Saturday, December 3, 2005

Appellate Decisions Blog: For a daily review of interesting federal court of appeals cases, check out the 5-week old blog Decision of the Day, by the pseudonymous "Robert Loblaw." Thanks to Michael Cernovich for the recommendation.
"Liberalizing the Military":

The internal culture of the military is something I don't fully understand. I haven't served, and the relationships seem so different from my day to day life that I don't really have an intuitive grasp on how things work. With that disclaimer in mind, from a policy perspective (leaving aside the constitutional issues for a moment) this rationale as expressed by Nathaniel Fick, a former Marine captain and author of a book on his war experiences, called One Bullet Away, has always seemed to make some sense to me:

Mr. Fick majored in classics at Dartmouth, and he speaks about being motivated to join the Marines by a talk given by Tom Ricks, a Washington Post reporter who covers the military. Fick says that Ricks was an advocate for ROTC on campus during his talk, and a professor challenged him, saying if you bring the military onto our campus you'll screw up our peaceful nature and tolerance.

Ricks replied, no, what will happen is that you will liberalize the military. You will influence the military and it will influence you.

I have only begun reading Fick's book, but I have seen him interviewed on tv, and he seems to agree with this claim (which is one of the reasons he starts his book with it, I think). It seems to me that this "liberalizing" effect on the military is even more valuable today, given the extensive civilian responsibilities that modern soldiers undertake. And the impressive performance of the JAG Corps in dealing with the Abu Ghraib fiasco is also suggestive of the influence that good people can have on the military.

As I said, I don't have any personal experience with whether this is an accurate claim, but it seems intuitively plausible to me. I would be interested in hearing from any readers out there who have served in the military as to whether you find the claim "You will influence the military and it will influence you" actually works out that way in practice, especially for those who serve as officers (presumably the relevant category for ROTC and JAG questions). I'm not so much interested in the constitutional questions here (which have been hashed over extensively here and elsewhere this week), but hearing personal experiences about the culture of the military and the opportunities that individuals may have to influence that culture.


Several of the Commenters raise the good point that it is not exactly clear what the term "liberalize" here means. My understanding is that those using the term (such as in Fick's story) do not intend it to mean politically or ideologically liberal (thus suggesting that the military is somehow reactionary in nature) but rather something more along the lines of what is meant in the term of "liberal education" or "liberal arts education." I think they have in mind someone who is the product of a broad and well-rounded education in the libearl arts & sciences in a predominantly civilian college or university. Tolerance, thoughtfulness, and independent thinking, is my impression of the virtues that are being sought here. At least that is what I have in mind when I think of the term in this context.

As one of the Comments puts it:

P.S. "Liberal" in this context is NOT describing a political viewpoint, but rather a "liberal" education, as one grounded in the liberal arts and sciences that teaches one to think, as opposed to say a vocational education, that teaches one to do a job.


A couple of interesting examples of the idea, such as Pershing and Caesar, are discussed here.


Friday, December 2, 2005

The Reverse Mussolini Fallacy, Again:

I've at times complained about the Reverse Mussolini Fallacy. The Mussolini Fallacy is believing that, because Mussolini made the trains run on time (if he did), that excuses his other acts. The Reverse Mussolini Fallacy is believing that, because Mussolini made the trains run on time, making the trains run on time is bad.

A commenter to an earlier post writes:

Boston was one of the first, if not THE first, city to adopt the language suggested by privately produced DHS guides: "If you see something, say something." Apparently the comparison to Maoist China or Stalinist Russia does not worry these people. Reporting crimes is one thing. Reporting suspicions is quite another.

It's true that totalitarian regimes rely on citizens to report misconduct by their fellow citizens. But so must democratic and liberal regimes: The police can't be everywhere (and shouldn't be everywhere), so they rely on citizens to alert them about what they should investigate.

Nor is the "reporting crimes / reporting suspicions" distinction sensible here. Sometimes -- often -- a citizen observes something that isn't clearly a crime, but that seems suspicious, which is to say that might be evidence of a crime. You might hear screaming from your neighbor's house, but not be sure whether there was a crime or just a nasty argument. You might see someone pull a kicking, screaming child into a car; is that a kidnapping or just someone dealing with a tantrum? You might see someone leave a backpack in a subway; could that be a bomb, or did someone just forget his stuff? You often can't investigate further on your own -- it may be too risky, or outside your competence. Of course you should call the police.

Now there may well be times when you shouldn't call the police. The most obvious example is if the offense shouldn't be a crime in the first instance (if you tattled on a neighbor for saying anti-government things in Soviet Russia, that would be bad even if the statements were the crime, so you were "reporting [a] crime[]" rather than a "suspicion[]"), or if you think the punishment is likely to be grossly disproportionate to the crime. Sometimes demands of loyalty to friends or family may outweigh the demands of preventing harm to possible future victims of those friends or family; that's a really tough call, but I do suspect that -- rightly or wrongly -- I wouldn't turn in a family member for petty shoplifting. If you think that the police are bad enough, you might not want to help them at least unless the crime is very severe. And finally, if you have only the vaguest of suspicions, the possible crime isn't very severe, and you're afraid that the costs of bringing in the police (the hassle to the likely innocent target, plus the waste of time for everyone) exceed the benefits (the possibility that the target is indeed guilty), that might be reason not to call.

But the distinction can't, I think, be simply reporting crimes vs. reporting suspicions; nor can I fault an "If you see something, say something" program, at least unless the program is chiefly aimed at genuinely innocent conduct. (Critics of the war on drugs may fault such programs on this latter ground, but that's a separate argument from the one the commenter was making.) Helping the police catch criminals is generally good, and urging the public to do this is good, too. It becomes bad chiefly to the extent that the law being enforced is a bad law; and if that's so, then that should be the target of our argument, not the attempt to promote citizen reporting of crimes as such.

Related Posts (on one page):

  1. The Reverse Mussolini Fallacy, Again:
  2. Mayor Vows To Go Into Stores To Seize T-Shirts:
Mayor Vows To Go Into Stores To Seize T-Shirts:

The Boston Herald reports:

Mayor Thomas M. Menino is cracking down on the Hub’s hard-core hoodlums and even the taunting “Stop Snitchin’ ” T-shirts they wear . . . .

Menino vowed to combat the soaring crime rate. Among the steps: Sending city Inspectional Services Division officials to seize T-shirts emblazoned with the “Stop Snitchin’ ” message.

“It’s wrong,” Menino said. “We are going into every retail store that sells the shirts and remove them.”

The Herald reported the shirts were worn by the mother of a reputed gang member earlier this year during his trial for a shooting that killed 10-year-old Trina Persad.

The mayor did not say what legal authority ISD would cite in seizing the shirts from retailers. . . .

The T-shirts -- which sometimes bear a logo with an octagonal stop sign riddled with bullets -- have surfaced in Boston and cities across the nation including Baltimore and Pittsburg. Officials say the shirts are intended to intimidate witnesses to crime. Store owners say the shirts are a harmless novelty. . . .

Under certain circumstances, wearing a "Stop Snitchin" T-shirt may be intended to threaten certain people with violence, and may be likely to convey such a message; such action may properly be punished (given a properly worded statute), given the threat exception to the First Amendment. Also, court authorities may bar such shirts from being worn in courtrooms, which are not public fora, and which the government as landlord may impose substantial speech restrictions.

But the government may not ban the sale of such T-shirts -- which can of course be used to send nonthreatening (even if repugnant) messages, such as messages of solidarity with thugs, messages that thug culture is cool, or messages that reporting crimes to the police is wrong -- just because of the possibility that the T-shirts may be used to send unprotected threats. And the government certainly may not just seize the shirts without some such legal ban in place (as the ACLU points out, such a seizure would violate the Fourth Amendment and the Due Process Clause as well as the First Amendment). Just as cross-burning is constitutionally protected, unless it's done with the intent to intimidate (and seems likely to achieve this result), so is the sale and wearing of the T-shirts.

Thanks to reader Rich Carreiro for the pointer.

Related Posts (on one page):

  1. The Reverse Mussolini Fallacy, Again:
  2. Mayor Vows To Go Into Stores To Seize T-Shirts:
Soda Suit:

The Washington Post reports that the long-anticipated lawsuit against soft drink manufacturers for contributing to children's obesity is expected to be filed in the near future.

Accroding to the article, the target is vending machines in schools and the legal theory is one of an "attractive nuisance." The suit is expected to be filed in Massachusetts as an "unfair practice" under that state's unusually liberal consumer protection law. According to Victor Schwartz, "Massachusetts is one of the few states in the country where plaintiffs do not have to demonstrate actual damage in a consumer-protection case -- just that a violation occurred."

The lawyers behind the suit are the ones who fashioned the successful tobacco litigation. Although the the defendants and the legal theory have been identified, the article suggests that the lawyers don't have a plaintiff yet:

Daynard said that while the legal theory is ready, the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case. "It's taking us longer than we expected," he said.

Kansas Is Flatter Than a Pancake:

Science Proves It. Thanks to commenter Kim Scarborough for the pointer.

"Taking Millions from Bay Area Newspapers and Causing Layoffs That Adversely Affect Coverage":

That's how a San Francisco Weekly article describe It's a funny locution — "taking millions." The problem, of course, is that online classified advertising is proving to be more convenient than newspaper advertisers both for advertisers and for buyers. Therefore, advertisers are going to sites like; therefore, newspapers are getting less money; therefore, Craiglist is "taking millions" from the newspapers.

Now I should say that there is an underlying problem here; before the Internet, classified advertising funded newspapers' news departments, and the news departments in turn increased circulation and thus helped the advertisers. As advertising shifts to the Internet, news departments will have less funding. This, of course, was well-known; I wrote about it my 1995 Cheap Speech article, and I surely wasn't the first to observe it:

[N]ewspapers will lose a vast amount of classified ad revenue. This revenue accounted for forty percent of total newspaper ad revenue in the late 1980's; one commentator projects it will reach sixty percent by 2000. But paper classifieds are far inferior, for both buyers and sellers, to electronic classifieds that are untied to any newspaper.

A database of, say, all apartments for rent in the city would be much easier to search through than a newspaper classified section: . . . [T]he renter could ask for an instant list of all the one-bedroom apartments renting for less than $850 per month within three miles of UCLA, perhaps plus apartments that are a bit cheaper but a bit further, or more expensive but closer. The list should be more complete, because the information will be easier and cheaper to post. And the list should be timelier — the information will become available as soon as the landlord posts it, and can be removed as soon as the apartment is rented. Electronic classifieds are better on all counts than paper ones, and newspapers will have to adjust to a huge revenue loss when the paper classifieds stop coming in. . . .

[Footnote:] Newspapers can, of course, enter the classified market themselves. But the newspapers won't have any substantial edge over other service providers in this field. And even if a newspaper comes up with a fabulously profitable electronic classified service, the stockholders will probably be hesitant to use this service to subsidize a money-losing print operation.

The Internet, of course, makes publishing cheaper, so maybe an all-online non-classified-ad-supported site can fill some of the gaps that are produced as print newspapers have to cut back on their news departments. Nonetheless, it's possible that this business model will be still bring in less money to support news departments than the pre-Internet newspaper model did; worrying about the effect on newsgathering is thus quite legitimate.

But it seems to me much less sensible to cast this in terms of a more customer-pleasing business "taking millions" from you. The reality is that someone else is doing a much better job of serving the public than print classifieds ads are. Deal with that, and don't bellyache about how that someone else is a bad guy because he's outcompeting you and preventing you from making money (even if you hope to use that money for behavior that benefits the public).

Thanks to InstaPundit for the pointer; he collects more comments on the story, including a reaction from the story's author.

UPDATE: Reader Aaron C. points, in the comments, to Frederic Bastiat's Candlemaker's Petition:

A PETITION From the Manufacturers of Candles, Tapers, Lanterns, sticks, Street Lamps, Snuffers, and Extinguishers, and from Producers of Tallow, Oil, Resin, Alcohol, and Generally of Everything Connected with Lighting.

To the Honourable Members of the Chamber of Deputies.

Gentlemen: . . .

We are suffering from the ruinous competition of a rival who apparently works under conditions so far superior to our own for the production of light that he is flooding the domestic market with it at an incredibly low price; for the moment he appears, our sales cease, all the consumers turn to him, and a branch of French industry whose ramifications are innumerable is all at once reduced to complete stagnation. This rival, which is none other than the sun, is waging war on us so mercilessly we suspect he is being stirred up against us by perfidious Albion (excellent diplomacy nowadays!), particularly because he has for that haughty island a respect that he does not show for us.

The rest of the Petition is much worth reading, too, and, speaking of the Sun, reminds us that there is nothing new under it.

The Sad State of Debate on University Campuses, Part MMMCDLXXVIII:

1. The Cal State Long Beach Daily 49er reports:

Ripped flyers hung off of the department of women’s studies door, . . . and derogatory statements written on those flyers . . . .

An “I Love Feminism” flyer posted on the office door had, “You should be ashamed of yourself” written below it. A flag poster also posted on the door had, “Liberalism is the path to socialism which is the path to communism. Be a good American and think Republican!” written on it. . . .

Other statements like “Support a Democratic Iraq” and “See beyond your ignorance” were written on other flyers posted on the office door. . . .

Gee, you eloquent young conservatives (I assume this is on-the-level vandalism, in part because I'd think that any hoax vandalism would be a titch more aggressive-sounding), any ideas on better ways — both more ethical and more persuasive ways — to express your views than defacing others' views?

2. But wait, it gets better: Here's a response, printed in the same newspaper:

Someone vandalized the women's studies department in the early morning hours of Nov. 15. One example was "You should be ashamed of yourself," written on a feminism poster.

To scribble on the posters of a department that stands for equal rights, free speech and ending discrimination on the basis of sex is misguided and hateful. In the attempt to voice their opinions, the vandals hoped to quiet an entire department. . . .

There are many sides to every argument, but by destroying the property of a liberal department to fill it with messages of freedom and democracy, it ultimately supports the utter removal of our right as citizens to disagree with one another. . . .

Unless you want to live a cookie-cutter, apathetic, lemming-like existence, grow some and spark a real debate instead of acting childish and using a blue Crayola marker to scribble your uninformed, useless hate speech on our posters.

OK, I'm with you on the destruction of property, but if "You should be ashamed of yourself" is "hate speech," haven't we defined "hate speech" down quite a bit? Also, why exactly should it matter whether the department stands for equal rights, free speech, and ending discrimination, or — as other departments do — for sound mathematical knowledge or for more reading of Shakespeare?

Yeah, I know it's just a college, and these are just college students. Still, I've been hoping for something a little better.

[Puzzleblogger Kevan Choset, December 2, 2005 at 11:21am] Trackbacks
Words in Common:

What do these words have in common?

  • blunt, frank, kind, stark, young

For more words that share this property, click below, but don't post an answer before 3PM Eastern Time unless you got it off the first bunch.



And more:


And more:


Is 2254(d)(1) of AEDPA Unconstitutional?: Judge Merritt thinks so, see his dissent today (starting at page 14), in an opinion that Judge Reinhardt can pop into what I assume will be his forthcoming opinion in Irons v. Carey, which I assume will then turn into the opinion below in a very interesting case for OT06, a sort of Felker v. Turpin revisited.

  (My apologies if this post is too inside baseball; I assume that the only readers who care are the readers who understand.) Hat tip: Appellate Law & Practice.

Thursday, December 1, 2005

Posner Slams the BIA:

Just wanted to echo Orin's post, and urge to read Posner's opinion. This isn't some liberal judge on the Ninth Circuit slamming the immigration bureaucracy -- it's a moderate conservative, citing many opinions from the Seventh Circuit (which has a reputation as being pretty sane). When he starts the opinion with, "In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits," it seems to me that people should pay attention.

Posner Slams the BIA: Check out this remarkable opinion by Judge Posner yesterday harshly criticizing the Board of Immigration Appeals for its poor quality work. Noting the high reversal rates of the BIA in the Courts of Appeals, Posner writes:
  This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice. Whether this is due to resource constraints or to other circumstances beyond the Board's and the Immigration Court's control, we do not know, though we note that the problem is not of recent origin. All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals.
  (I have omitted citations, because, well, this is a Posner opinion.) And here is the conclusion:
  The Board's action is intelligible, but not justifiable, only as punishment for a lawyer's mistaken belief that the filing of the I-485 form (which had already been filed!) would be premature. We are not required to permit Benslimane to be ground to bits in the bureaucratic mill against the will of Congress. And anyway punishment was not the rationale of the Board's action, which appears to have been completely arbitrary.
  The order of removal is vacated . . .
  Ouch. Thanks to Quaker and Steve Vladeck for the link.

  UPDATE: Oh, and don't miss the audio of the oral argument, available here, especially starting around the 15 minute mark.
Apples and Oranges:

A recent Corner post quotes an e-mail that says that comparing Bush's and Churchill's rhetoric "is [comparing] apples and oranges," presumably meaning "comparing two things that can't properly be compared."

But (as I noted before), we compare apples and oranges all the time! We compare them by price, by how much we like the taste, by likely sweetness and ripeness, by how well they'll go in a tasty fruit cocktail, and so on. In fact, every time we go to the store and buy apples rather than oranges — or vice versa — we are necessarily (if implicitly) comparing apples and oranges. You too have compared apples and oranges, and have been quite right to do so.

Seems to me that the phrase should instead reflect two items that really are radically dissimilar — say, "comparing apples and democracy," or "comparing oranges and the multiplication table." Now those comparisons really would be hard to conduct.

UPDATE: Reader Q the Enchanter says he often uses "apples and orangutans."

Levinson and Balkin on the Politics of Roe: Over at the Legal Affairs Debate Club, Sandy Levinson and Jack Balkin are debating "Should Liberals Stop Defending Roe?"
Comments Related to the Questions Posted Below:

This is a placeholder post for comments on the questions I posted below. Please do not use it to answer those questions, or to criticize others’ answers to those questions.

A Question for Our Irreligious Readers:

Below, I asked a subset of our religious readers a question that I think many irreligious readers might want to know the answer to. Now, I’d like to ask our irreligious readers a question that I think many religious readers might want to know the answer to. Again, I ask this out of respect to for your views, not disrespect: I want people on the other side to understand your views.

Let me therefore ask a question of those irreligious readers that believe that certain things — murder, rape, robbery, and more — are morally wrong. Irreligious people, like religious people, often feel this very strongly, and are willing both to act and to refrain from acting based on these judgments. They might, for instance, refuse to do certain things that are practically advantageous to them because they think they would be wrong; or they may do certain things that are risky or costly because they think that these actions are needed to prevent wrong. I’d love to hear your thoughts, if you fall in the category given above. I have also asked a related question of a subset of my religious readers, so don’t feel like I’m only picking on one side here.

Here’s the question: Many of your beliefs might flow logically (perhaps not syllogistically, but using logical argument) from other beliefs. But at some point, you must reach what one might call a moral axiom that you can’t logically demonstrate. You doubtless find this axiom appealing. Yet why do you accept it?

There are, after all, many rivals. Just to list a few: We should seek the greatest good for the greatest number of humans; the greatest good for the greatest number of my fellow citizens of a certain country; the greatest good for me and my family; the greatest good for me; the greatest good for all sentient species on the Earth; the greatest good for humanity in all future generations. We should not initiate force or fraud against others; we should not engage in force or fraud against others even if they initiate it; we should not initiate force but we may initiate fraud; “others” should only include humans; “others” should include all animals that can feel pain; “others” should include all animals that have more than some threshold of intelligence. We should do only those things that we would be willing to have all others do; some of us should do whatever we want to do, because we’re superior to others; we should do those things that are best for us, since others are going to do the same in any event.

Now if you believed that there was a God who created the world, who was concerned with human affairs, who in some measure controlled access to a happy afterlife, and who made his will known by delivering a book that chronicled both his prescriptions and a list of miracles that he himself had performed, you might choose as an axiom “Do what God tells me to do.” This itself wouldn’t be an open and shut argument; but I think that, if the factual assertions behind it were accurate, it would have substantial plausibility.

But you don’t believe this. Why then do you order your life around some particular moral axiom that you can’t logically support, especially when disregarding this axiom could save you a lot of hassle? Or do you think that you can indeed logically support your choice of axiom, without calling on some other axioms that you can’t logically support — and, if so, how?

In any event, I’d love to hear your thoughts, if you fall in the category given above. I also ask below a related question of my religious readers, so don’t feel like I’m only picking on one side here.

Note, though, an important rule applicable only to the comments to this post and its mate: I want only comments that try to answer these questions, not those that argue against the answers, or that criticize the answers, even politely. I do reserve for myself the blogger’s prerogative of adding updates that clarify the question or ask for clarifications to the answers. But because I want people to feel as free as possible to express their deeply held views, in this instance I would rather that they do so without risk of criticism from fellow commenters.

Remember: The point of this thread is so that religious people are more able to understand the other side, not so that we can have a debate on this question.

Those who really want to comment on the questions generally, rather than to answer them (or to criticize the answers), may do so in the comments to this placeholder post.

A Question for Our Religious Readers:

My sense, from reading comments and reader e-mail, is that this blog has many articulate and thoughtful readers who are pretty deeply religious, and many who are pretty deeply irreligious. I wonder whether this might make room for a good opportunity for each side to see what the other thinks.

I’m not expecting or intending to convert anyone in either direction — just to enlighten people about others’ world views, by asking each side to explain themselves about something that I think the other side really is curious about. I have many friends, both deeply religious and deeply irreligious, whom I much respect. Precisely because I respect people on both sides of this question, I think it’s helpful for people on the other side to understand more about how intelligent and moral people on the other side come to the conclusions they do. I am not claiming that the questions I will pose are unanswerable; in fact, I’m asking you to answer them, so the other side can understand why you think what you think.

Let me start by asking a question of those religious readers who might roughly be described as “believing in miracles”: those who believe that in the last (say) 10,000 years God (or some divine power) has done things that don’t normally occur in our experience (or in our experience as aided with various observational tools), such as brought about a resurrection, literally spoken from a burning bush, brought a literal angel to visit someone, and the like. If you don’t believe in this — if, for instance, you only believe in a creator-God who doesn’t intervene in human affairs, or you believe that God acts only through normal behavior (for instance, by inspiring human beings to do certain things) — then the question is not for you.

Here’s the question: I suspect that you are a normally and healthily skeptical person. If someone claims that he has seen something that doesn’t normally occur in our experience — for instance, seen a werewolf, a ghost, or even an extraterrestrial — you’re probably pretty skeptical. If the claim is based on hearsay, for instance when someone says that there were werewolves in the Middle Ages because there are various books that report on their existence, you’re probably even more skeptical. And that’s so even if the claims are religious. There are, after all, lots of religions other than your own that make their own factual claims, whether about an angel visiting Joseph Smith, about the actions of Hindu gods, about an alien named Xenu, etc. (I am not claiming that these religions are morally or theologically equivalent, only giving them all as examples of religions that make factual assertions about which members of other religions are skeptical.)

Why then do you believe the factual assertions that form the basis of your religion? If, for instance, you wouldn’t believe a claim that Joe Schmoe rose from the dead, why do you believe that Jesus Christ rose from the dead? My sense is that irreligious people really do want to know this.

Before you answer this in the comments, let me point to a couple of answers that I think are incomplete, and that would at least require more elaboration.

(1) The argument by design: Even if the complexity of the world suggests that some intelligent being created it (a separate matter from the one I’m describing here), this doesn’t tell us whether this being continues to perform extraordinary actions, much less whether he has performed particular extraordinary actions.

(2) A scripture’s consistency with certain historical accounts: Even if there is historical evidence for the nonextraordinary claims mentioned in a holy book (e.g., historical evidence that a religious figure named Jesus Christ existed roughly 2000 years ago in Judaea), this doesn’t tell us about the validity of the extraordinary claims mentioned in that book. We’re all familiar with accounts that combine factually accurate statements with fanciful ones; many ancient historical works, for instance, fall in that category.

(3) Inspiration: Some religious people report that they feel in their hearts that certain things are true, even if they can’t prove them. (In fact, both religious people and irreligious people tend to take this view about many moral issues; here, though, the question relates to factual events, not moral judgments.) Yet we all know that these feelings can often be mistaken: It’s natural, for instance, for people to feel strongly that the Sun revolves around the Earth, and many people did believe that for millennia, yet they were mistaken. And that was something consistent with what appears from our everyday experience.

Why should we give credence to factual beliefs that are inconsistent with our everyday experience? Even if we strongly believe them, shouldn’t we be skeptical about them? Again, note that millions of other people feel in their hearts the truth of certain other religious factual claims. For many such claims, it can’t be that both you and they are right. Why doesn’t that lead you at least to agnosticism on the question?

(4) Faith: Likewise, some people say that they have faith in their religion’s factual assertions, and that the whole point is to take them on faith. Yet I take it that you don’t take on faith most other people’s assertions about supernatural phenomena, whether secular (werewolves) or religious (claims of other religions). You probably even think less of people who are too willing to take on faith claims about extraterrestrials, vampires, reincarnation, and the like. Why do you take on faith the religious claims that you do accept?

(5) The social and moral value of religiosity: Many people argue that religious belief, including belief in miracles, is important to make people more moral, and to help society survive. But even if that’s so, that doesn’t seem like an argument in favor of the belief’s being factually correct, rather than useful.

In any event, I’d love to hear your thoughts, if you fall in the categories given above. I also ask above a related question of my irreligious readers, so don’t feel like I’m only picking on one side here.

Note, though, an important rule applicable only to the comments to this post and its mate: I want only comments that try to answer these questions, not those that argue against the answers, or that criticize the answers, even politely. I do reserve for myself the blogger’s prerogative of adding updates that clarify the question or ask for clarifications to the answers. But because I want people to feel as free as possible to express their deeply held views, in this instance I would rather that they do so without risk of criticism from other commenters.

Remember: The point of this thread is to help irreligious people (or religious people that don’t share the belief in miracles) understand the other side’s thinking, not to have a debate (though such understanding may eventually help debate in other forums).

Those who really want to comment on the questions generally, rather than to answer them (or to criticize the answers), may do so in the comments to this placeholder post.

University of Wisconsin Suspends Ban on Resident Assistants s Running Bible Study Groups in Their Dorm Rooms:

The Foundation for Individual Rights in Education posts an e-mail from the University's Interim Chancellor:

Effective immediately, UW-Eau Claire is suspending practices and policies prohibiting resident assistants from organizing, leading or recruiting for certain activities in the rooms and residence halls where they live.

I concluded the suspension is necessary after an initial campus review found that there have been inconsistencies in how the practice has been communicated to resident assistants and because UW System has announced that it will appoint a system-wide advisory committee that will provide guidance about RA activities.

The policies and practices in question prohibit RAs from organizing, leading and recruiting for certain activities in rooms and residence halls where they live and have supervisory authority over other students. Those include partisan politics and religious activities. . . .

Very glad to hear it, and hope the suspension becomes permanent. FIRE deserves credit for its work in this matter, and many others; for more details on the incident, see here.

Related Posts (on one page):

  1. University of Wisconsin Suspends Ban on Resident Assistants s Running Bible Study Groups in Their Dorm Rooms:
  2. Another Government Attempt to Suppress Religious Speech:
Guestblogging: Both PrawfsBlawg and Concurring Opinions have a bunch of good guest-bloggers visiting right now. Check them out.
Carpenter Responds:

Prof. Dale Carpenter, via email, responds to my last post on the Solomon Amendment controversy:

Unfortunately, the student reporter's story may have left you with a misimpression about the question I was responding to. He had asked me whether the law schools were pressing to exclude military recruiters _as a way to express their opposition to the war in Iraq_. I responded, "No, that's a red herring," and that the law schools were trying to do this for years before the Iraq war began. Of course the ongoing war is relevant to whether military recruiters should actually be excluded from recruitment at a school.

I then added that I do not believe Congress's passage of the Solomon Amenment has anything genuinely to do with national security or recruitment needs. That has been asserted repeatedly but I've never seen evidence to back it up. The military has ways to recruit law students interested in the JAG Corps (including through tuition help), for example, and law students who are interested in serving are of course free to contact the military. I have never heard it suggested that the military is even close to being short on bright young lawyers.

We continually seem to graduate more lawyers than we have good jobs for. In fact, it's my understanding that the DoD initially opposed the Solomon Amendment as "unnecessary" and possibly harmful to defense research.

By the way, I do disagree with Dean Polsby's (and I take it your) point that the appropriate way for law schools to protest the Solomon Amendment would be to target Congress and/or federal judges and/or the Executive Branch. The schools are protesting on-campus discriminatory recruitment by the military, not on-campus discriminatory recruitment by the three federal branches. A protest aimed at the body that directly discriminates seems more narrowly tailored to me. If federal judges started refusing to hire gay clerks, or if Congress declared a policy of refusing to hire gay staffers, and both of these bodies then demanded to use law school facilities to do their recruiting, we'd have a very different issue.

Moreover, the military is not absolved of responsibility for DADT. Military leaders testified in unison for barring service by gay people back in 1993. The Joint Chiefs came down hard for the ban. Without their strong backing, it would probably not be the law today. Even now, if military leaders took a stand against the policy it might well be reversed.

The Solomon Amendment case raises many difficult issues beyond what I've discussed here. But I did want to address these fairly narrow questions right now.

I'm running out of town (which is why comments aren't open), but one quick response: it's true that the military is engaging in discriminatory recruiting, but they are doing it on orders from Congress and the President, as upheld by the judiciary. It's not as if the JAG officers (who, as I understand it, tend to be among the most liberal members of the judiciary) can simply decline to enforce the law. To greet them with protests, catcalls, etc. (not that Dale has done this, but it's been done) and other forms of disrespect seems to miss the point, as does refusing to cooperate with them while cooperating with, and honoring, those that established the objectionable rule. As for the Joint Chiefs' responsibility, I don't know what their views are today, but military leaders objected to desegregation and to women in the military, but they also strictly obeyed their civilian bosses when they were told to.

Schuck on Viewpoint Diversity:

Yale Law School's Peter Schuck has an article in the American Lawyer on the lack of viewpoint diversity at elite law schools, why it matters, and what to do about it. Among other things, he argues that ethnic and gender diversity are no substitute for real diversity of opinion and perspective. Here are some excerpts:

Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties-that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view-has finally come to the attention of the general public.

Now that the truth is out, law school faculties are likely to come under increased pressure to surrender some of their hiring autonomy. But this pressure would be misguided. If these faculties know what is good for them, they will acknowledge the dearth of dissenting voices within them-and work earnestly to correct the problem from within.

* * *

a teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm-and also to exemplify-core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't-as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view-on our own faculties, debated before our own students-to keep us intellectually honest and to enrich learning. It is all well and good for student groups like the Federalist Society to bring heterodox lecturers to campus, but these extracurricular speakers are no substitute for what should go on in class-and seldom does, I fear.

Schuck does not believe there is an easy answer to this dilemma -- thought he knows that any legislative response would be a terrible idea. If there is to be more viewpoint diversity in legal academia, he argues, elite law schools must commit to changing from within.

As Glenn would say, read the whole thing (especially if you are planning to post a comment).


Wednesday, November 30, 2005

Congress's Responsibility for "Don't Ask, Don't Tell":

With the caveat that, as I've mentioned before, I dislike the Solomon Amendment, and think it is in fact "coercive" to deprive some schools of their lifeblood federal funding while granting such funds to their competitors, Dean Polsby raises a good point in his latest Solomon Amendment debate post on the ACS blog. The military's anti-gay "policy" is actually a statute that the military is obligated to follow. If the law schools want to express their displeasure at the "Don't Ask, Don't Tell" law, it would arguably make more sense to cut off recruiting ties with Congress (and the Executive branch, given that the president signed the law, and the judiciary, which has upheld the law). It would also be a much more courageous and costly act on the part of the elite law schools, which send very few students to the military, but many to other parts of the government.

Of course, one could argue that it would be foolish to boycott all three branches of government, considering that much of what they do has nothing to do with "Don't Ask, Don't Tell." But consider that not only is Don't Ask Don't Tell a law, not simply a "policy," but that the military is engaged in several shooting wars right now, one can also question how much weight one should give "Don't Ask Don't Tell" in the broader scheme of things, even if one thinks it's a terrible, invidious policy. A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military's policies (as Truman eventually did in 1948)? If any of the leading advocates of boycotting military recruiters have seriously grappled with the moral implications of doing so in the midst of major military conflict with truly awful enemies, I haven't noticed it (indeed, I asked a dean of a leading law school, in response to a letter urging my support of the FAIR litigation, about whether the fact that this is wartime gave him any pause at all, and did not receive a response). My colleague Eugene Kontorovich, unlike me a Solomon Amendment supporter, has written about related legal ethics issues. To return to a theme I've focused on elsewhere, antidiscrimination concerns are certainly important, but they do not always trump other competing values.

UPDATE: My GMU colleague Ilya Somin tells me that when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded along the lines of "the things wrong with the US won't be made better by letting Hitler win."

FURTHER UPDATE: Louis's actual remark: "[t]here may be a whole lot wrong with America, but there's nothing that Hitler can fix." Ilya adds: "The analogy is apt because just as Hitler's views on race were a whole lot worse than those of the WWII military, our current enemies' position on homosexuality is a whole lot worse than that of the Pentagon."

ONE MORE UPDATE: U. Minnesota professor Dale Carpenter, in the Minnesota Daily: "In my view, that’s [the wars in Afghanistan and Iraq] a red herring. This is an ideological hostility on the part of Congress toward universities that want to protect gay people from discrimination." (1) I don't see how it's a red herring to point out that law schools wish to obstruct military recruiting in the middle of wartime. (2) And why take it out on the military recruiters, who have no choice but to obey Congress's order? Why not refuse cooperation with Congress? Not to pick on Minnesota, because this sort of thing is going on at all the law schools that are up in arms about the Solomon Amendment, but Senator Norm Coleman, presumably a Solomon (and Don't Ask, Don't Tell?) supporter, was the commencement speaker at Minnesota last year, yet military recruiters, adhering to legislation passed by Coleman's cohorts, shouldn't be allowed to use the law school's bulletin boards? (Lest there be any doubt, I'm not being facetious here; I very much respect the opposition to "Don't Ask, Don't Tell," but don't understand why it's okay to honor the likes of Coleman but not okay to even tolerate military recruiters in wartime.)

Members of Congress Criticizing Newspaper's Decisions About Which Columnists To Employ:

Fellow lawprof Mark Scarberry asked the following on a lawprof list; I asked him for permission to post it here, and he graciously gave it:

Twenty-four Democratic members of Congress (including nine from California) have written to the Los Angeles Times to "object" specifically "as Members of Congress" to the dismissal of Robert Scheer, a long-time LA Times columnist. See [here] (by way of []).

I suppose that if a similar letter came from the administration, objecting to the dismissal at the same time of the LA Times conservative political cartoonist Michael Ramirez, we would hear complaints that the administration was intimidating the press in violation of the values underlying the First Amendment.

I wonder whether list members think that the 24 members of Congress should have considered those constitutional values and refrained from writing such a letter "as Members of Congress."

My view is that it's not improper for Congressmen to write such a letter; I doubt that a newspaper will find it particularly intimidating (in the sense of threatening government action, as opposed to threatening public condemnation). Nonetheless, it struck me as an interesting question that was worth reporting.

Best Libertarian/Classical Liberal Group Academic Blog:

Liberty and Power Blog is taking votes for the best Libertarian/Classical Liberal academic blogs in four categories, including best group blog (for which the VC has been nominated along with several others), along with best individual blog, and best new individual and group blogs. If so inclined, you can cast your vote here.

More on Anna Nicole in SCOTUS:

Steve Jacubowski has the latest briefs in the Anna Nicole Smith SCOTUS case: Anna's brief and an amicus brief by several law professors (in support of her).

Steve does suggest that there is a previously unrecognized public interest at stake here--if Anna wins, then perhaps she won't have to work for a living any more and we will be spared future episodes of "The Anna Nicole Smith" show on E. Or is that too much to hope for?

French Will Of Course Never Rise to the Importance of Yiddish

in court opinions, but check out this 5-page district court opinion — pretty amusing. Its title: "Order Denying Maaf's Motion To Preclude the French Phrase 'Queljeu Doit-On Jouer Vis-A-Vis Des Autorites De Californie?' as Used in Mr. Simonet's Notes from Being Translated as 'What Game Must We Play with the California Authorities?'"

Thanks to my friend and former classmate Rob Dell Angelo for the pointer.

We Conservatives Must Be Heavy:

As best I can count, the conservative faculty at Harvard consists of John Manning, Adrian Vermeule, Jack Goldsmith, Charles Fried, plus (probably) Einer Elhauge, Bill Stuntz, Mary Ann Glendon, Kip Viscusi, and a few others, amounting to perhaps 15 members of an 81-member tenure ladder faculty. If Harvard Law School is "listing" (I take in the sense of "leaning") "right" because of them, then I'm pleased to hear how weighty each of them must be.

College Admissions:

In case you missed it, this article by Malcolm Gladwell from The New Yorker last month on college admissions at "elite institutions" is quite interesting (he has a passing comment on law school admissions as well). One interesting tidbit that I hadn't been aware of is that male athletes that graduate from these institutions tend to go on to earn more after graduating that non-athlete peers.

By the way, I recently finished reading Gladwell's Blink, which I found to be quite enjoyable.

Same-Sex Marriage in the Netherlands:

Cathy Young has some interesting observations. Some key excerpts:

In 1996, Jonathan Rauch wrote that if same-sex marriage is to succeed, it must become the general norm in the gay community, not just another lifestyle option. At least so far, that does not seem to be happening in Holland.

Also in the past 10 years, the overall marriage rate has dropped, from 5.4 per 1,000 inhabitants in 1994 to 4.5 per 1,000 in 2004. More heterosexual men and women are entering into civil partnerships — which are much more easily dissolved — instead of marriage; in 2004, about 7% of new male-female legal unions were civil partnerships. This does not prove, as Stanley Kurtz has argued, that same-sex marriage undermines heterosexual marriage; the drop in marriage rates is undoubtedly due to many complex factors. However, one can plausibly argue that the changing attitudes toward marriage that make same-sex marriage possible may also be related to overall lower marriage rates. . . . .

Why am I pointing this out? Because, while I fully support legal rights for same-sex partners, I think both sides in the marriage debate have been prone to unwarranted and exaggerated claims about the social impact of same-sex marriage. The legalization of same-sex marriage has not, as some have claimed, led to polygamy in the Netherlands. But at least so far, it has not created a "marriage culture" among gays and has not boosted marriage among heterosexuals. As we continue our own discussion of same-sex marriage, we need to have all the facts on the table.

UPDATE: Dale Carpenter has a thoughtful response in the comments, and Cathy responds in turn.

Alito Questionnaire: Samuel Alito has submitted his 64-page questionnaire to the Senate Judiciary Committee. The questionnaire reveals that Alito interviewed for a potential Supreme Court opening as early as 2001. On the question of his membership in the Concerned Alumni of Princeton, he writes:
  This was a group of Princeton alumni. A document I recently reviewed reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group.
  I assume the referenced document is Alito's 1985 OLC job application. On the role of the federal courts and the job of judging, Alito writes:
  A paradox is inherent in our constitutional structure. The framers of the Constitution generally did not think that government institutions and actors could be trusted to refrain from unduly extending their own powers, but our constitutional system relies heavily on the judiciary to restrain itself. To do this, judges must engage in a continual process of self-questioning about the way in which they are performing the responsibilities of their offices. Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case. Judges must maintain a deep respect for the authority of the other branches of government – based on their democratic legitimacy – and a keen appreciation of the comparative advantages that other government institutions and actors have in making empirical judgments, devising comprehensive solutions for social problems, and administering complex programs and institutions. In addition, judges must be appropriately modest in their estimation of their own abilities; they must respect the judgments reached by predecessors; and they must be sensibly cautious about the scope of their decisions. And judges should do all these things without shirking their duty to say what the law is and to carry out their proper role with energy and independence.
  Thanks to Bench Memos for the link.
Brady Bill Anniversary:

On this day in 1993, President Clinton signed the "Brady Bill." The bill did not accomplish its original objective, as introduced in previous Congresses, of restricting private, non-commercial sales of handguns. Nor was the enacted bill structured, as previous versions had been, so that a police chief could indefinitely delay a handgun purchase.

Much of the support for the "Brady Bill" came from the claim--which was demonstrably false--that the bill would have prevented John Hinckley from buying the guns he used to shoot President Reagan and Press Secretary Jim Brady.

At the signing ceremony, President Clinton emotionally told the story of a friend of his who was an Arkansas gun dealer. The gun dealer sold a firearm to an escaped mental patient, who then murdered six people.

"My friend is not over it to this day," said the President, as the crowd applauded. "Don't tell me this bill will not make a difference. That is not true. That is not true."

"Not true" turned out to be a pretty good summation of the President's story, which he had throughout the 1992 campaign.

The Arkansas Democrat-Gazette (Little Rock) tried to track down the origin of the tale. Back in 1984, an Arkansas man named Wayne Lee Crossley used a .45 pistol and a shotgun to murder four people in a bar. Contrary to the Clinton story, Crossley did not buy the guns himself; he convinced a woman friend to buy the guns for him. The Brady Bill did nothing to prevent people with clean records from buying guns for anyone they want.

When the media started asking for substantiation of Clinton's story the White House stonewalled. But before the no-answers rule was put in force, one White House staffer admitted that the man might just have been treated at a mental institution, rather than having "escaped from a mental hospital." Simply having undergone mental therapy does not legally disqualify a person from owning a gun, under federal law.

While the President spoke movingly about how his "friend is not over it to this day," the dealer/"friend" who sold the guns died several years before Clinton spoke. (Timothy Clifford, "Clinton's Gun Story is a Murder Mystery," (New York) Daily News, Dec. 3, 1993.)

The Brady Bill imposed a five-government-working-day waiting period, during which local law enforcement could check the background of a handgun buyer. In 1998, the waiting period sunset, and was replaced by the National Instant Check System for all retail firearms sales. In 2004, Congress corrected a NICS administrative abuse which had been invented by the Clinton Administration. The "Tiahart Amendment" outlawed the Clinton practice (which had been administratively ended by the Bush administration) of using NICS to compile a national registration database of gun owners.

After the Brady waiting period was passsed in 1993 (and set for expiration in 1998), gun prohibition lobbyists in 1994 successfully pushed for a federal ban on so-caled "assault weapons" (which expired in 2004).

Almost immediately after passage of the "assault weapon" ban, Handgun Control, Inc. (which later renamed itself "the Brady Campaign"), announced "Brady II." Brady II would make permanent the handgun purchase waiting period which was set to expire in 1998, and would limits handgun purchases to one per month. The bill would also require all states to set up handgun licensing systems, with possession of a handgun permitted only to persons who pass federally-mandated safety training. All handgun transfers would be registered with the government.

Brady II would require every owner of a "large" ammunition clip to be licensed the same way that the federal government licenses machine gun owners. Simply to retain the magazines currently owned, a person would have to be fingerprinted, and pay heavy federal taxes. Brady II would also lower the ten-round limit to six rounds. As a result, the owner of a Colt .45 pistol and the standard seven-round magazine for the gun would need to go through the federal machinegun licensing system.

Under Brady II, anyone who owned at least twenty guns or 1,000 rounds of ammunition would be required to obtain a federal "arsenal" license. Licensees would be subjected to three unannounced police inspections per year. Persons who were required to have a license but did not obtain one would of course be subject to whatever enforcement action the Bureau of Alcohol, Tobacco and Firearms deemed appropriate.

For purposes of defining an "arsenal," firearms, firearms parts, and ammunition clips would all count as a "firearm." In other words, if a person owned three rifles, three handguns, two ammunition clips for each gun, and set of disassembled spare parts for the rifles and the handguns, he would have an "arsenal" consisting of at least 20 "guns." A thousand rounds of ammunition also count as a so-called "arsenal." So the hundreds of thousands of target shooters who pick up a pair of bricks of rimfire ammunition for $15 every few months would also become the owners of "arsenals."

Today, the Brady Bill is only a memory, and Brady II is so unfeasible as national legislation that it has not been re-introduced. Various components of Brady II, however, are still being pursued at the state and local level, sometimes successfully.

Is Harvard Law Listing Right?

An interesting article in the New York Observer credits Harvard Law School Dean Elena Kagan with creating a more ideologically open intellectual atmosphere at the school. Harvard once had the reputation that it was a hostile place for conservatives and libertarians. No longer. Among other things, the student Federalist Society chapter has an estimated 350 members — arguably making it the largest student group on campus. The story also reports that Dean Kagan has placed quality over ideology in faculty appointments — a push that resulted in the hiring of prominent conservative scholars John Manning an Jack Goldsmith.

What might have once been seen as an assault on the school’s values has been turned into a point of pride, according one Harvard Law School source, with professors heralding their willingness to make the recent hires—especially Messrs. Manning and Goldsmith—as proof of their liberal, tolerant mindset.

Which is precisely the point on which Ms. Kagan has successfully lobbied: It would be anti-intellectual to shut down the candidacy of a qualified conservative.

“We don’t look at politics,” Ms. Kagan insisted. “We figure that if we really go for the people who are doing the most interesting scholarship and who are the best teachers, we’ll get a pretty wide political cross-section—and indeed we have. We’re just looking for the best people, the best scholars, the best teachers.”

The effort has not been without its small struggles. There was a political flare-up when Mr. Goldsmith joined the faculty last fall, with faculty members airing their concerns about his alleged involvement with the infamous “torture memos” in The Boston Globe.

And when it later emerged that Ms. Goldsmith had, in fact, resigned because he objected to the administration’s permissive lines on torture, not all of his critics were placated. They saw echoes of the administration’s position in his scholarship, which argues that that the United States isn’t always bound by international law.

It was Ms. Kagan’s public support of Mr. Goldsmith that effectively quelled the outcry.

In Mr. Manning’s case, it emerged that the changes at Harvard Law are hardly happening fast enough for some students.

When Mr. Manning joined the campus, the student-run Harvard Law School Record ran an editorial in support of his hiring: “At HLS, you can count the number of actively, politically conservatives [sic] on one hand and still have enough fingers left to flash a peace sign. On a campus filled by hundreds of instructors, is this really sufficient diversity?”

Sufficient or no, Harvard Law has changed since the days when . . . “[Reagan Solicitor General] Charles Fried was the only game in town.”

UPDATE: OOPS!!! I just saw that my co-blogger Orin beat me to the punch on the HLS story. It figures. After all, he actually went there.

"Harvard Law On A Heterodox Spree, Listing to Right": The New York Observer has a very interesting article about how the deanship of Elena Kagan has helped Harvard Law School become significantly more accepting of conservatives than it used to be. An excerpt:
  "In Dean Kagan, Harvard has found somebody who genuinely values intellectual and viewpoint diversity," said Mr. Berenson. "[Conservatives have] gone from feeling excluded to included."
  Ms. Kagan herself is reluctant to characterize her deanship as a break from Harvard’s past.
  "My view of Harvard is that because we are a place that is larger in scale than a lot of other schools, we’ve never been a niche place," Ms. Kagan told The Observer. "We sort of have everything, and that continues to be true in our current hiring. Our current hiring is all across the board from a political-slash-ideological perspective, and that’s exactly what it should be."
  But among current students, alumni and faculty, the difference between Harvard Law School today and in 1988 is palpable, even if among the school’s officials, the change is unspoken.
  Thanks to my law school classmate Mark Yzaguirre for the link.

Related Posts (on one page):

  1. We Conservatives Must Be Heavy:
  2. Is Harvard Law Listing Right?
  3. "Harvard Law On A Heterodox Spree, Listing to Right":

Tuesday, November 29, 2005

Solove on Pajamas Media: Over at Concurring Opinions, Dan Solove takes a look at Pajamas Media (an enterprise that the VC is happy to have joined). An excerpt:
  What's the value added by the Pajamas Media website? It claims to gather the best information in the blogosphere, but how? Blogs themselves are a filter through which we interact with the Internet. We look to bloggers to make us aware of the best and most interesting information and stories on the Net. Pajamas Media aims to be an intermediary between us and the blogs, . . . [b]ut the value of the intermediary is that we trust the intermediary and enjoy the intermediary's voice and opinion. That's one reason why people read blogs. Hiring a bunch of editors to do the sifting isn't quite the same.
  That's a good point, I think. A website that collects the best of the blogosphere is really just another blog.
Very Much Precedented Tying of Federal Aid to Colleges to Obeying Government Rules:

In his first post in his ACS debate on the Solomon Amendment, with GMU Dean Dan Polsby, Bill Eskridge refers to the Solomon Amendment as "an unprecedented tying of massive amounts of federal grants to the renunciation of a dissenting stance by academic institutions." It's certainly not unprecedented, as the Solomon Amendment is directly descended from laws "tying massive amount of federal grants to the renunciation of a dissenting stance by academic institutions," that is, institutions that objected to the race and sex bean-counting required by federal regulators starting in the 1970s.

So, I interrupt my blogging break to review the history of the Solomon Amendment, from an op-ed that was in turn based mainly on text from my book "You Can't Say That!" (no self-plagiarism here!):

The same liberal "civil rights" activists who now oppose the Solomon Amendment, adopted in 1996, had supported previous efforts to ensure that the federal government could use its financial power to force private universities to obey draconian antidiscrimination rules. In other words, the troubling consequences of government regulation of universities' internal affairs have come full circle.

First, a little history. The origins of federal interference with university policy lie in Title VI of the 1964 Civil Rights Act, which bans racial discrimination at federally funded universities, and the Title IX Amendment of 1972, which extended the ban to sex discrimination. Grove City College, a Christian liberal arts school in Pennsylvania, tried to preserve its independence by refusing all federal funding. Grove City even declined to participate in federal student aid programs that required the college's direct involvement.

But those efforts to retain independence were not enough to stave off federal bureaucrats motivated by extremist antidiscrimination ideology. In 1977, the Office for Civil Rights of the old Department of Health, Education, and Welfare (HEW) claimed that while Grove City declined direct federal funding, it received indirect funding by accepting tuition payments subsidized by a federal program, even though students applied for this program without any input from or participation by the school. Therefore, according to HEW, Grove City was bound by Title IX.

Grove City's then-president, Charles MacKenzie, refused to sign the assurance of compliance. But he did affirm that the school had "no argument with the spirit or intent of Title IX's support of nondiscrimination." The college had accepted women since its founding in 1876 and had never been accused of sex discrimination. But MacKenzie believed that if Grove City agreed to comply with Title IX, the result would be increased costs to the college, greater expenses for its students, threats to the Christian nature of the college, mandated affirmative action preferences based on race and sex, and a general loss of independence. HEW at least partially validated his suspicions when it later informed Grove City that colleges subject to Title IX must maintain "detailed records of all student and employee applications, enrollments, academic records, personnel files, suspensions, hirings, firings, promotions, denial of promotions, etc. — all broken down by race, age, sex, and ethnic origin — and submit them upon demand to federal authorities."

The college eventually filed a federal lawsuit against HEW, claiming that it was not a federally supported institution subject to Title IX and that, in any event, it had a First Amendment academic freedom right to refuse to comply with the government's intrusive demands in the absence of any allegation that the college had practiced discrimination. However, the Supreme Court disagreed. It held that Title IX applied to Grove City because its students received financial aid from the federal government. The Court also ruled that the First Amendment didn't apply because Grove City could evade Title IX by forbidding its students to receive federal financial aid.

The Court tried to limit the damage its holding inflicted on the institutional independence of colleges by ruling that only Grove City's financial aid office was subject to Title IX because only that part of the university was a recipient of federal aid. The rest of the institution, however, could maintain its autonomy from the federal government.

The Court's attempt to preserve some institutional autonomy for universities from antidiscrimination laws caused uproar among liberal antidiscrimination activists. They persuaded Congress to pass the "Civil Rights Restoration Act." This law ensured that if a university receives any federal funds at all, including tuition payments from students who receive federal aid, as in Grove City's case, all educational programs at that university are subject to Title IX.

The Solomon Amendment is modeled after the Civil Rights Restoration Act's interpretation of Title IX.

Liberal professors generally cheered the government on when it was coercing small anti-statist colleges like Hillsdale and Grove City (both of which now decline federal funds and forbid their students from accepting federal funds!) And according to the Boston Globe, some professors are dubious about the Solomon Amendment case, lest there be some small insignificant college somewhere that will use a favorable precedent to defy federal regulators.

Related Posts (on one page):

  1. Carpenter Responds:
  2. Congress's Responsibility for "Don't Ask, Don't Tell":
  3. Very Much Precedented Tying of Federal Aid to Colleges to Obeying Government Rules:
  4. ACSBlog Debate On Solomon Amendment Case:
If You Speak Swedish, and Want to Do a Translation That Many People Will Read,

here's the Swedish Supreme Court's decision from today holding that Ake Green, a minister, couldn't be punished for his anti-homosexuality sermon. Green had been sentenced to a month in prison; an appellate court set that punishment aside, and now the Swedish Supreme Court has affirmed the appellate court's decision. If anyone can translate this into English, I'd be delighted to post it, and I'm sure many people will be very interested in it. (Naturally, if you know of an existing English translation, I'd be glad to see it, too.)

ACSBlog Debate On Solomon Amendment Case:

This week, the ACSBlog will be hosting a debate between Dan Polsby and William Eskridge on the Solomon Amendment case, FAIR v. Rumseld, wqhich will be argued on Dec. 6.

Dean Polsby leads off with "An Unremarkable Use of Congress's Spending Power," noting the breadth of the constitutional power to Raise and Support Armies. A snippet from his post:

The draft isn’t much thought about these days, but as a reminder, here is what was involved: The government can make you leave school or your family for years at a time, force you to live communally with lots of other men without a molecule of personal privacy, ship you overseas, censor your mail, order you into extreme personal danger and even certain death, and have you sent to prison or even executed if you refuse.

This is a broad power.

The Solomon Amendment arises under this power, and yet its exactions are slight. The Solomon Amendment does not require schools to give JAG Corps recruiters access to law schools on pain of criminal punishment. It does not – as constitutionally it might – simply draft all law professors into the armed services, as millions of other Americans have been drafted when their country needed them, where they could then be ordered to admit JAG recruiters and tried without a jury and punished under the UCMJ if they refused. It simply uses financial inducements to universities to encourage their law schools to allow the armed services equal access to law students.

It looks like Prof. Eskridge hasn't posted yet--it looks like his riposte will either come later today or tomorrow.


Eskridge's post is now up. I understand each person will be doing one a day for the rest of the week.

Ethical Duty to Report Crimes and Argument by Epithet:

When should people report crimes to the police, especially when the crimes are done by people who are (1) friends, (2) associates, or (3) others who inform the person in his professional capacity, and expecting confidentiality? That's a really tough question, but here is an example, from a Slate column last week, of how not to deal with it (emphasis added):

In maintaining his silence, Woodward, more than anyone else in the Plamegate scandal, has upheld the highest standards of journalistic integrity and discretion. Perhaps this is because, more than anyone else, Woodward understands the tenuous and often strained relationship between a powerful government and its citizens. (Whether Woodward—who has made his career as a journalistic watchdog, attentively patrolling executive power run amok—had some special obligation to his editor is a different question.) Woodward's critics are essentially arguing that he should have volunteered information (whether directly to the prosecutor or functionally to the prosecutor via publication) before being asked —- that is, he should have become an informant.

We have laws in this country that designate precisely when citizens are required to rat on other people. The laws, for instance, require doctors who witness injuries consistent with child sex abuse to call authorities; and social workers are obligated to snitch if they confront someone clearly about to physically harm another. Certain other professionals are also deemed by law to be "mandatory reporters." But outside these narrow confines, there is no law in our country imposing an obligation to begin or to assist in a criminal prosecution -— not in drug cases, not in mob cases, not even in murder cases.

And rightly so. America has been through McCarthyism before, and we have seen what a culture of informants can produce.

In America, it is the prosecutor's job to get information, not the citizen's to volunteer it -- and this is for good reason. Many of our other important values -- such as journalistic integrity, the right to privacy, or the right to be free from unwarranted searches and seizures -- compete directly with an obligation to volunteer information. The value of our freedom from governmental authority is invariably tested during troubled times and generally faces its greatest challenges in the context of highly charged issues. But although it is chic to be patriotic, particularly in wartime, a vogue for cooperation with prosecutors shouldn't be confused with good policy. It is true that we prize honesty and integrity in America, and certainly we expect those summoned before a tribunal to testify completely and truthfully, but this is only required when someone is questioned by federal agents or compelled to testify. We may be a nation of Honest Abes, but we are not a nation of snitches. . . .

To begin with, this is argument by epithet; instead of showing that something is bad, it just calls it names. "To rat"; "snitch" (said twice); even "informant" (said twice) -- these are pejorative terms for what might be equally well called "helping catch criminals," "protecting innocent victims," or (in some instances) "whistle-blowing." Would we really call someone who calls the police when "someone [is] clearly about to physically harm another" a "snitch"? Someone who tries to protect a child from future sex abuse a "rat"? (The column gives doctors' calling authorities about possible sex abuse as a "for instance" in the category of "rat[ting] on other people.")

I should think not. And even in more morally ambiguous situations, when the crime is less serious or less imminent, or the personal connects with the criminal are closer, denouncing the person who calls the police as a "snitch" or a "rat" (as opposed to a "public-spirited citizen," who may help advance justice at considerable personal cost, for instance when someone turns in a criminal who's a family member, as in the Unabomber case) should be the conclusion of an argument, not a premise.

But beyond this, the argument fudges a person's legal duties and his moral duties. It's true that the rule in American law is that people don't have to report crimes (at least until they're subpoenaed to do so); legal duties to report are the exception. But the rule in American law is also that people may report crimes; legal prohibitions on reporting are the exception. So appealing to the "laws in this country that designate precisely when citizens are required to rat on other people" as evidence of whether Woodward should have volunteered the information is misleading: To the extent that the laws influence our ethical obligations, they simply tell us when we must come forward (rarely) and when we must not come forward (rarely) -- they don't answer when we should come forward in those situations where we may but need not.

Of course, there are plausible reasons why journalists shouldn't voluntarily reveal their sources, even when the revelation can help investigate a crime. (There are also plausible reasons why people shouldn't voluntarily call the police about conduct that we might think shouldn't be a crime, or is at most a minor crime.) But those reasons may have to do with this particular case, and may have to do with the special role of journalists (a matter that the Slate column discusses, but in too little detail, in my view) and the special values that can be served by journalists' confidentiality.

They have little to do with the proposition -- in my view an outrageous proposition -- that the rest of us, including "doctors who witness injuries consistent with child sex abuse" and "social workers . . . [who] confront someone clearly about to physically harm another" are "rat[s]" and "snitch[es]." Nor do they have much to do with the broader proposition that people's willingness to help fight crime by calling the police when they have evidence of crime would make us a "nation of snitches."

Ave Maria Responds to WSJ:

Ave Maria School of Law President Bernard Dobranski co-authored a letter to the editor (subscriber only link) published in yesterday's Wall Street Journal responding to the WSJ story discussing the school's potential relocation to Ave Maria Town in Florida. Among other things, the story quoted an Ave Maria professor "hyperbolically" referring to the development as a "Catholic Jonestown."

Dobranski, et al., allege "a campaign of distortion and misrepresentations to influence the decision about a possible relocation of the Ave Maria law school to a new campus in Florida." Among other things, this campaign seeks to tar Ave Maria Town as a "religious ghetto, and a fanatical one at that." To the contrary, they write, the hope is that Ave Maria Town will attract people of many faiths who seek to live in a community that is supportive of traditional values. The letter continues:

Ave Maria University and the Barron Collier Companies have agreed that the town will promote the traditional family values that prospective residents are seeking. We believe this can best be achieved by attracting retail establishments that share this commitment to, for example, an environment free of the degradation of women that pornography represents. Retailers who know their market can be expected to stock only those products that sell. Although restrictions on both pornography and contraception effectively will be imposed by the marketplace, it is Ave Maria's fervent hope that Catholics will shun both of these. It is an outrage that this sincere desire to help fellow Catholics live in accord with their faith invites a comparison with Jonestown's infamous Jim Jones. . . .

Ave Maria University includes . . . on its board of trustees and board of regents (advisory) such prominent clerics and Catholic intellectuals as Father Benedict Groeschel, Prof. Robert George of Princeton, Prof. Mary Ann Glendon of Harvard Law School and Michael Novak of the American Enterprise Institute. The idea that any of these people would countenance the sort of Catholic ghetto Ms. Riley imagines is patently absurd. Ave Maria seeks to be no more than mainstream Catholic; meaning, of course, unreserved fidelity to the teaching of the Catholic Church. This may be offensive to the secular left in the culture wars now raging, but it ought to be applauded even by a dissident faculty member of a Catholic law school, even if he prefers to remain in Michigan.

For more on this, my initial post on the matter is here. Andrew Morriss takes objection to my (and Ann Althouse's) take here. I hope to respond to his post some time this week.

UPDATE: Althouse responds to Andy Morriss here. I would add a few points. First, while people should certainly be free to "sort themselves into whatever Nozickian communities they want" (in Andy's words), this doesn't mean they will make good choices. It is one thing to want to live in a secluded community for the purposes of raising children or to cloister oneself off from the world in order to examine transcendent truths. It is quite another to seek to close off a law school from the outside world as it appears Ave Maria Chairman Tom Monaghan would like to do. (Note that he did not sign the letter to the WSJ.

Law schools are not monastaries -- and they should not aspire to be such either. That Ave Maria's effort may well be futile, as Andy suggests, does not make the impulse any less "creepy." Just because I would defend their right to choose does not mean I cannot criticize the choice.

Related Posts (on one page):

  1. Ave Maria Responds to WSJ:
  2. From Successful Startup to "Catholic Jonestown"?
Question for Those Who Know About Grand Jury Confidentiality Rules:

A reader asks:

I would like to submit a question for discussion at your blog. As I former prosecutor, I have an amusing series of old "war stories." Some of these stories involve events that occurred in front of a grand jury. In light of Rule 6 of the Ohio Rules of Criminal Procedure (and, for our AUSA brothers, Rule 6(e) of the Federal Rules of Criminal Procedure), how much would I be allowed to tell?

Let me make up an example (a complete frabrication, not based on anything that actually happened). I asked a witness, "Whose idea was it to [commit the crime]?" The witness shrugged his shoulders, raised his right hand, and said, "Me."

If this story were based on an actual event, would telling it put me in violation of rule 6?

I take it that the reader is contemplating telling stories without identifying the names of the cases or the witnesses, or otherwise saying much that would make it clear what case was involved (though I suppose that there's always a risk that listeners could figure it out, especially if the case is recent and if they know other things that would identify the case for them). If you are familiar with the grand jury confidentiality rules and have an answer to this, please post it in the comments.

Copying from Yourself:

I thought I'd pass along a few thoughts about Orin's and Stephen Bainbridge's posts on "self-plagiarism."

First, "self-plagiarism" is probably a misleading term. I realize that it's often used humorously, but I think some people might take it seriously, and think that "self-plagiarism" really is kin to "plagiarism." It's not: The harms of plagiarism are that (1) it deceives the reader into believing that your work is your own invention, when it really isn't, and (2) it wrongly denies credit to the people whose work you’re copying. Neither of these applies to copying from yourself. (In this I agree with InstaPundit.)

Second, there are problems with copying from yourself, but it's also easy to deal with those problems. Setting aside the purely copyright law questions that arise if you've given away or sold the copyright, they are:

  1. Copying from your past published work may make a reviewer -- for instance, a law review editor deciding whether to publish the work, or a professor grading your paper -- think that your work is novel when in fact you've already said it before.

  2. Copying from your past published work may annoy readers who have read your old work, are now reading your new work, and are slowly finding that they've wasted their time rereading what they'd already read before.

The way to deal with these problems, I think, is simply to drop a footnote at the start of the discussion -- or, if you prefer, have a sentence in the text saying something like "As an earlier article of mine discussed . . ." -- that makes clear that the following paragraph, section, or whatever else is adapted from an earlier work. This signals to the reviewer that this material shouldn't count as original, and it signals to readers that they can skip this section if they read the earlier piece.

There's no inherent need to paraphrase your original words (if you edited them well the first time, they're probably the best words for the job), or to put them in quotes (which would just be needlessly distracting). You might still want to reword the material if the context is different enough to justify such alterations, but there's no ethical obligation to do so.

Of course, if the whole article is just a version of your earlier piece, then the introductory warning may signal to the law review editor and to readers that the piece isn't really novel -- which is only fair, and which discharges your obligation to them. (The editors might not mind this, for instance if you're adapting a piece from a law review into a communications studies journal, or if you're publishing a trimmed down version of a long piece; the important thing is that they realize that this is going on, and get to decide whether they want to publish the article nonetheless.) You should also signal this on your c.v., so that people who are counting your publications for various professional reasons realize that they shouldn't double count. On the other hand, if only a small part of the article -- say, the background section -- is borrowed from an earlier piece, then there's no need to stress this on the c.v., and law review editors probably won't be much annoyed by the duplication.

Third, all this refers to scholarship being reused as scholarship. If you write an op-ed (or a blog post) based on your scholarly work, I don't think you even need to point this out (though you might want to, since it might make your op-ed seem more credible). Editors expect op-eds not to have been published before in newspapers, but I don't think they expect that the material is novel in the way that scholarly work should be novel; I suspect they actually like it when the op-ed is based on published scholarly articles. And virtually no readers are likely to have read the original scholarly piece, so you don't need to worry about wasting their time by giving them something they've already read.

Related Posts (on one page):

  1. Copying from Yourself:
  2. Self-Plagiarism:
Self-Plagiarism: Stephen Bainbridge looks at an issue I've been wondering about recently as I work on my computer crime law casebook: What are the rules and norms for copying your own scholarly writing? When working on my casebook, I often find myself covering ground that I have already covered elsewhere in articles, case updates (a service now-defunct, alas), and even as a government employee. Ignoring copyright issues — a realistic assumption, in that I own most of the copyrights, or else the works are not copyrighted — is there something wrong with copying a sentence or a group of sentences from my own prior written works as part of a new discussion in the casebook? On one hand, the concern feels a little silly; after all, the words are my own, and you can't steal from yourself. On the other hand, cutting-and-pasting even from my own text feels, well, icky; I usually end up rephrasing and rearranging to feel better.

Related Posts (on one page):

  1. Copying from Yourself:
  2. Self-Plagiarism:
Nobel Peace Prize Nominees:

The Nobel Committee has an interesting database of all the nominees for the Nobel Peace Prize from 1901 to 1951. Nominations are kept secret for 50 years. Nominees who, like unrepentant multiple murderer Stanley Williams, do not appear to have deserved the nomination include:

Mussolini (1935, by a French law professor, and by the law faculty at a German university);
Stalin (1948, by a Czech professor)(also, 1945 by a former Norweign foreign minister, although the minister only wrote that Stalin was qualified for the prize, and did not formally nominate him);
Kaiser Wilhelm II (1911, by the President of UC Berkeley; 1917, by a German professor and by a Turkish law faculty);
Hitler (1939, by a member of the Swedish parliament, although the nomination was withdrawn before the Committee considered it);
Alfred Ploetz (the founder of racial hygiene in Germany; 1936 by a Norwegian parliamentarian, for warning that war would harm biological reproduction);
Neville Chamberlin (somewhat plausibly in 1926 for his role in the Locarno Pact; less so in 1939, with 9 nominations for his role in the Munich Agreement).


Monday, November 28, 2005

Inside the Alito Memo: T.R. Goldman has an interesting article on the 1985 Alito memo and the role of the Office of Legal Counsel in the Legal Times.
Does the Bush Administration Have An Exit Strategy For Iraq?: The Agence France-Presse seems to think so. Closer to home, Dan Froomkin of the Washington Post takes a link-rich look at the story.
Mazzone on the Supreme Court's Workload: Guestblogging at Concurring Opinions, Jason Mazzone has a post criticizing the workload of the Supreme Court that echoes what I think is a fairly common complaint: the Supreme Court decides too few cases, and the opinions it does issue are too complicated.
  Last term, the Supreme Court issued opinions in just 74 cases. That's pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn't; many issues that, once decided, will not reach the Court again for decades, if ever.
  A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It's not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
  Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices' language, the general public would have no idea what the Court was doing.
  I look at the Supreme Court's workload somewhat differently. First, I think it's probably wrong to think that more Supreme Court decisions means more settled law. If anything, I think the opposite is probably true: lots of new Supreme Court cases in a field probably tends to unsettle the law rather than settle it.

  Second, I'm not sure how much we should value the aesthetic "delight" of reading "an opinion that crisply and simply sets out the decision of a unanimous Court." I assume Mazzone is referring to the reasoning of Court opinions, rather than their bottom-line holdings. If so, it seems worth noting that very few people read Supreme Court opinions, and extremely few for their reasoning alone, and I don't know how many people in that group place a particular value on crispness and simplicity. In my experience, most readers value whether reasoning is persuasive, and different people find different kinds of opinions persuasive.

  Finally, it's hard to assess whether the Court should take more cases in the abstract — that is, without considering what kinds of cases the Court should grant. Should the Court hear lots of patent cases? Revisit the Warren Court's criminal procedure revolution? Decide to hear every preemption case that comes over the transom? Should the Court really start rethinking its approach to ERISA? Should the Justices start taking the Third Amendment seriously? It's hard to know whether the Court should start granting more cases without a relatively specific answer to what kinds of cases the Court should grant.

  UPDATE: Michael Cernovich offers some additional thoughts.

Mark Kleiman and Cathy Young defend it, in my view quite rightly.

Who Accredits Periodicals in Rhode Island?

The Rhode Island Newsman's Privilege Act provides (emphasis added):

Except as provided in § 9-19.1-3, no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, to disclose any confidential information, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, newsphotographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station.

What could "accredited" possibly mean here? (And, no, this is not a normal locution in such statutes.)

UPDATE: Just to make it clear, I realize that reporters are sometimes given credentials to access some government event or function, for instance to participate in White House press conferences, get seating in the Supreme Court's press gallery, or get an office in the Supreme Court press room. That's necessary to ration scarce space or time, and sometimes also to provide adequate security. But it's done by each government entity, and doesn't provide any sort of general "accreditation" of a newspaper; a newspaper may have access to White House press briefings but not an office in the Supreme Court, and some newspapers and periodicals that don't specialize in hot news may not seek credentials for access to any government function. There's no reason to think that this sort of case-by-case credentialing for access to particular government functions would bear on whether the newspaper's employees get an evidentiary privilege as to stories that had nothing to do with such government functions.

Independence Institute teams up with Violence Policy Center:

And with the Alliance for Justice, the American Conservative Union Foundation, and 31 other non-profit organizations. We're all members of a coalition which filed an amicus brief in the upcoming January Supreme Court case of Wisconsin Right to Life v. Federal Election Commission. The brief argues that the censorship provisions of the McCain-Feingold law cannot constitutionally be applied to public charities, including the 35 amici. The well-written brief was produced by three attorneys for Perkins Coie, and offers an excellent argument about one aspect of the constitutional abomination that Congress enacted in 2002, and which President Bush--in derogation of his oath to defend the Constitution--signed notwithstanding his belief that the bill was unconstitutional.

The Last Duel:

Just read this history book, by a UCLA English professor whom I don't know personally, and liked it very much.

The book is about the last judicial trial by combat authorized by the French central government, in 1386; it seems quite thoroughly researched, but it's also a page-turner. It's got friendship gone sour; a battle to the death; a complaining witness (the wife of one of the combatants, who had accused the other of rape) who would face immediate burning at the stake (on the grounds that she had been proved a perjurer) if her husband and champion was defeated; and a battle scene that's shocking even to me, after all the battle scenes I've read about and watched in movies.

This would make a great historical movie, it seems to me; but in any case, it should be a great gift for your history buff friends. Here it is in (And, no, I'm not getting a penny from this plug.) Here it is in paperback and in hardcover.

Getting a Human Through Business Voice-Mail Systems:

Here's a list that public benefactor Paul English has produced. I heard about it on an NPR story last week, but reader Rich Swartz just e-mailed me the URL. Seems very useful, though naturally I can't vouch for its accuracy.

Goodnight Reality:

Goodnight Moon is one of the best-selling children's books of all time (and with good reason). Yet in response to anti-smoking sentiment, Harper-Collins is doctoring photos of the book's illustrator Clement Hurd, to hide the fact that he smoked. It's not censorship, and I fully support discouraging kids from smoking, but I find Harper-Collins decision shameful nonetheless. The creator of this site does too.

Are Blue Laws "Necessary"?

In response to my post on the Massachusetts law requiring that supermarkets close on Thanksgiving, some commenters suggested such laws served a valuable purpose insofar as they insulate stores that wish to close on holidays from competition. Without such laws, these commenters suggest, it's only a matter of time before all stores open on holidays so as not to lose business to their competitors. In a sense, there is a "race to the bottom" that forces all market participants to adopt a suboptimal policy. From this perspective, the law does not deny "choice" as much as it privileges one choice (closing on holidays) over another (opening on holidays). In either instance, some stores (and employees and consumers) will be deprived of their choice, so the question becomes which policy option is preferrable.

This is an interesting argument -- and one that is theoretically plausible. But it is also possible (and I would suggest, more likely) that the competitive pressures are not all that great. Of course staying closed when one's competitors are open entails costs, but this does not mean one cannot compete unless one matches a competitor hour-for-hour, day-for-day. Staying open for the convenience of consumers is one of many areas in which companies will compete with one another, and all such choices involve trade-offs. Stores will only open on holidays if they believe doing so will generate enough business (or goodwill) to offset the costs. In this regard, staying open on holidays is not materially different than staying open late at night or offering additional, labor-intensive customer service.

What of the empirical evidence? Are there successful business enterprises that resist the competitive pressure to open on holidays and Sundays? Yes. William T. Bogart points out that Chick-Fil-A restaurants close on Sundays because of the religious preferences of the chain's founder. The chain is quite successful despite this policy, even opening stores in malls and airports despite the Sunday closure policy.

This should not be a surprise. We see the same dynamic in buisness hours in various industries, but we do not see a similar "race to the bottom." Some banks have extended hours and open on weekends, others do not. Some pharmacies are open 24 hours, others have very limited hours. The competitive dynamic does not produce a uniform policy. To the contrary, it encourages diversity to meet the diverse wnats and needs of consumers. Over all, most stores are open at those times when most consumers want to purcahse goods and services. And when it comes to holidays and Sundays, whether stores are open is more a function of consumer demand and manager preference, than anything else.

The bottom line: Were Massachusetts' blue laws repealed, many stores would still be closed on Thanksgiving, but forgetful or non-celebrating consumers would also be able purchase necessary items and the handful of stores that remained open.

The Blue Mass Group has its own anti-Blue-law post here.

Related Posts (on one page):

  1. Are Blue Laws "Necessary"?
  2. Working on Turkey Day:
[Puzzleblogger Kevan Choset, November 28, 2005 at 12:12pm] Trackbacks
Today's Times Crossword:

The Puzzleblogger has a crossword in today's New York Times. It's a Monday, which means it's easy.

I'll return with regular puzzles once I regain the full use of my right hand.

New York Review of Books and Blogs:

I'm pleased that this blog was noted in this article in the New York Review of Books:

At The Truth Laid Bear, a Web site that ranks political blogs according to their number of links with other sites, eight of the top ten blogs are conservative. The conservative sites include InstaPundit (University of Tennessee law professor Glenn Reynolds), Power Line (three lawyers), (a syndicated columnist whose recent book defends the internment of Japanese-Americans during World War II), Free Republic (conservative activists), Captain's Quarters (run by a call-center manager), the Volokh Conspiracy (a UCLA law professor), and Little Green Footballs (commentary on foreign policy with a strong pro-Israel slant). Complementing them are a host of "milblogs," written by active-duty military personnel promoting vigorous pursuit of the GWOT (Global War on Terror). (By far the most-visited political blog is the left-of-center Daily Kos; its popularity is owing in part to its community-style approach, which allows registered readers to post their own comments as well as comment on the posts of others.) . . .

For these bloggers, the principal target is the mainstream media, or MSM. Every day, they scrutinize the top dailies, the three broadcast networks as well as CNN, and the newsweeklies for evidence of "liberal bias." Over the last year, they have demonstrated their influence. . . .

On the other hand, I couldn't help but notice that the blog wasn't quite accurately described -- the Volokh Conspiracy, as a quick visit to the site would show, is of course cowritten by many people (mostly law professors, but mostly not from UCLA). For instance, from Nov. 20 to Nov. 28 (just to choose the dates during which the Review of Books article was likely written), there were 49 posts, of which 12 were by me; I had a bare plurality, but Orin had 11, and Todd had 10. In all of November, Orin had 33% of the posts, and I had 20%. The author and his researchers didn't have access to these detailed reports, but they could easily have observed the general trend through a quick manual count of some sample of posts.

I say this not because it's a huge error -- it's not -- but because it inadvertently illustrates the limits of the mainstream media, and the value of blogs. The mainstream media make lots of mistakes, such as this one, and they also make a considerable number of significant omissions. For instance, the long New York Review of Books article not once mentions the word "libertarian," while at the same time treating libertarians, such as InstaPundit, as "conservatives." InstaPundit (the most widely read of the "conservative" blogs that the author mentions) does have seemingly "conservative" takes on many issues, but of course it's miles away from conservatives on many social policy issues. In a short op-ed, "conservative" as an umbrella term for conservatives and hawkish libertarians would be acceptable though not maximally enlightening. A longer piece, it seems to me, would have done better to acknowledge that while hawkish libertarians and conservatives agree on the free market and generally on foreign policy, they are allied rather than identical.

Likewise, while the article does acknowledge the popularity of Daily Kos, it doesn't mention that if one looks at Truth Laid Bear's traffic ranking rather than its link ranking, one sees that the aggregate traffic rankings of all the liberal blogs in the Top 20 (for instance) are substantially higher than the aggregate traffic rankings of all the "conservative" blogs in the Top 20. Wouldn't that have been more relevant than the link-count-based data -- or at least a useful counterpoint to the data?

And all this, it seems to me, helps show why "the conservative attack on the press" has been "particularly damaging." Whether blogs are trying to condemn "liberal bias" or simply point out mistakes, they -- much more than the media has been -- are media critics, who alert readers that they shouldn't believe everything they read. And this helps produce a healthy skepticism of the media, much as the media in past decades has produced a healthy skepticism of other institutions.

Ethics of Nobel Prize Nominations:

My post on the Nobel Peace/Literature Prize nominations of convicted but supposedly reformed multiple murderer Tookie Williams prompted some discussion: What about finding some professor who could nominate some ordinary Joe as a way to make a statement about how little the nomination means? This would be eminently possible, but would it be ethical?

The argument why it would be unethical: One's power to nominate comes with an obligation to actually vouch for the high qualities of the person being nominated. This is especially so as to academics, who (in my view, though not in everyone's) are supposed to be committed to candor in their scholarly work.

So if some professors want to nominate someone out-of-the-mainstream who they think really merits the prize, they are entirely free to do so, even if they know that most professors would bitterly disagree with the nomination (and even if the purpose is to annoy other professors, or to illustrate how easy it is to nominate someone). But I think that nominating someone when you don't sincerely believe that this someone merits the prize isn't quite right.

The argument why it would be ethical: There a parody exception or system testing exception to this obligation of sincerity, much as there is in some other contexts. For instance, we should generally be honest with our students, but that doesn't forbid us from saying something in class that's literally false but nonetheless clearly a parody or a joke — or for that matter, saying something that may be misleading but is aimed at getting the students to correct you (of course, if you promptly acknowledge this in the event that students fail to correct you).

Likewise, I think the classic Alan Sokal Social Text parody was permissible: Though a professor normally vouches for the accuracy of the material that he submits to a journal, the professor isn't acting unethically if the material is so clearly a hoax that any thoughtful reviewer would recognize it as such (and thus that the publication of the hoax is powerful evidence of how the review system is broken, at least at this particular journal). True, the argument would go, the insincere nomination isn't a real attempt to test the selection process — few people think that the nominee will actually get the prize. Nonetheless, it is a legitimate device for publizing the nature of the nomination process.

What's the right answer here? My temptation is to counsel against any facially dishonest conduct, especially by scholars, in a serious context (light-hearted gags aimed at entertainment, and unlikely to deceive anyone on an important matter, are a different story), at least unless the falsehood is an attempt to demonstrate some real failing in a review process. I don't think the open Nobel Prize nomination system is indeed a failing; the failing comes in some media outlets' misleadingly suggesting that the nominations are meaningfully screened, and I think the dishonesty to the Nobel committee would thus be unjustified. But perhaps I'm mistaken; I just mostly wanted to air what strike me as the strongest arguments on both sides.

Watch for Falling Rocks: The Associated Press reports that a "basketball-sized piece of marble moulding fell from the facade over the entrance to the Supreme Court, landing on the steps near visitors waiting to enter the building.":
  The marble was part of the dentil moulding that serves as a frame for the frieze of statues atop the court's main entrance.
  A group of visitors had just entered the building and had passed under the frieze when the stone fell at 9:30 a.m. ET.
  Jonathan Fink, a government attorney waiting in line to attend arguments, said, "All of a sudden, these blocks started falling. It was like a thud, thud."
  Maybe it's another trick they play on all the new Chief Justices. Thanks to Daniel Solove for the link.
Housing Market Update:

The market is beginning to tank, as this story about Washington, D.C., suggests, and as many other stories I've seen (good blog source here) from other cities (San Diego, Vegas, Boston, Miami, etc.) corroborate.

The media is falling down a bit on this one, however. A story a few days ago stated that "experts" say that price increases in the D.C. area will moderate to 4-5% growth next year. Very well, except that listing prices are already down 6% in the past two months (a much better indicator than old data like this). And given that the market has gone from a situation where bidding wars were common to a situation where many houses sell for under asking, the real decrease in selling prices is probably more like 10%.

(Note to D.C. condo investors: Last year, approximately five thousand condos were sold in the D.C. area. According to the story quoted above, 47,000 new condos are coming on the market in the next three years. You know what to do (I hope)!)

Tookie Williams and Clemency:

Proponents of the execution of Stanley "Tookie" Williams are making the argument that, no matter what Williams has done in prison, his conviction of an outrageous crime (a quadruple homicide) means that he ought to be executed. I disagree. Michelle Malkin and Tookie Watch both present extensive evidence about why Williams is a poor candidate for executive clemency. There is, at the least, some reason to wonder about the sincerity of Williams' alleged redemption. There is also the fact that he had never admitted his guilt for the homicides nor apologized to the victims' families.

That said, I think it is mistaken to say that a person who has committed a heinous crime which would merit execution or life in prison should always be subjected to such punishment. Consider, for example, the story of Alessandro Serenelli, who in 1902 murdered an 11-year-old Italian girl named Maria Goretti because she was resisting his attempt to rape her. As I've written elsewhere,

Unrepentant, Alessandro was convicted, and sentenced to 30 years in prison. [Since he was a minor, that was the maximum possible sentence.] In his eighth year of imprisonment, he had a vision of Maria. He saw a garden where a young girl, dressed in white, was gathering lilies. She smiled, and came near him, and encouraged him to accept an armful of the lilies. As he accepted them, each lily transformed into a still white flame. Maria then disappeared.

Alessandro's conversion was complete. When was released from prison after serving 27 years, his first act was to travel to Maria's mother to beg her forgiveness. He then found job as a gardener in a Capuchin monastery, a job he held for the rest of his life.

Along with 30 other witnesses, Alessandro testified as to Maria's sanctity during her Cause of Beatification. In 1950, she was canonized in a ceremony attended by a quarter million people, including her mother, the first mother ever to see her child canonized.

Marie Goretti is among the most famous saints in Italy; the story of Maria and Alessandro was the subject of one of the most-watched television programs in Italy in 2003.

It's possible to make arguments pro and con about whether Tookie Williams has enough in common with Alessandro Serenelli to be considered for clemency. I don't think so, but I can understand why other people might. My broader point is that even if (or, especially if), a person supports the death penalty or life without parole, it is possible that — at least in unusual cases — there can be post-conviction facts which might lead an executive with clemency power to decide to reduce the sentence for a prisoner guilty of an atrocious homicide.

A minority of Americans do not believe in the possibility of supernatural facts, and a great many Americans have an understandable skepticism about the convicted murderers whom Hollywood sometimes elects as special objects of sympathy. I hope, however, that public opposition to clemency for Stanley Williams does not degenerate into a broader attack on the practice of executive clemency, a practice which is a very ancient and honorable element of the checks and balances in a criminal justice system, and which has been greatly eroded in recent decades because governors and presidents fear being unfairly tarred as soft on crime.


Sunday, November 27, 2005

Federalist Society Student Symposium: On February 24-25, 2006, Columbia Law School will be hosting the 25th annual Federalist Society student symposium. This year's topic is "International Law and the State of the Constitution," and features panels by very distinguished judges and academics on the meaning of international law, the role of international law in constitutional interpretation, the role of international law in the war on terror, the executive power in foreign affairs, and the enforceability of the decisions of international tribunals in U.S. courts.
NPR on Alito and Machine Guns:

The November 11 edition of NPR's "All Things Considered" features a segment on Judge Alito's decision in Rybar, in which Alito followed the Supreme Court's Lopez precedent to write that a federal ban on machine gun possession was not a valid exercise of the federal power to regulate interstate commerce. Guests on the program were Eugene Volokh, Kristin Rand of the Violence Policy Center, Erwin Chemerinsky of Duke Law School, and me.