alford has the details at Opinio Juris.

Scalia on Bush v. Gore:

Via ACSBlog, the NY Post reports on Justice Scalia's comments on the 2000 election litigation:

Speaking at the Time Warner Center last night, Scalia said: "The election was dragged into the courts by the Gore people. We did not go looking for trouble."

But he said the court had to take the case.

"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

Naked Parties:

When I was at Yale, it wasn't like this.

Reflections on the Criminal Procedure Revolution: The Ohio State Journal of Criminal Law has published an excellent symposium issue on the Warren Court's criminal procedure revolution that includes contributions by Yale Kamisar, George Thomas, Donald Dripps, Morgan Cloud, Tracey Meares, and Richard Frase. Thanks to CrimProf Blog for the link.
Academic Freedom Issue:

The Express-Times, a New Jersey newspaper, reports:

The trustees of Warren County Community College, facing national criticism over an e-mail sent by a professor to a student, will meet tonight to discuss personnel issues and student rights with their attorney. . . .

[T]he college has asked another professor to teach three English and writing classes [part-time professor John] Daly was scheduled to lead today. . . .

Daly used his personal e-mail account on Nov. 13 to reply to an e-mail invitation sent by WCCC freshman Rebecca Beach.

Beach, who is not a student of Daly's, founded the college chapter of Young Americans for Freedom, a national conservative activist group. Her group, and the conservative Young America's Foundation, brought retired Lt. Col. Scott Rutter to campus last week to speak about his experiences in Iraq.

In his e-mail to Beach, Daly wrote that he believes the war in Iraq will end only when American soldiers turn their guns on their commanding officers.

A Web site called Inside Higher Ed reported Monday that Daly said he meant that "in the most metaphoric sense." . . .

Beach said she planned to attend the meeting to ask college officials to fire Daly.

"He definitely stepped out of bounds, out of his place as an educator," Beach said. "His threat to expose me till I don't dare show my face on campus created a hostile and uncomfortable working environment for me." . . .

Here are more details about the e-mail, according to Inside Higher Ed:

John Daly, an adjunct instructor in English, sent an e-mail reply in which he said that he would ask students to boycott the lecture, and that “real freedom will come when soldiers in Iraq turn their guns on their superiors and fight for just causes and for people’s needs.”

Daly also criticized Beach’s leadership of a campus chapter of Young America’s Foundation, saying: “I will continue to expose your right-wing, anti-people politics until groups like yours won’t dare show their face on a college campus.” . . .

[Daly] said that because Beach was never one of his students and had sent the e-mail message from her personal e-mail account, he thought she was a Young America’s Foundation organizer, and replied with that in mind. Daly said that if he had known he was writing to a freshman, he would not have changed the political ideas of his note, but would have used a different tone. . . .

Daly sounds like a jerk, but it seems to me that his speech is protected by principles of academic freedom, and quite possibly by the First Amendment. (I distinguish the two, because academic freedom principles are a matter of professional ethics rather than constitutional law, and sometimes extend beyond the minimum standards imposed by the Constitution.)

He's entitled to express his views (however reprehensible) about the propriety of soldiers killing their superiors, and to condemn (even if intemperately) people who put on programs that he thinks express immoral views. Trying to intimidate students with threats of low grades would of course be improper, but simply threatening to urge others to stay away from the talk is permissible — again, in my view quite wrong for a talk such as this one, but permissible.

If someone put on a program that I thought praised those who kill in what I saw as an immoral cause, I think I'd have the right to send e-mails remonstrating with the organizers. Daly is quite wrong on the moral merits of the issue, but academic freedom includes the right to express views on the wrong side of moral controversies as well as on the right side.

The college president got it right, I think, in his first response, when he said that "I firmly believe every employee and student has First Amendment rights, no matter how repugnant I personally find Mr. Daly’s statements"; and he was also right to fight bad speech with good speech, when he "went to the lecture Beach organized and personally welcomed her, the speaker . . . and audience members." It's too bad that the college seems to be backing down from this stand (though I hope that it will ultimately stay with the president's original view).

Finally, those conservatives who call for firing the professor should ask themselves: If academic freedom is eroded, and colleges and universities find it easier to fire professors for saying things that students think "create[] a hostile and uncomfortable working environment," who will be the likely primary victims — left-wing professors or right-wing ones?

UPDATE: Prof. Daly resigned right before the meeting. Thanks to reader Rich Brychcy for the pointer.

Classical Product Placement:

A piece in Reason reports (though without a source citation):

In ancient Rome, major winemaking regions apparently compensated poets such as Martial and Horace to work brand names into their writing.

"Rethinking Civil Rights Lawyering and Politics in the Era Before Brown" Kenneth Mack has an interesting article (.pdf) in the latest issue of the Yale Law Journal on the history of the civil rights movement. From the introduction:
  The Brown v. Board of Education litigation, and the Supreme Court decision that it produced, have cast a long shadow over the legal historiography of the civil rights movement. The Brown litigation has become the lodestar for a "legal liberal" interpretation of civil rights history. Its core elements have become familiar: courts as the primary engines of social transformation; formal conceptual categories such as rights and formal remedies such as school desegregation decrees, as the principal mechanisms for accomplishing that change; and a focus on reforming public institutions (or, in some versions, public and private institutions without much distinction) as a means of transforming the larger society. Legal liberalism, of course, is an ideal type, and scholars have given varying emphases to its core elements in their accounts of civil rights law and politics. Nonetheless, the legal history of civil rights has been written with the Brown decision at its centerpiece, telling the story, in effect, of the antecedents and consequences of Brown. Civil rights history remains, at its core, the story of how African-American communities, and the lawyers and organizations that supported them, struggled to overturn Plessy v. Ferguson, attack de jure segregation, produce the triumph of legal liberalism in Brown, and effectively implement Brown’s antidiscrimination mandate.
  I will argue in this Article that the legal liberal interpretation of civil rights history is a myth —- at least as it applies to the African-American civil rights bar during the period between World War I and II. That is, this interpretation is less an engagement with the complicated civil rights politics that had emerged by the middle of the twentieth century than a historical interpretation that helped scholars, commentators, and civil rights lawyers themselves make sense of American politics in the late twentieth century.
  For responses to Mack's article by Michael Klarman and others, and to participate in a discussion of it, check out The Pocket Part.
"We all do extoll Thee, Thou leader in battle":

A wonderful article by Melanie Kirkpatrick in today's Opinion Journal details the history of the Thanksgiving hymn "We Gather Together." Originally written in Dutch for an already-familiar melody, the hymn was a celebration of the victory of the Dutch (who were Calvinists) at the 1597 cavalry Battle of Turnhout, in their decades-long war for national independence against Catholic Spain. Turnhout was the first time the Dutch had defeated the Spanish in an open-field battle.

John Lothrop Motley, in his 1860 masterpiece History of the United Netherlands, 1597-98 explained the significance of Turnhout:

The true and abiding interest of the battle is derived from is moral effect, from its influence on the people of the Netherlands. And this could scarcely be exaggerated. The nation was electrified, transformed in an instant. Who now should henceforth dare to say that one Spanish fighting-man was equal to five or ten Hollanders? At last the days of Jemmingen and Mooker-heath needed no longer to be remembered by every patriot with a shudder of shame. Here at least in the open field a Spanish army, after in vain refusing a combat and endeavouring to escape, had literally bitten the dust before one fourth of its own number. And this effect was a permanent one. Thenceforth for foreign powers to talk of mediation between the republic and the ancient master, to suggest schemes of reconciliation and of a return to obedience, was to offer gratuitous and trivial insult, and we shall very soon have occasion to mark the simple eloquence with which the thirty-eight Spanish standards of Turnhout, hung up in the old hall of the Hague, were made to reply to the pompous rhetoric of an interfering ambassador.
Because the Dutch won the war, they were able to build in the 17th century the first nation in the modern world which practiced religious tolerance. The religious freedom which we enjoy today in the United States was won for us, in part, by the brave cavalrymen of Prince Maurice's army who risked (and, in some cases, lost) their lives against the larger Spanish force.

Like Passover, Thanksgiving is a time to reflect on the debts of thanks we owe to previous generations which fought (in various ways, including literally) for freedom, and, especially, to God for leading them in their fight. Thanksgiving in 2005 is also an especially appropriate time to reflect on our own contemporary obligations to ensure that the sacred light of religious freedom is never extinguished, as our nation is now engaged in a world-wide war against an enemy determined to destroy that freedom.

"We gather together to ask the Lord's blessing,
He chastens and hastens His will to make known;
The wicked oppressing now cease from distressing,
Sing praises to His name - He forgets not His own.

Beside us to guide us, our God with us joining,
Ordaining, maintaining His kingdom divine,
So from the beginning the fight we were winning;
Thou, Lord, wast at our side, all glory be Thine.

We all do extol Thee, Thou Leader in battle,
And pray that Thou still our defender wilt be.
Let Thy congregation escape tribulation!
Thy name be ever praised! O Lord, make us free!"

Eric Muller is Having A Contest to name his next book.
Harvard Spoofs Harvard A column in The Harvard Law Record makes fun of this survey by The Record of Harvard Law Students ranking law schools in which, surprise, Harvard Law School is ranked #1:
The 2005-06 Record rankings have revealed that Harvard Law School is the best law school in the nation. Because HLS students have a knack for getting the right answers, we are not surprised that HLS has achieved this accomplishment. There is absolutely no way that 104 HLS students can be wrong.

While no ranking system is perfect, HLS should take pride in this prestigious and much deserved honor. We concede that all rankings systems have methodological flaws, but the fact that HLS is ranked #1 should alleviate at least some, if not most, of these concerns. The fact that HLS students have proved that HLS is the greatest American law school demonstrates the scientific validity of our study. . . .
(Hat tip Brian Leiter)
Charles De Gaulle and the Flame of French Resistance:

Today is the anniversary of the 1890 birth of Charles De Gaulle, perhaps the greatest French leader since Charlemagne. His greatest moment came shortly after the French government had surrendered to the Nazis. In a radio broadcast from London, he delivered what would become France's most famous speech, the "Appeal of June 18." The speech concluded:

Believe me, I speak to you with full knowledge of the facts and tell you that nothing is lost for France. The same means that overcame us can bring us to a day of victory. For France is not alone! She is not alone! She is not alone! She has a vast Empire behind her. She can align with the British Empire that holds the sea and continues the fight. She can, like England, use without limit the immense industry of United States.

This war is not limited to the unfortunate territory of our country. This war is not finished by the battle of France. This war is a world-wide war. All the faults, all the delays, all the suffering, do not prevent there to be, in the world, all the necessary means to one day crush our enemies. Vanquished today by mechanical force, we will be able to overcome in the future by a superior mechanical force.

The destiny of the world is here. I, General of Gaulle, currently in London, invite the officers and the French soldiers who are located in British territory or who would come there, with their weapons or without their weapons, I invite the engineers and the special workers of armament industries who are located in British territory or who would come there, to put themselves in contact with me.

Whatever happens, the flame of the French resistance not must not be extinguished and will not be extinguished. Tomorrow, as today, I will speak on Radio London.

A special section of the Charles De Gaulle website provides more information, and the full text, in French. My National Review Online article about the speech is here.

France's current situation is not as terrible as its position on June 17, 1940, but modern France has, in effect, surrendered sovereignty over a significant portion of its cities to Jew-hating totalitarian thugs. I hope that the French of the early 21st century will, as did so many of their parents and grandparents, develop the nerve to resist and to fight back in the current world-wide war against another manifestation of totalitarian Evil.

UPDATE: For those of you looking for more information on French anti-Semitism and the violent "youths" of the French suburbs, here's a start: NY Sun, Jan. 21, 2004 (article by French journalist, "French Muslims of Arab descent are usually religious Muslims and unreconstructed anti-Semites."); NY Times, Nov. 18, 2003 (blog reprint)("Reflecting concern that disaffected Muslim youths are behind anti-Semitic acts in France, President Jacques Chirac on Monday called an emergency high-level meeting to approve measures to stop attacks on Jewish sites."); Jerusalem Center for Public Affairs ("Youth from the immigrant community also have prevented, in many schools, the teaching of the Shoah."). If you want a longer treatment of the subject in French, read the books Les territoires perdus de la République and France, prend garde de perdre ton âme, which detail the direct connection between the rise of anti-Semitism in France and the disaffected "youths."

Of course there will be many people who will see the evidence, and attempt somehow to deny it. Others will try to make excuses for the Jew-haters -- as if attacking Jews were somehow an understandable response to the French unemployment rate. But General De Gaulle recognized, as does Mr. Sarkozy, that the war against the Jews is merely an advanced battle in a war against Western Civilization.

That's a New One on Me:

Reading a book about the history of math, I came across the word surd. Never heard of it before, despite my many years of math education. I probably won't use it, precisely because if it's obscure to a fairly math-savvy person like me, it's probably obscure to others, too. But it's good to know, if only for Boggle purposes.

Jose Padilla Indicted: The Justice Department has filed criminal charges against Jose Padilla. The story is here, and the indictment is here. The timing presumably is no coincidence; the government's response to Padilla's petition for certiorari is due in six days, and the filing of the indictment gives DOJ what I would think is a strong argument that the issues raised are moot and the petition should be denied. Of course, you never know what will happen; the Bush Administration restructured the Guantanamo military tribunals in September in what appeared to be a partial response to the pending Hamdan petition, and the Court granted the petition anyway. For more on the impact of today's indictment, see Lyle Denniston's take over at SCOTUSblog.
Limiting Raich I have been working over the weekend on our brief to the Court of Appeals, Ninth Circuit in Gonzales v. Raich. Yes, the case goes on. The Supreme Court only ruled on the Commerce Clause theory we won on below. This left us on remand to the Ninth Circuit to reassert our claim that the application of the Controlled Substances Act to Angel Raich (and others like her) violated her fundamental rights (and some other nonconstitutional claims as well). When the brief is filed and on-line, I will post a link to it here.

In the meantime, as I previously blogged, the Lewis & Clark Law Review has a superb collection of papers forthcoming in a symposium on Federalism After Gonzales v. Raich. The only problem with reading them is that they are depressing for those who care about federalism and limited government. They pretty persuasively explain why the Raich decision was horrible for federalism. In my Foreword to the issue I decided to examine how Raich could be treated as precedent by a future Court who cared about federalism as much as did the dissenters in the case. It turns out that, upon examination, the Raich decision is remarkably thin and could be easily marginalized in a future case. My thesis is that, if there is a future will, then there is a way. Perhaps the reason why Raich seems so significant now is that it interrupted what appeared to be a momentum in favor of federalism. The question I address is how lasting is the damage if, in a future case not involving medical cannabis, the Court decides to take the enumerated powers scheme seriously again.

My Foreword is entitled "Limiting Raich." It is very short (around 10 pages) and is now posted to SSRN so you can read a pre-edited version here. This is the abstract:
In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.
As Larry Solum likes to say, "download it while it's hot."

Update: The Law Review has now made pre-publication versions of all the articles available on its website here.

Lawyer Sues Airline for Bumping and Wins:

"When an Aviation Lawyer Gets Bumped, the Airline Pays."

Sharp Drop In Consumer Bankruptcy Filings:

From WaPo:

In the month since a new bankruptcy law took effect, the number of Americans filing for protection from their creditors has slowed to a trickle, running at one-tenth the normal number of filings.

Last week, the nation's federal bankruptcy courts received about 3,600 petitions, according to Lundquist Consulting Inc., a California financial research firm that tracks bankruptcy data from the nation's courts. In a usual week, about 30,000 cases are filed.

Of course, nothing has been normal at the bankruptcy courts for the past few months, as the more restrictive law took effect on Oct. 17. In the week before the deadline, the number of cases filed reached 479,430, Lundquist said. The previous week, petitions totaled 124,037.

Obviously one cannot infer anything about the long-term effect of the change in the law from these figures because of the extraordinary intervening effect of the law. But I am surprised that the incentive effect on filings was that large--479,430 to 3,600. Most experts had thought the pre-law week would be about half that figure (in the 200k range) and not such a large drop-off afterwards.


Monday, November 21, 2005

Fallacies Will Happen:

A commenter on the Lileks/Vonnegut thread writes, "Let's see. On the one hand you have Vonnegut, author of Slaughterhouse Five, Player Piano, etc. On the other hand, Lileks, author of, what, oh yeah ... cookbooks... Whose opinion should we value more Dr. Volokh?"

Uh, how about that opinion which is most persuasive? (Yes, I realize that appeals to authority are sometimes called for, for instance when one is figuring out whom to rely on for specialized factual knowledge, but this hardly applies here.)

On the other hand, if the commenter is right, then whose opinion should we value more -- an anonymous poster who doesn't even know what titles I have (not a doctorate), or the esteemed author of Lawsuit, Shmawsuit and Hum a Few Bar Exam?

Are Law Review Articles Getting Shorter,

in response to some top law reviews' call for avoiding the really long pieces? Orin posted about this some months ago, and said: "We'll get an idea of the answer in a year or two, when the new articles come out and readers can see whether they are on average shorter than the articles in recent years."

Here's an early data point: Jean-Gabriel Bankier of Berkeley Electronic Press's ExpressO submission service -- a service that I use routinely, and much like -- reports that, based on "more than 1,000 unique submissions in both 2004 and 2005," the averages were:

2003-69.1 pages
2004-73.3 pages
2005-64.0 pages
There are obviously all sorts of possible confounding factors -- for instance, as time goes on, presumably the user base of ExpressO shifts from the early adopters to people who are more representative of law professors (and some lawyers and law students) more generally; perhaps that helps account for the change in page count. Still, I thought I'd pass it along, for whatever it's worth.

James Lileks on Kurt Vonnegut Here.

My small contribution regarding this quote from Vonnegut:

Vonnegut said it was "sweet and honourable" to die for what you believe in, and rejected the idea that terrorists were motivated by twisted religious beliefs.

"They are dying for their own self-respect," he said. "It's a terrible thing to deprive someone of their self-respect. It's like your culture is nothing, your race is nothing, you're nothing."

How exactly is killing innocent people supposed to enhance your "self-respect"? If it does, should we think twice about whether "self-respect" is such a wonderful thing? And if this judgment that self-respect demands the slaughtering of innocents stems from your affection for "your culture" -- and I stress that this is a big "if," which reflects an assumption that Vonnegut had made -- what does that say about the merits of your culture?

Looking for a Good Holiday Present for a Law Student or Soon-To-Be-Law-Student?

Just thought I'd mention again that my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review could do the job — plus, you can get it personally signed and inscribed, if you'd like. If you follow the link, you'll also see some unsolicited compliments from readers, but I thought I'd also throw in some others that have arrived more recently:

"As Co-Directors of Faculty Development for our law school and former faculty advisors to our law review, we have become familiar with your excellent book, Academic Legal Writing, now in its second edition. We routinely recommend it to students working for our school’s journals, and now in our new roles as Co-Directors of Faculty Development, we find we are recommending it to our colleagues."
-- Anne M. Enquist & John Mitchell, Seattle University School of Law

"Outstanding book on student writing; simply excellent."
-- Art LaFrance, Professor of Law and former Dean, Lewis & Clark Law School

"[T]hank you for your book on academic legal writing. It was has been very beneficial this past year during the writing and submitting of my first post-graduation article. I submitted the article . . . this past fall and I made it to final consideration at [a top 15 primary journal and a top 30 primary journal]. [A scholar] is planning to cite the paper in his forthcoming [article at a top 5 law review], and [another scholar] invited me to present the paper next spring at [another top 5 law school], so I am planning to resubmit the article in March. But regardless, I know that my article (especially the introduction) and my understanding of the submission process benefitted greatly from your book."
-- Dan Kelly, recent law school graduate

"[T]hank you again for writing Academic Legal Writing. . . . [In a later message, responding to my request for permission to quote his original message:] I think the book is great . . . . I sent my [student competition] paper to a professor who co-wrote an amicus brief to the Supremes in [the relevant Supreme Court case] and he . . . offered to co-author a paper with me on the subject. (And, recently, [another professor] has asked me to be his research assistant.) I absolutely credit your book and have recommended it to everyone I know engaged in any academic legal writing task. Let me know if I can be of any further small assistance."
-- Bart Motes, law student

"I've been an RA for [a professor] since last year and he highly recommends it to his students. I should thank you for autographing my copy last year when my classmates bought it as a birthday gift. I'm also very happy to report I have since won 1st place in the ABA James Boskey ADR Writing Competition and been invited to publish [in three journals].
-- Nivine Zakhari, law student

"I found your book extremely helpful during law school, so now that I've graduated I want to give it as a gift to two of my friends, entering 1Ls."
-- Joe Gratz, recent law school graduate.

There's a Reason That We Put Breaks Between Words:

Check out,,,, and Thanks to John Morris for finding these.

Imagine That -- We're Trying To Execute a Nobel Peace/Literature Prize Nominee!

Many stories about Stanley "Tookie" Williams, the co-founder of the Crips gang who was convicted of having "shot and killed four people during two robberies in Los Angeles" note that he has been nominated for the Nobel Peace Prize and the Nobel Prize in Literature (for writing children's books warning children against becoming gang members). Here's an AP story: "He has received several Nobel Prize nominations . . . ." An L.A. Times story: "He later was nominated repeatedly for the Nobel Prize . . . ." An NPR story from Nov. 21, 2005: "For his anti-gang work, Williams has received multiple nominations for the Nobel Prize." An L.A. Times story about the daughter of one of his victims:

Then four years ago, she said, she learned that Williams was alive and had been nominated for a Nobel Prize, and "it literally hit me like a ton of bricks."

"It literally almost destroyed my life because of my own anger," she said. "I was just flabbergasted. How could the man who co-founded the Crips be nominated for the Nobel Peace Prize. What in the world?"

I have an answer to that question: Any social science, history, philosophy, law, and theology professor, judge, or legislator in any country (plus a few others) can nominate anyone for a Nobel Peace Prize (past nominees, just in 1901-1951, included Hitler, Stalin, and Molotov). Any literature or linguistics professor can nominate anyone for a Nobel Prize in Literature. Naturally, many nominees have real merit; but that someone has been nominated by one of likely hundreds of thousands of potential nominees is little evidence of such merit. And this is especially so when that someone is a source of controversy, when it may seem that nominating him may prevent his being executed -- something that may understandably sway the judgment of nominators who are deeply opposed to the death penalty, and who might see the need to save a life and to make an anti-death-penalty statement as more important than the need to make an impartial evaluation of the person's net contribution to peace or the quality of his literary works.

And in any event, wouldn't it have been helpful -- both to listeners and to the victim's daughter -- if the stories that mentioned Williams' nominations had stressed how unselective the nomination process really is?

(Incidentally, whether a person's sincere contrition, and post-crime good deeds, should lead to clemency is a difficult question; I don't mean to opine on it here. My point is simply that a convicted murderer's having been nominated for the Nobel Prize sheds little light on that question.)

Kelo Homeowners Still There:

The New York Times has an update on the stalled eviction of the Kelo homeowners.


Tom Blumer has more on the Times story here as well as commentary by the Scott Bullock of the Institute for Justice here.

Piereson on College Giving:

Jim Pierson of the late Olin Foundation has an interesting column today on the potential perils of unrestricted giving to colleges and universities and the growing movement by donors to prevent misuse of their funds.

Dilbert Blog:

I just learned from Joe Malchow that Scott Adams now has a blog, known appropriately enough as Dilbert Blog. Joe points to this post explaining why a police officer is shown in one Dilbert strip firing a donut at a perp, rather than a gun.


I deleted the second paragraph of the original post in order to avoid spurring a debate that goes beyond what I was trying to raise here, and one that has been discussed extensively elsewhere. I really didn't want to open that can of worms here at this time, and so have revised the post accordingly and disabled comments.


Since some have asked, I want to emphasize that truly the only reason I pulled down the earlier post was because I didn't want to open that can of worms. Those who doubt the sincerity of this explanation clearly have not been down this particular road with this particular person before. For anyone who has doubts why I would have second thoughts about going down that particular path, I can simply point you to Scott Adams's post to which I originally linked. On reflection, I quickly realized that I would sooner bang myself in the head with a ball peen hammer repeatedly than to go through a similarly exasperating experience again. One need simply read his comment to my withdrawn post for a reminder of why I soon recognized the pointlessness of trying to engage in any sort of intellectual discussion. My empathy for Scott Adams, new to the blogosphere, overwhelmed my caution not to go down that path. Once I realized what I had done, I chose to modify, and then withdraw the post. I had a brief lapse of judgment, but I promise it will not happen again.

ID's Threat to Science and Religion:

It is unfortunate that so many conservative thinkers fall have fallen for the idea that Intelligent Design (or "ID") qualifies as science. ID may well be true -- that is, there may well be a God or other designer who created the cosmos and set the universe in motion -- but that does not mean it is science. ID offers no testable hypotheses or anything else that can be validated empirically. While some works of ID may be interesting conjecture or provocative philosophical exercises, they they do not entail rigorous applications of the scientific method.

In Friday's column, Charles Krauthammer makes this point, and challenges the effort to inject ID into scientific education.

Intelligent design may be interesting as theology, but as science it is a fraud. It is a self-enclosed, tautological "theory" whose only holding is that when there are gaps in some area of scientific knowledge -- in this case, evolution -- they are to be filled by God. It is a "theory" that admits that evolution and natural selection explain such things as the development of drug resistance in bacteria and other such evolutionary changes within species but also says that every once in a while God steps into this world of constant and accumulating change and says, "I think I'll make me a lemur today." A "theory" that violates the most basic requirement of anything pretending to be science -- that it be empirically disprovable. How does one empirically disprove the proposition that God was behind the lemur, or evolution -- or behind the motion of the tides or the "strong force" that holds the atom together?

In order to justify the farce that intelligent design is science, Kansas had to corrupt the very definition of science, dropping the phrase " natural explanations for what we observe in the world around us," thus unmistakably implying -- by fiat of definition, no less -- that the supernatural is an integral part of science. This is an insult both to religion and science.

Krauthammer further argues that the question whether God designed the universe or is the ultimate force behind the laws of the universe is a question for religion, not science -- and that conflating the two threatens both.
The relentless attempt to confuse the two by teaching warmed-over creationism as science can only bring ridicule to religion, gratuitously discrediting a great human endeavor and our deepest source of wisdom precisely about those questions -- arguably, the most important questions in life -- that lie beyond the material.
Evolution is not a threat to religious belief, nor should religious truth threaten science. Once school boards recognize this fact, and stop trying to inject one into the other, both religion and science will be better off.


Sunday, November 20, 2005

A Matter of Taste:

The Great Latke-Hamantash Debate from University of Chicago Press, recounting a debate at University of Chicago going back sixty years. But what of sufganiot, a traditional mizrahi/sephardic treat? This whole debate strikes me as Eurocentric.

The Generative Internet: Jon Zittrain has posted a new article, The Generative Internet, that is forthcoming in the Harvard Law Review. Zittrain argues that a "cybersecurity crisis" is around the corner, and that its arrival will bring increased focus on security that will threaten Internet innovation. He contends that we need to be ready to protect values of innovation in the unfolding world of a "locked-down Internet," and offers some general strategies for doing so. For example, Zittrain suggests that we might have "two Internets," one for security and the other for experimentation. Alternatively, we could stick with one Internet and "creat[e] rough mechanisms for accountability for those who wish to introduce software to the world and for individuals who put that software to certain uses, while giving reason for the maintainers of generative technologies — the Internet architects, service providers, and operating system manufacturers — to keep them open[.]"

  The difficulty with the argument, I think, is that it hinges on the prediction that a particular type of "cybersecurity crisis" is unfolding. We don't know if such a crisis is coming or what it might look like, which makes it somewhat difficult to map out possible responses now. In any event, if you're interested in computer security or Internet design, check out the paper.