Saturday, May 13, 2006

Daughtry Never had a Chance:

There was lots of distress and amazement in the Idol-watching blogosphere after the audience voted Chris Daughtry off the show. Many folks, including Ann Althouse and some of the show’s judges, thought Daughtry was the favorite to win it all. I will admit, that after watching some of his performances with Redheadlaw7, I was impressed; that performance of Fuel’s Hemorrhage was hot.

Despite his stage presence and rock talent (and the fact that he’s a nice guy), I never thought Chris would win. My assumption is that those who vote on American Idol roughly represent those who listen to Top 40 radio (and drive the weekly Billboard chart). And I never thought an authentic rocker, like Chris, could ever win a majority of that audience. While the occasional rock ballad or party song may climb the singles chart, this sort of music is inevitably swamped by catchy (if not also syrupy) pop tunes.

Chris did well so long as his performances were strong, and there were enough remaining contestants to divide up the audience vote. As those left standing dwindled, it was only a matter of time before he was voted off.

Despite his loss, Daughtry will land on his feet. Rumor has it he is going to be the next lead singer of Fuel, because they were so impressed with his performances on the show. Whether or not this pans out, he has a promising rock career ahead of him.

When Will Iran Have the Bomb?--

The insightful (but sometimes unreliable), presumably relying on its sources in Israeli intelligence, has an interesting short post (dated May 13) suggesting that the US and Israel differ on estimates of when Iran will have the bomb. The US estimates 3-4 years, while Israel suggests 2 years:

Ten days before Ehud Olmert pays his first visit to Washington as Israeli prime minister, US intelligence is digging in its heels on its own timeline, which estimates that Tehran needs at least three to four years in stages to reach the point of being able to produce weapons-grade enriched uranium for a bomb and nuclear-capable ballistic missiles. The view there is that military action need not be considered before then.

This distancing from the Israeli estimate cut the ground in advance from the main theme Olmert proposed to raise in his talks with US leaders.

The message Washington delivered in advance of those talks was that Jerusalem would not be allowed to dictate American moves – diplomatic or military – on the Iranian crisis. The Olmert government would be best advised to line up behind Washington on this issue, as did the Sharon government in 2003 before the US invasion of Iraq. . . .

Olmert may be confronted in his talks with the president, vice president and secretaries of state and defense, with an American demand for a guarantee against any unilateral Israeli initiative on Iran without first touching base with Washington.

The Bush administration turned tough, according to DEBKAfile’s Washington sources, after receiving a briefing from two high-ranking US officials on secret talks they held with top Israeli government officials last week. The visitors, Stuart Levey, US Treasury Undersecretary for countering terrorist financing and a National Security Council Iran expert, found the Israeli government ill-informed and unfocused on the specifics of the Iranian nuclear program. They also reported that Israeli officials were not on top of the methods by which Iran finances its clandestine nuclear activities and feeds money to Tehran-sponsored terrorist, including the radical Hizballah and Palestinian Hamas.

I know Stuart Levey only slightly, but he strikes me as a serious and capable guy.

Failing to Learn the Lessons of United 93:

Prominent columnist Michael Kinsley writes:

So, what's the lesson [of United 93]? Is it to defy authority and follow your own instincts in an emergency? If so, we haven't learned it. For a while after 9/11 there was talk of changing the official policy regarding hijackings and to start encouraging the passengers to whack the hijackers with their pillows, and so on.... But today, airline passengers are still told at the start of every flight that in an emergency they should remain calm and follow instructions from anyone in a uniform....

Poking around the Web, I stumbled across the official "Hijacking Survival Guidelines" for employees of the U.S. Department of Agriculture. They say, "Stay calm and encourage others around you to do the same. Do not challenge the hijackers physically or verbally. Comply with their instructions. Do not struggle...."

So the U.S. government is kicking in millions of dollars for a memorial to the heroes of United 93. But meanwhile it is officially encouraging people not to do what these heroes did, should the occasion arise.

Should another hijacking occur, I think many passengers are likely to resist the terrorists regardless of what government bureaucrats might say. Flight 93 has entered the popular consciousness in a much more powerful way than any government-issued instructions could. Still, it is deeply troubling that the homeland security bureaucracy can't get this relatively simple issue right. If they can't even learn the most obvious lessons of the last major terrorist attack, I highly doubt that they can effectively prepare for the next one.

Larry Darby, Holocaust-Denying Atheist Alabama Attorney General Candidate,

is in the news again (thanks to InstaPundit for the pointer); for more on this fellow and his remarkable views about the Holocaust, our "Zionist-Occupied Government," and more, see here.

Falkenrath on the NSA Call Records Program: In today's Washington Post, Richard Falkenrath defends the NSA call records program. He has this discussion of its legality:
  There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA's alleged receipt and retention of such information is perfectly legal.
  The three companies reported to have supplied telephone records to the NSA also appear to be acting lawfully. The Telecommunications Act of 1934, as amended, generally prohibits the release of "individually identifiable customer proprietary network information" except under force of law or with the approval of the customer. But, according to USA Today, the telephone records voluntarily provided to the NSA had been anonymized. In addition, the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them. So it would appear that the companies have been acting not just in the public interest, but also within the law and without encroaching on the privacy of any of their customers.
  Three quick thoughts in response, taking these points in turn:

  1. I think it's right that the NSA did not act unlawfully by receiving and retaining the records. It may be a different picture if, as some stories have reported, the NSA was doing more than just receiving and retaining. But receiving and retaining alone doesn't violate the law. If that's all the NSA did, the issue is the liability of the phone companies, not the liability of the NSA.

  2. I don't know much about the Communications Act of 1934, so I can't speak to this issue. Can others fill us in on whether this argument is correct? (Preferably with actual legal support rather than mere conclusions.)

  3. Falkenrath is just wrong about ECPA. He states that "the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them." No, it doesn't. There is no "government request" exception to the ban on disclosure.

  I gather the exception Falkenrath has in mind is 18 U.S.C. 2702(c)(1), which allows disclosure if the government has a valid court order or subpoena under 18 U.S.C. 2703. But that exception only applies when the government is compelling the disclosure with a valid court order or subpoena. (There is also a curious exception allowing the government to get the names and phone numbers of suspected telemarketers in telemarketing fraud cases, but that's obviously inapplicable here.) News reports indicate that the government did not have a court order or subpoena or other legal order. Given that, the exception does not apply.
Another Reason to Try VOIP:

If the low price were not enough, Mark Kleiman suggests VOIP as an alternative to traditional telephone service for those of who don't live in Qwest territory. (Of course, if the non-Qwest telcos can be held liable for their cooperation with the NSA — a posibility Orin explores here — that would be a reason to reconsider one's investment portfolio as well.

UPDATE: Based on early polling, it doesn't seem too many people will follow Kleiman's advice.

SECOND UPDATE: Then again, these poll numbers suggest something different.

Related Posts (on one page):

  1. Another Reason to Try VOIP:
  2. I'm switching to Qwest:

Friday, May 12, 2006

Off to Argentina:

Fleeing from the hordes of rampaging federal judges angered by my suggestion that their salaries don't need to be raised, I am leaving for Argentina on Sunday. Blogging will be light (and possibly nonexistent) for the next 2 weeks.

However, for South American VC readers (perhaps there are at least a few!), I will be speaking at the Torcuato di Tella University law school in Buenos Aires on May 16 (5 PM) on judicial power and democracy and at the Latin American and Carribean Law and Economics Conference on May 19 (same location, 10:20 AM) on rational political ignorance. All are welcome to come! My presentations will be in English. The story of my academic career is that I only get invited to speak in those foreign countries where I don't know the local language.

Civil Liability and the NSA Call Records Program: Some bloggers are trying to figure out the potential civil liability of the telephone companies if they violated the Stored Communications Act by disclosing call records to the NSA without a court order. I would guess that a lawsuit has been filed already, and if it hasn't a bunch are coming soon. If a court finds that the telephone companies violated the Stored Communications Act, will they face liability in the range of billions of dollars?

  I have two quick thoughts for those that want to look into this in more detail. First, be sure that you consider the good faith exception to liability under the statute, 18 U.S.C. 2707(e):
A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703 (f) of this title);
(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) of this title permitted the conduct complained of;
is a complete defense to any civil or criminal action brought under this chapter or any other law.
  The language here is really unclear as a textual matter, but there are some cases on what it means in the analogous context of the Wiretap Act. When I looked into this when I was writing the DOJ manual, I found a big difference between how courts interpreted the exception in the context of government vs. civil action:
The relatively few cases interpreting the good-faith defense are notably erratic. In general, however, the courts have permitted law enforcement officers to rely on the good-faith defense when they make honest mistakes in the course of their official duties. See, e.g., Kilgore v. Mitchell, 623 F.2d 631, 633 (9th Cir. 1980) ("Officials charged with violation of Title III may invoke the defense of good faith under § 2520 if they can demonstrate: (1) that they had a subjective good faith belief that they were acting in compliance with the statute; and (2) that this belief was itself reasonable."); Hallinan v. Mitchell, 418 F. Supp. 1056, 1057 (N.D. Cal. 1976) (good-faith exception protects Attorney General from civil suit after Supreme Court rejects Attorney General's interpretation of Title III). In contrast, the courts have not permitted private parties to rely on good-faith "mistake of law" defenses in civil wiretapping cases. See, e. g., Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); Heggy v. Heggy, 944 F.2d 1537, 1541-42 (10th Cir. 1991).
  I'd need to re-read those cases to get better up to speed on this, but it's not obvious to me whether a court would see this as a government good-faith case or a civil good-faith case. It's kind of a mix.

  Second, from a practical perspective it's worth asking how far a suit would go given that the Administration would presumably try to stop the suit by invoking the military and state secrets doctrine (.pdf), as they did recently in a suit over telco involvement in the 1st NSA program. It's unclear how those claims will pan out -- either in the EFF case or in one filed against the telephone companies for this program -- but they are at least a significant roadblock to an attempt to recover damages against the telephone companies for the disclosure.

  (cross posted at
Careful With That Inference:

Folks, I'm glad you like reading the blog, and find my posts worth closely scrutinizing -- but there really is no need to overread between the lines. A commenter on an earlier post writes:

What's with the literary quotes today? Employing the maxims of implicature, we can infer that Eugene is trying to convey some relevant message. The analogy seems to be that we Americans are too unwilling to defend ourselves today.

So, Professor: is the mssage "we should be cheering the latest illegal NSA program" or "we should invade Iran"?

The commenter, I'm afraid, is inferring what I am not implying. I started reading Rebecca West's chapter because I liked the "It was good to take up one's courage again" quote that someone had posted on another blog months ago; and it did seem linked to the posts about courage, which were in turn triggered by the Ayaan Hirsi Ali story. I blogged the first set of quotes because of the link to courage. I blogged the second quote because I ran across it in the same reading session, because it struck me as eloquent and moving, and because I am pretty interested in history. I had hoped that my readers would be moved by it as I was -- always a good reason, I think, to pass along quotes.

But if you absolutely must try to infer some deeper message -- and, I stress again, I'm flattered that you'd want to, but I don't see why you should -- consider the possibility that, contrary to the (often accurate) stereotype of Americans, not all of my messages are about Americans.

Perhaps the West quote is apt about certain aspects of European society today; we've all heard things said that suggest it might be. Or perhaps not. If you as a reader find that resonance, great. If not, you might just find the quote moving as a commentary on a trait that sometimes arises in human nature, for instance in the era or eras about which West was writing.

Related Posts (on one page):

  1. Careful With That Inference:
  2. "The Idea of Self-Preservation Was as Jealously
"The Idea of Self-Preservation Was as Jealously

Guarded from the Young as the Facts of Sex Had Been in Earlier Ages": One more quote from Rebecca West, writing about the English after World War I (Black Lamb and Grey Falcon (1941), Epilogue, p. 1122, paragraph breaks added):

The sense of guilt which is born in every man, and is willing to operate without reasonable cause, had here abundant food, and for long we had been sick with masochism.... [Many Englishmen] had lost all sense that it is sometimes necessary to fight for one's life; and many children born in the decade after the Great War can never have heard a word from their parents and teachers which suggested that their country had or could have been actuated by any motive except stuipd and credulous jingoism in taking up arms in 1914.

The idea of self-preservation was as jealously guarded from the young as the facts of sex had been in earlier ages. Thus England ... put itself in a position of insecurity unique in history by raising a generation of young men to whom the idea of defending their nation was repugnant not so much by reason of the danger involved (though indeed they were now often instructed in fear as in other times boys had been instructed in courage) as because they could not believe it would in any circumstances be necessary.

Since every day Germany and Italy were formulating in more definite and vehement terms that they meant to vanquish and annihilate England, it was amazing that it should have been possible to enclose them in the magic sphere of this illusion. It would, of course, be comprehensible had they been drugged by sensual indulgence or grown careless of honour; bet never had the mass of the people been more sober, and law-abiding, and restrained, never had they been so anxious for honourable dealings between class and class and between nation and nation.

The fault was not decadence but the desire for holiness, the belief in sacrifice, and a willingness to serve as the butchered victim acceptable to God.

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  1. Careful With That Inference:
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Judicial Pay Part II - The Non-Salary Benefits of Being a Federal Judge:

In my last post, I argued that the quality of the federal judiciary is not suffering from the fact that most judges could make far more money in the private sector. Why would outstanding lawyers be willing to become federal judges in spite of the lower pay? The answer is that being a judge has tremendous non-salary benefits relative to private practice. When these are taken into account, the total compensation of judges (salary + fringe benefits + nonpecuniary benefits) does not seem inferior to that of top private lawyers. Here are some of the relative benefits of being a judge:

I. Power and Prestige.

Federal judges have tremendous power and prestige. Whether or not the judiciary should have as much power as it does, there is little question that judges have considerable influence over law and public policy. Few if any private sector lawyers can even begin to compare.

Being a judge is also generally viewed as more prestigious than being a partner at a big law firm, even one who earns millions of dollars. Few doubt that John Roberts increased his level of prestige when he left his job as a partner Hogan & Hartson (one of the nation's best law firms) to become a judge on the D.C. Circuit.

II. Shorter Hours and Better Working Conditions.

As a general rule, judges work far fewer hours than private sector lawyers. This is not to say that judges are a bunch of lazy slackers. Far from it. But few work the 80 or 90 [update: 70 to 80 is probably more accurate] hour weeks that are routine at big law firms. Unlike private sector lawyers, judges also do not have to answer to clients and do not have to cancel vacations or make other painful, sudden changes in their schedules to accomodate client needs or those of senior partners in the firm.

III. More Interesting Work.

Obviously, this is in the eye of the beholder. However, it is fair to say that many federal judges often get to work on extremely interesting constitutional and statutory cases. Even the most highly paid private lawyers often have to spend a large proportion of their time working on relatively boring issues.

This is not to say that all lawyers would find judicial work more interesting than private practice. Tastes differ. But the key point is that a large number of top lawyers surely do find judicial work more stimulating and that is enough to ensure a high quality judiciary.

IV. Job Security.

It is perhaps an obvious point, but federal judges have virtually absolute job security for life. Even the best private law firms take the risk of going bankrupt or suffering a sudden decline in profitability that could lead to layoffs.

V. Extremely Generous Pension Plans.

As noted in my previous post, a federal judge who has reached the age of 65 and served at least 15 years can retire at full pay. Very few if any private sector law firms are equally generous.

I realize, of course, that many of these same points (except the one about power!) could be made about law professors. They help explain why our salaries are lower than those of law firm lawyers too. Fair enough. For what it's worth, I don't think that our pay is systematically inadequate either. But here at GMU, it is too low, dammit:)!

UPDATE: For the benefit of non-lawyers (and fearful law students!), I should make it clear that the 70-80 hour work weeks I referred to are prevalent only at big firms in several major markets. Lawyers in secondary markets or at smaller firms typically work fewer hours (though still quite a lot). On the other hand, these other types of lawyers typically earn lower salaries than federal judges do. According to the US Department of Labor, the median lawyers' salary (as of 2004) is just under $95,000. I am NOT arguing that judges should be paid the same salary as the median lawyer. But it is important to understand that those lawyers who earn far more than the median (and especially those who earn far more than federal judges) typically work far longer hours than judges do.

Related Posts (on one page):

  1. Judicial Pay Part II - The Non-Salary Benefits of Being a Federal Judge:
  2. Are Federal Judges' Salaries too Low?
"Let Nobody Belittle Them

By Pretending They Were Fearless":

It was good to take up one's courage again, which had been laid aside so long, and feel how comfortably it fitted into the hand.
So wrote Rebecca West, writing in the Epilogue to Black Lamb and Grey Falcon p. 1125 (1941), of the English right after the fall of France (thanks to Richard Aubrey for first pointing out this quote). Yet important too is what follows a few pages later (p. 1130) (paragraph break added):

Most [Londoners, after and during] the fall of France believed, and rightly, that they were presently to be subjected to a form of attack more horrible than had ever before been directed against the common man.

Let nobody belittle them by pretending they were fearless. Not being as the ox and the ass, they were horribly afraid. But their pale lips did not part to say the words that would have given them security and dishonour.

Hillary, in High Curmudgeon:

As quoted in the New York Post — "Kids, for whatever reason, think they're entitled to go right to the top with $50,000 or $75,000 jobs when they have not done anything to earn their way up .... A lot of kids don't know what work is. They think work is a four-letter word.... We've got to send a different message to our young people. America didn't happen by accident. A lot of people worked really hard. They've got to do their part, too."

Kids these days! Why, when I was a kid — walk to school — snow, six feet deep — both ways — shoveled manure for the pennies that I could find in it — grumble grumble grumble — o tempora, o mores . . . .

(By the way, I agree with the sentiment starting with "America didn't," and for all I know she's right about kids' attitudes these days — I just thought it was funny.)

UPDATE: Commenter Riskable writes:

I'd just like to point out a simple fact that everyone else seems to have missed: One has only to point a finger at the preceding generation to find exactly who is to blame for "kids these days."

More Thoughts on the Legality of the NSA Call Records Program: We now have a slightly better idea of the factual and legal issues surrounding the newly-disclosed NSA Call Records program, and I thought I would offer a second analysis that is more focused and more factually informed than the one I posted this morning. My still-very-tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception.

  First, let's update the facts. It now looks relatively clear that the NSA was not directing the telephone companies to conduct any particular monitoring on the NSA's behalf. Rather, NSA officials were persuading the telephone companies to voluntarily disclose their call records to the government. In other words, the government wasn't actually doing the monitoring, but instead was encouraging the telephone companies to disclose call records to them that the telephone companies already had collected.

  In light of those apparent facts, the key issue to me becomes whether the disclosures were permitted under the Stored Communications Act, and specificially 18 U.S.C. 2702. (For a "user's guide" to the Stored Communications Act, see here). Telephone companies are providers of "electronic communications service to the public" under the Act, and the Act regulates when providers can disclose non-content records of account information to the government. The ban is in Section 2702(a)(3):
[A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . ) to any governmental entity.
Of the possible exceptions to the statute, three are most likely to be relevant. They permit disclosure under the circumstances listed in 18 U.S.C. 2702(c), as amended by the Patriot Act renewal of 2006:
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]
(Note that the link to the Cornell site's text of 2702 does not have the latest version of the exceptions, as it was last updated in the fall of 2005 and the exceptions were amended in March 2006. I was unable to find the new version on a website, and ended up taking it from Westlaw.).

  Let's take each of these exceptions in turn.

  (1) The first exception permits disclosure if the subscriber consents. There are no cases interpreting eactly what consent means in 2702(c)(2), but like many of the exceptions in the SCA it is clearly a copy of an analogous exception in the close cousin of the SCA, the federal Wiretap Act, 18 U.S.C. 2510-22. We do have lots of cases on what consent means in the context of the Wiretap Act, so those cases presumably create the applicable standard here. The basic rule: Consent means that the user actually agreed to the action, either explicitly or implicitly based on the user's decision to proceed in light of actual notice. Here's what the First Circuit said on this in United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995):
Keeping in mind that implied consent is not constructive consent but 'consent in fact,' consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance from surrounding circumstances that the party knowingly agreed to the surveillance. We emphasize that consent should not casually be inferred, particularly in a case of deficient notice. The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice.
  Did users consent to the disclosure under this standard? The Washington Post reports that government lawyers seemed to think so, based on small print in the Terms of Service of the telephone service customer agreements:
One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances."
  This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror. It reminds me of the argument that a DOJ lawyer once tried to make that monitoring prison phones was allowed because language in the Code of Federal Regulations clearly notified prisoners that their phones would be monitored. According to the lawyer, the notice in the fine print of the CFR was sufficient to make the monitoring consensual. Judge Posner rejected the argument, calling it "the kind of argument that makes lawyers figures of fun to the lay community." United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In light of these cases, I think the consent argument is weak. (Incidentally, if you look up Daniels, note that Posner incorrectly states later in the opinion that the Second Circuit accepted such a weak notice argument. If you read the Second Circuit case, it is clear that the CA2 did no such thing and that Posner was just being sloppy.)

  (2) The next possible exception is disclosure "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service." This is known as the provider exception, and is also a copy of an analogous exception from the Wiretap Act, 18 U.S.C. 2511(2)(a)(i). You can read all about this exception here: basically, it gives providers rights to disclose information to the government to help the providers combat illegal service and unauthorized use of the network. It seems pretty clear that this doesn't apply: The cases make clear that the provider exception exists to further provider interests, not government interests.

  (3) The third and final exception is the emergency exception, which permits providers to disclose "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." At the outset, it's worth noticing something very interesting about this language: It is almost brand spanking new. The language that passed as part of the Patriot Act in 2001 allowed disclosure only when "the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." This was the language in place from October 2001 until March 2006. Did the phone companies have such a belief under the 2001-06 language? I gather they had a reasonable belief of danger, but I don't know of a reason to think that they had a reasonable belief of "immediate" danger. If this was a program ongoing for several years, then it's hard to say that there was a continuing reasonable belief of immediate danger over that entire time.

  As noted above, though, the Patriot Act renewal passed in March 2006 changed this language. And it did so in a way with potentially important implications for the legality of the NSA call records program. The new exception states that disclosure is permitted "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an "immediate" danger. I wouldn't be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program. (Or perhaps not, come to think of it: Does the new language suggest that the information disclosed needs to relate to the emergency to be covered? What if the provider doesn't know what information relates to the emergency?)

   More tomorrow, I hope.

  (cross posted at
Are Federal Judges' Salaries too Low?

One thing that federal judges across the political spectrum agree on is that they deserve a raise. According to Chief Justice John Roberts' 2005 Year End Report on the Federal Judiciary, low pay is a "threat to judicial independence" because "[i]f judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life." This debate will no doubt be rekindled by superstar Judge J. Michael Luttig's recent resignation to take a job as General Counsel at Boeing. Indeed, Judge Luttig cited the need to pay for his children's college tuition as one of several factors behind his decision.

I don't blame judges for wanting higher pay. But there is little evidence that the federal judiciary is losing good people because the pay is too low. Currently, federal judicial salaries are as follows:

Chief Justice of the Supreme Court: $212,000

Associate Justice: 203,000

Court of Appeals Judge: 175,100

District (trial) Judge: 165,200

Judges of specialized federal courts earn salaries comparable to those of appellate and district judges (see link above). At these pay levels, few federal judges are likely to be living from hand to mouth. Even so, it is certainly true that most of them could earn far more money in the private sector.

But it is not true that the federal judiciary is losing any significant number of good judges as a result. Although I do not have systematic data on this, anecdotal evidence and personal experience strongly suggest that there is no shortage of outstanding lawyers who would love to become federal judges, including many who would have to take a big pay cut as a result. Brett Kavanaugh (current D.C. Circuit nominee who was a partner at a major firm before entering government service) and C.J. Roberts himself (a partner at powerhouse D.C. law firm Hogan & Hartson before becoming a circuit judge) are two of many examples.

What about the danger of good judges leaving the federal judiciary prematurely in order to make money? Here, we do have some data. Chief Justice Roberts' report (link above) indicates that 92 federal judges left the bench between 1990 and 2005. Roberts claims that this is an alarmingly high number. However, there are currently some 678 federal district judges, 179 circuit judges, and 9 supreme court justices, for a total of 866. Justice Roberts' figures indicate that about 6 to 7 of them leave the bench each year. That is less than a 1% annual attrition rate (even if we factor in the fact that the judiciary was smaller in the 90s than today)! Very few, if any, other occupations have such low turnover. This suggests that being a federal judge is an extremely attractive job, notwithstanding any financial hardship.

Moreover, the above analysis assumes that all 92 judges resigned because of dissatisfaction with pay. As Roberts notes, however, 71 of them resigned only after reaching retirement age (he actually emphasizes the 21 who resigned early, but the other side of the equation is surely more significant). It is plausible to assume that many if not most of these resignations were due to illness, old age, or a desire to enjoy one's retirement years in peace. Federal judges who have reached the age of 65 and have served at least 15 years have the right to retire while still retaining their full salary. This creates a strong incentive to retire and cash in once the age of 65 is reached.

Roberts does note that 59 of the 92 judges who resigned went into private practice, which is a point in favor of his argument. However, even if all 59 left for financial reasons (an implausible assumption), this is still only a tiny fraction of the total number of judges (about 0.7% per year). Finally, it is worth noting that I have assumed that the Chief Justice was only counting Supreme Court, court of appeals, and district judges. If the figure also includes resignations by judges of specialized courts, then it would be a much smaller fraction of the total. Unfortunately, the report is unclear on this point.

Despite the Luttig resignation, there is little if any evidence that the quality of the federal judiciary is suffering because pay is too low. Nevertheless, there are two potential caveats to this conclusion. First, it is theoretically possible that a large pay increase would attract at least a few more superstar types comparable to Luttig. If so, it might be worth it, given the disproportionate impact a superstar can have on the quality of judicial precedent. However, I am somewhat skeptical that this conjecture is correct. Second, I think there is a good case for making judicial pay inflation-adjusted and for giving cost of living adjustments to judges located in particularly expensive areas such as New York or San Francisco.

Update: My original post missed a small pay increase for federal judges enacted in January of this year. The salary figures in the post have been edited to reflect the changes. Hat tip to Benjamin Shatz.


Thursday, May 11, 2006

Good Books About the Fall of the Soviet Empire:

I read and enjoyed David Remnick's Lenin's Tomb, but I was wondering if there were other good ones, especially ones that covered slightly different territory (such as what happened in Eastern Europe). If you have some recommendations, please post them in the comments. Thanks!

Gas prices are higher, and that's a good thing:

Judge Posner has a typically provocative view of the recent spike in gas prices. He even suggests that if the price doesn't stay high, gas should be taxed more to keep it high.

From the broad national standpoint, we should welcome high gasoline prices because it is in the national interest to reduce our consumption of gasoline, and high prices will do that, dramatically so in the long run when more substitution is possible. The burning of gasoline in vehicles creates pollution and emits carbon dioxide that contributes significantly to global warming; and curtailing driving in order to reduce the consumption of gasoline would alleviate traffic congestion. Furthermore, a large part of the world's oil supply comes from nations such as Venezuela, Nigeria, Iraq, Iran, Saudi Arabia, and Russia that are actually or potentially unstable, hostile to the United States, or both, and it would be prudent to reduce our dependence on such suppliers. And in fact output has fallen recently in the first four nations in the list, which has contributed to the price spike.

But the best way to keep gasoline prices high may be through heavy taxes, which might actually reduce the cost of oil and hence the incomes of the oil-exporting nations (which is in the U.S. national interest to the extent that those nations are indeed hostile, as Iran notably is). If, by increasing the price of gasoline, taxes reduce consumption, the price of oil will decline because the average cost of oil increases with the quantity produced. Just as an increase in demand will cause higher-cost oil to be produced--oil that would not have been economical to produce when the market price was lower--so a reduction in demand will cause that higher-cost oil to be withdrawn from the market and so the average price of oil will fall. In effect, income of the producing nations will be transferred to the consuming nations in the form of gasoline taxes imposed by those nations.

Judge Posner acknowledges in a follow-up post that high gas prices maintained through more taxation will disproportionately hurt people of moderate income. But, he suggests, that problem could be dealt with by phasing in the taxes and by making gas taxes revenue-neutral through tax relief targeted to those consumers.

Judge Posner's analysis highlights an irony in the current political atmosphere. On the one hand, the Bush administration has suffered relatively little in public opinion for a number of problems over which it has substantial control: indefinite detentions of American citizens without charge or trial, the abuse of prisoners, warrantless domestic surveillance, and the extraordinary growth in the federal deficit, to name a few. On the other hand, the Bush administration has suffered grievously in public opinion for rising gas prices, a trend it cannot and — if Judge Posner is right — should not reverse.

Judge Issues Temporary Restraining Order Barring the Operation of a Web Site:

According to the Danville Register & Bee,

Jerry and Melissa Guyles -- the parents of a recently expelled cadet -- [were using] their Web site, ... to publicly question Hargrave president Wheeler Baker’s leadership and his handling of their son’s dismissal.

Hargrave sued for libel, and a federal judge issued a temporary restraining order, pending trial, enjoining the Guyleses (among other things) from:

a. continuing to operate the website and/or from creating any other websites which disparage, defame, vilify, and/or contain false statements concerning Baker, Hargrave, and/or its administration, faculty, staff, and students;

b. continuing to solicit, contact or otherwise communicate with any parents or guardians of current, former, or prospective Hargrave students or any other persons or entities for the purpose of interfering or continuing to interfere with Hargrave's contractual relationships and/or expectancies; ...

Seems to me like a quintessential unconstitutional prior restraint -- a court order that's entered prior to a finding on the merits that the speech is constitutionally unprotected (in this case, consisting of false statements of fact). The government may indeed sometimes impose liability after a trial on the merits that finds that statements are false. In some situations, it may even be able to impose criminal liability after a trial on the merits that makes such a finding. But the prior restraint doctrine generally bars the court system from suppressing speech before any such finding, especially when the court order goes far beyond false statements -- for instance, statements that merely "disparage" the school, or that communicate opinions or true statements aimed at persuading people not to deal with Hargrave.

I can understand why the court would want to issue a temporary injunction pending a trial on the merits, in case the trial ultimately does find that the speech is unprotected. But as the Supreme Court held in Vance v. Universal Amusement Co. (1980), such temporary restraints on speech -- which may be entered based on a mere finding of likely success on the merits, following a highly truncated factfinding process -- are generally unconstitutional.

Many thanks to Becky Dale for the pointer to this case.

How The Latest NSA Surveillance Story Is Different From the Last One: Some blogs are suggesting the latest NSA domestic surveillance story is old news, and that the MSM is just pretending that this is a new story. See, e.g., Newsbusters, which is dedicated to "exposing and combating liberal media bias." I think a bit of clarification might be helpful here.

  As I see it, this story is really new, and is pretty different from the earlier NSA domestic surveillance stories from December and January. The earlier stories involved governmental tapping of telephone calls and e-mails when one party was outside the United States. That is, they involved the NSA recording the telephone calls and e-mails of people inside the United States from switches inside the United States when the other participant was outside the United States. Further, it seems that the government sharply limited that monitoring to a few hundred or a few thousand people, and only tapped calls when it had something like probable cause.

  Today's story is different. As best I can tell, it involves telephone companies disclosing account records of how their domestic customers were using their phones. In other words, the phone companies were disclosing lists of numbers dialed for domestic telephone subscribers to the NSA, rather than letting the NSA install switches and listen in on international calls. Further, they were doing this on a much larger scale: the disclosures were not pursuant to probable cause or reasonable suspicion. We don't know all the facts yet, but this looks new to me: It's non-content instead of content, broad scale instead of narrow, stored instead of real-time, provider disclosure instead of government tapping, and domestic accounts instead of intercepting traffic with at least one party overseas.
Right-Wing P.C.:

Reason's Jesse Walker documents the growth of political correctness on the Right.

When I say "political correctness," I'm referring to an attitude, not an agenda. In some hands the term is a broad synonym for censorship and groupthink, qualities that have always been common across the political spectrum. Other times it devolves into a vague smear-term for anything left of center. I'm using it to describe a particular political posture: one that treats identity politics not just as an ideology but as a trump card, that maintains a rigid orthodoxy while regarding itself as subversive, that uses a series of contrived outrages to feed a bureaucratic machine. Each of those elements has infected parts of the right.

Write-On Competitions and the Bluebooking/Cite-Checking/Editing Test:

Some law review competitions involve both a writing assignment and a bluebooking/cite-checking/editing test. Others give you just a writing assignment, but give considerable weight to the bluebooking and proofreading of the paper. Generally the substance, the organization, and the writing style are given more weight than the more technical bluebooking, cite-checking, and proofreading. But the latter are often given a good deal of weight, too, and for good reason: Bluebooking, cite-checking, and proofreading will be a huge part of your job as a law review editor, and the law review is naturally looking for people who are good at that, and (more broadly) who are careful, meticulous, and hard-working.

But here's the twist: The substantive evaluation of your paper will inherently be subjective. You might have a great argument, but if the readers take a different view, they may not evaluate it as positively as they should. That's true for professors -- the grading of essay exams is often quite subjective (not by any means random, but subjective). And it's even more true for law review write-on grading, given that the essays are usually split among different teams of several readers, so that different essays are graded by different people.

On the other hand, what bluebooking, cite-checking, and proofreading errors you caught (or made) is more objective. If you do really well on this, then you can insulate yourself considerably from the vagaries of the more subjective grading of the substance.

So if you think you can be good at the technical stuff -- if you have a careful eye and a meticulous temperament, and can catch most errors if you have the time (and if you've familiarized yourself with the Bluebook) -- then invest some time into the technical part of the test.

Naturally, you should still not bomb the substantive part, so don't let your bluebooking completely distract you from your writing. But if you think you can be good at bluebooking, work hard at it. That way, even if the readers are for their own idiosyncratic reasons not wowed by your substance (brilliant substance, of course, but brilliance so often goes unappreciated!), they will be wowed by your objectively great performance on the technical portion.

Congrats to Dan Jordan:

My law school classmate Dan Jordan has just been nominated to serve on the United Staes District Court for the Southern District of Mississippi. Congratulations to Dan, a great guy and a great lawyer, and who will make a superb judge.

ACLU and the Conflict Between Antidiscrimination Laws and Civil Liberties:

That's the focus of Chapter 12 of You Can't Say That!, and I recently came across an interesting article discussing debate over the topic within the ACLU way back in 1972. (I'm supposed to be on a blogging break, but I'm packing and I'm afraid I'll lose this article in the shuffle.) It's from the June 14, 1972, Washington Post, and it's entitled "Top ACLU Lawyer Here Agrees with Club Ruling":

[D.C. chapter counsel] Ralph Temple said yesterday that he approves of Monday's Supreme Court ruling that a genuinely private social club may practice racial discrimination although it has accepted a state liquor license. He said there are sharp differences on the issue among civil libertarians "The right of a private group to not be punished because they enjoy their right of private association" must be upheld. ... Allison Brown [an attorney handling a case for the ACLU against a private community swimming pool that discriminated] added that he disagrees sharply with Temple's approval of Monday's Supreme Court decision.

Wallace and Luttig:

I am really quite surprised by the ABA's rating of Michael Wallace for the 5th Circuit. During my time teaching at Mississippi College School of Law I had the opportunity to gain some degree of acquaintance with Mike through various Federalist Society activities and he always impressed me as smart, even-tempered, and with a "judicial demeanor." His resume--Rehnquist, Phelps Dunbar, etc.--speaks for itself. In fact, it was almost 10 years ago that I taught in Mississippi, and during that time it was simply assumed that Wallace would inevitably ascend to the 5th Circuit when there was an opening and he was ready to do so. In my experience, even at that time he was widely regarded as one of Mississippi's leading attorneys. The whole imbroglio with Judge Pickering set him back a few years, but rarely have I encountered such an inevitable Court of Appeals nominee during my career.

On that basis, I am baffled by what the ABA could have found to rate him unqualified. Is there some public pronouncement that provides a rationale for their decision? Can anyone shed any light on what the ABA was thinking? I haven't been able to find anything that states the basis for the ABA's decision.

As for Luttig, I'm not as surprised by that news as others seem to be. Others, such as Orin, are and several of his commenters indicate that they don't really understand what is going on here. Judge Luttig too is an acquaintance/friend and one who I hold in the highest regard as a man and a judge. I haven't talked to him about his decision, though, so like other bloggers, I'm simply speculating. I suspect that disappointment over the Supreme Court certainly has something to do with it and does boredom, as others have speculated. I was once talking to a fellow law professor about the life of a judge and she said, "Could you imagine red brief-blue brief for the rest of your life?"

It has also been my impression that being a VP-GC of a major corporation would be an extremely interesting and exciting job. Less so after SOX, I suspect, but still quite interesting. Off the top of my head, I can't think of anyone who I know who has left a law partnership to become a GC of a major corporation and has gone back. In addition, I know that several of Judge Luttig's friends and contemporaries also have moved into GC positions and have prospered both financially and professionally in recent years. The range of business, legal, and management issues that such a job brings really seems like quite an interesting mix with substantial perks. In that sense, his decision is actually less puzzling to me than was Michael Chertoff's decision to leave the Third Circuit to go to DHS or even Ken Starr's decision long ago to leave the DC Circuit to become Solicitor General, both of which are/were temporary positions.

Luttig will be back "in the arena" of making business and legal decisions too, which is something that many people enjoy and find that they miss in a more cloistered atmosphere. One of my senior colleagues at Alston & Bird was one of the nation's leading bankruptcy attorneys and had been offered a teaching position both at the outset of his career and later at the end of his career (just around the time I left practice as a junior associate to enter teaching). At both stages of his career, he passed. So when I told him that I was leaving to teach he said to me, "As you know, I've thought about teaching. But I finally decided that I enjoy the courtroom and the boardroom too much to spend the rest of my career in the classroom." By which he meant that he preferred to tackle the day-to-day challenges and issues that arise in the real-life practice of law (at least at his very high level) to a more passive and routine sort of life.

So, it appears that the right situation seems to have come along at the right time. From that perspective, I'm not sure that there are any more general lessons to read into his decision regarding judicial pay or anything like that.

Gettysburg College Joins Antioch College:

The Foundation for Individual Rights in Education reports on the Gettysburg College Sexual Misconduct Policy, which says:

Sexual Misconduct is defined as a threat of a sexual nature or deliberate physical contact of a sexual nature without the other person's consent. Examples of such behavior include, but are not limited to, 1) deliberate or reckless threat, actual or implied; 2) physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging, and kissing; 3) physical contact of a sexual nature that results in reasonable apprehension of a sexual assault or physical harm; and 4) coerced sexual activities, including rape.

All sexual interaction between any two people must be consensual. Each individual has a responsibility to obtain consent before engaging in sexual interaction. Consent is defined as the act of willingly and verbally agreeing (for example, by stating "yes") to engage in specific sexual conduct....

So verbal agreement is required before any "sexual interaction," presumably including lovers (or spouses) of long standing. What's more, if "sexual interaction" refers back to "deliberate physical contact of a sexual nature" (as it seems to), then you'd need a verbal agreement before any "touching," "hugging," or "kissing" that is "of a lewd type."

The requirement of consent is of course completely proper -- but the requirement of verbal agreement strikes me as vastly overbroad, given the way perfectly decent and consenting adults routinely behave.

By the way, Antioch College still has its infamous policy, which says that "Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct.... Consent is required each and every time there is sexual activity." Do you verbally agree to have sex each time you have consensual sex with your spouse or lover?

By the way, the Antioch policy also says that

The SOPP is violated whenever there is an incident of non-consensual sexual conduct on the Antioch College campus, during an Antioch College sanctioned event, or between two Antioch College students regardless of location. This may include but is not limited to:

* Sexually based gestures ...
* Sexually based forms of non-consensual communication, whether verbal, written, electronic, or telecommunication based ...

So "non-consensual" "sexually based gestures" are prohibited. So are "sexually based forms of non-consensual communication," which leads to the question: How can you ask someone for permission to engage in sexual activity, before you've gotten their consent? Wouldn't the request, at least if it's express enough to yield an adequate consent to the activity (remember that "All parties must have a clear and accurate understanding of the sexual activity" for the consent to take place), itself be a "sexually based form[] of non-consensual communication"? Or do you need to ask first, "Do I have your consent to clearly and accurately describe to you the sexual activity to which I will then ask you to consent?"?

There's no doubt that nonconsensual sex is a serious problem. It's just that these codes aren't, it seems to me, a serious solution.

President Bush's Statement: President Bush made a brief statement on the latest NSA surveillance story today. The New York Times has the transcript of the statement here.
What I Learned This Spring Vacation -- Doing Things More Than Once:

As I mentioned in the post on my odd vacation-time activities, I've now realized that a few of the suggestions I give in my Academic Legal Writing book aren't as sound as I thought they were. I'll naturally revise things accordingly in my third edition, but for now let me pass this along as a sort of online update.

Courage, Shame, and Practice:

On the Ayaan Hirsi Ali thread, one commentator asked me:

[W]here did the Volokh family just move to? If it's not a gated community, maybe you and your family could bear the risks and invite her to live next to ... you and yours.

We're always braver when it's someone else you want to share the risk with you, based on your own actions, not your neighbors or friends.

That's a fair question, it seems to me: What would I do if Ayaan Hirsi Ali -- or Salman Rushdie, or a Muslim who's gotten death threats from anti-Muslim bigots, or a black activist who's gotten death threats from Klansmen -- moved next to me?

Well, I hope I'd be ashamed to complain, much less try to demand that the neighbor be evicted. Would I realize that Ali's presence, for instance, creates some extra risk for me and my family? Sure. Would I feel some fear because of that? Sure.

But I'd hope that her presence would impress me with her courage, and would move me to at least try to feign equal courage, rather than trying to hound her from the neighborhood. I hope that I'd be embarrassed to say, to my neighbors and eventually to my sons, "Someone who was very brave, and brave in the service of trying to help our nation and help mankind, took tremendous risks. And to avoid taking far lesser risks, I turned against her."

Protecting one's family is a very great thing. Protecting oneself is generally good, too. But, no, protecting one's family and oneself against all risks can't be the highest goal, if our nation, the values we cherish, and ultimate we ourselves are to survive.

We praise the brave and we condemn those who -- however rationally -- conspicuously display absence of bravery precisely to reinforce this notion. We recognize that fear is human, and often rational. We recognize that each of us, if tested, might fail. But at least we should ask, I think, for a certain degree of chagrin about certain kinds of fears, for the decency to be embarrassed about them and to keep quiet about them rather than acting on them by trying to evict a courageous neighbor.

Finally, let's put things into a bit of perspective. The risk to the neighbors in the Ali case isn't zero, but it isn't a tremendous risk, either. It's not having to go to war against an invader. It's not joining the Resistance. It's not becoming a dissident against a tyrannical government. It's not being Gary Cooper in High Noon.

It's not rushing the cockpit of a hijacked plane (which, even if it might be rational on a personal cost-benefit analysis, requires more presence of mind and ability to overcome panic than I suspect most of us could muster). It's not even speaking out yourself against an oppressive and violent ideology. Look, I understand how appalling those risks are. I sympathize with those who silently try to avoid running them.

But dark days are here, and darker still are ahead. Each of us may one day indeed face a terrible test. If we don't perform the small acts of bravery, how will we ever be able to perform the large ones? If we don't try to make a habit of courage -- if we don't seize, in our mostly safe and comfortable lives, the opportunities to be brave -- how can we make sure that our courage will be there when we really need it?

I'm switching to Qwest:

More from the USA Today story on government domestic surveillance that Orin mentioned earlier today:

One major telecommunications company declined to participate in the program: Qwest.

According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained.

Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.

All I can say is, at least someone is apparently resisting the administration's seemingly bottomless claims of executive power. Qwest is now improbably at the vanguard of protecting civil liberties, ahead of the other two branches of the federal government. The administration may decide to punish Qwest, as the story suggests, but perhaps the market for telecommunications services can reward the company.

For the time being, I'll leave in Orin's very capable hands an analysis of whether this particular domestic surveillance program is legal. We have only sketchy allegations from unnamed sources at this point, so it it will be very hard to assess the legality of the program, if it exists at all. For reasons I hope to give in the not-too-distant future, I think the NSA program revealed last December is unconstitutional. I'm less certain about the legal/constitutional standing of this program, since it doesn't appear to involve warrantless eavesdropping on domestic calls.

I would not be surprised if the broad outlines of the USA Today story are true. Nor would I be surprised to learn that there are other such secret "programs" authorized by this administration, including some not even revealed on a confidential basis to members of Congress.

Legal or not, based on what we know now the program seems very hard to justify as a security measure in light of its actual and potential damage to Americans' privacy. Perhaps the administration can offer a defense of the program that makes sense, but so far it feels no need to explain itself to anybody. In the balance between civil liberties and security — which I fully agree has to be adjusted toward the latter in a post-9/11 world — the administration has continually opted for overkill. There is such a thing as security overkill, just as there is such a thing as preserving trivial liberties at the expense of protecting lives. If collecting data on every single call made by every single person in the U.S. every single day for a dubious enhancement of security does not count as overkill, well, the administration will soon show us what does.

Related Posts (on one page):

  1. Another Reason to Try VOIP:
  2. I'm switching to Qwest:
Thoughts on the Legality of the Latest NSA Program: Assuming that the newly-disclosed NSA surveillance program was described accurately in the USA Today story, is this program legal? Here is a very preliminary run down of the issues. It's not as complete as I would like, and it's not something I have thought about as much as I would like before posting. But my grades are due very soon, and unfortunately I can't spend as much time on this as I would normally like to spend. I hope this post is at least a helpful start.

  The legality of the program touches on at least five laws: the Fourth Amendment, the Pen Register statute, the Stored Communications Act, FISA, and the Communications Act.

  1) The Fourth Amendment issues are straightforward. It sounds like the program involves only non-content surveillance, which means that it presumably doesn't implicate the Fourth Amendment under Smith v. Maryland.

  2) The legality of the program under FISA is somewhat similar to the legality of the NSA program we learned about a few months ago. The key question is, did the monitoring constitute "electronic surveillance" under FISA, and if so, does the Authorization to Use Military Force allow it? Note that FISA's definition of "electronic surveillance" goes beyond accessing only content information and extends to some non-content information. If the program did involve "electronic surveillance" under FISA, then we're right back to the same question that has been raised about the legality of the known NSA domestic surveillance program. If that's right, your views of the legality of the new NSA program will pretty much coincide with your views of the legality of the NSA program disclosed a few months ago.

  3) The next question is, did the monitoring violate the Pen Register statute, and in particular the prohibition of 18 U.S.C. 3121? To boil down a complex area of law into a sentence, federal surveillance law calls any means of surveilling non-content telephone or Internet information a "pen register" or "trap and trace device." Section 3121 then bans using such a device unless the government has a court order (either through the criminal investigative authorities or national security law authorities) or an exception to the statute applies. The exceptions in the statute don't seem applicable here: They mostly involve monitoring to provide better service for the telephone company.

  The USA Today story suggests that Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order. The court order they are referring to is probably the FISA pen register order. Under 50 U.S.C. 1842, the Attorney General or his designate needs to approve the request for such an order, and must certify "that the information likely to be obtained . . . is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." The order would then need to be renewed every 90 days under 50 U.S.C. 1842(f).

  The legal threshold for a FISA pen register order is low: relevance to an ongoing investigation is a pretty easy standard to satisfy. At the same time, obtaining an order for this kind of monitoring would raise an issue that I have wondered about but I don't think I know how to answer: Does FISA's pen/trap authority in 50 U.S.C. 1842 permit the government to conduct massive-scale monitoring, or must monitoring be limited to a specific set of persons or accounts? When the USA Today story says that the government didn't think the order would be granted by the FISA court, I gather they are saying that the FISA court judges didn't think the FISA pen/trap authority permitted such massive scale monitoring. That sounds like a sensible conclusion: I would guess that the FISA judges wouldn't interpret the FSIA pen/trap authority as permitting such massive scale monitoring (in that it trumps the need for any individual orders, which would be odd).

  4) The next possible statute is the Stored Communications Act (SCA), and in particular the prohibition on disclosing records relating to wire communications to a government entity found in 18 U.S.C. 2702(a)(3). It's not clear to me that the SCA applies: the SCA was designed to deal with one-time disclosure of stored communications and records, not real-time collection and repeated disclosure. At the same time, the statute doesn't have an explicit exception for real time collection, so it's at least plausible that it does apply. If it applies, disclosure is permitted only if an exception to the statute covers this. I don't think that any of the exceptions apply, though: the emergency exception of 18 U.S.C. 2702(c)(4) seens to be the closest, but this doesn't sound like there was an "immediate danger" here. This was an ongoing program, not a program responding to a sudden emergency.

  5) A fifth possible statute, and one mentioned in the USA Today story, is the Communications Act of 1934, 47 U.S.C. 222. I have generally thought that the statutes discussed above trump this statute, but the USA Today story mentions it. In any event, I don't know much about this one, as it's a telecom statute and I don't normally play in that sandbox. So I'll punt on this one for now.

  To summarize, my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute. Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it.

  (cross posted at
The Affordability of Gas:

Nominal prices of gasoline are at post-WWII highs. Even in real terms, gasoline prices are high -- higher than the peaks of the early 1980s. Yet gasoline is actually more affordable than ever, according to Indur Goklany. In this post on The Commons Blog, Goklany notes that:

Relative to 1978, the price of regular gasoline has increased by 260 percent in nominal terms and 47 percent in real terms. However the price-to-income ratio has declined by 17 percent, i.e., it is more affordable today.

64 Minutes:

Kevin Drum ponders another "Lost" mystery.

Nukak-Maku Leave the Forest:

The Nukak Maku have always lived a nomadic life in the Amazon jungle, foraging for berries and hunting monkeys with blow guns. One group of Nukak recently decided it had enough of this life (and the increased competition with guerillas for territory). They've left the rain forest and set up camp in southern Colombia, the NYT reports.

While it is not known for sure why they left the jungle, what is abundantly clear is that the Nukak's experience as nomads and hunter-gatherers has left them wholly unprepared for the world they have just entered. The Nukak have no concept of money, of property, of the role of government, or even of the existence of a country called Colombia.

The transition from jungle to civilization is clearly difficult, but it is one this groups seems determined to make.

Are they sad? "No!" cried a Nukak named Pia-pe, to howls of laughter. In fact, the Nukak said they could not be happier. Used to long marches in search of food, they are amazed that strangers would bring them sustenance — free.

What do they like most? "Pots, pants, shoes, caps," said Mau-ro, a young man who went to a shelter to speak to two visitors.

Ma-be added, "Rice, sugar, oil, flour." Others said they loved skillets. Also high on the list were eggs and onions, matches and soap and certain other of life's necessities.

"I like the women very much," Pia-pe said, to raucous laughs.

One young Nukak mother, Bachanede, breast-feeding her infant as she talked, said she was happy just to stay still. "When you walk in the jungle," she said, "your feet hurt a lot."

Now they are learning how to plant crops, and want to send their children to local schools. "We do want to join the white family," one said, "but we do not want to forget words of the Nukak." However tough their transition, it seems clear that modern civilization offers this group of Nukak the prospects for a better life -- even if they insist on still eating monkeys.

Molecular Mixology:

Would you like a blue-cheese-stuffed brine lollipop with your dirty martini? Or perhaps some passion fruit foam on your whiskey sour? The NYT reports on the latest bartending trend.

Charles Krauthammer on "Jihadists":

Here I'd thought that "jihadist" was getting moderately well-established as a term for radical Islamists -- Jonathan Rauch, whom I much respect, suggests that it's actually the best term for them, but at least it's easily understood as one possible term for them -- and now Charles Krauthammer says this, on the Fox Special Report last Friday (emphasis added):

[Jim] Angle: Yes. Now, Charles, one of the interesting things here is that Senator Roberts was talking about the fact that Goss was essentially rebuilding the CIA after some very difficult years, two tumultuous episodes in which its competency was questioned, and rebuilding the size of the agency.

[Charles] Krauthammer: And also trying to deal with the jihadists inside the agency, the people who consider themselves the loyal opposition, which really is the role of Congress, but who oppose administration policy, had been leaking and had been trying to undermine and obstruct administration initiatives.

One of the roles he had adopted, Goss, was to go after these people. He fired Mary McCarthy, who supposedly was the leaker on the secret prison story. And I think there is some -- you know, if you look at this, you could say, well, maybe he was defeated by that element in the CIA. From what I have heard, that's not so. And the next -- and his successor is going to be as tough on the leakers as he was.

Krauthammer also apparently said the same on Hugh Hewitt's radio show:

Well, I think there is a jihadist element in the CIA, people who think that, or a jihad against the administration's policies, and who think that they owe a duty to the nation above their own oath to keep secrets. And they leak stuff as a way to embarrass the administration or undermine a policy or two. And they have been a problem. And we know that Goss acted against that.

Isn't this a titch beyond the level of proper hyperbole, even in these rather shrill times? Is it too much to ask that we save jihadist, terrorist, Nazi, fascist, racist, and the like for people and actions that have some real resemblance to the evil that these terms are associated with?

Thanks to Mark Kleiman for alerting me to this; I can't say I'm nearly as incensed by it as he seems to be, but I agree that this really isn't the way people ought to be talking.

The Other NSA Surveillance Program?: Those who were following the NSA domestic surveillance story back in January will recall that Attorney General Alberto Gonzales strongly hinted that there was another surveillance program out there that remained top secret. Well, it looks like that program may now have been leaked, too. Thursday's USA Today breaks the story:
  The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
  The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
  "It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.
  For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.
  The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.
  For more on the program, see here.

  Thanks to an anonymous commenter for the link.

Wednesday, May 10, 2006

Does CIA Nominee Michael Hayden Understand the Fourth Amendment?

Orin Kerr analyzes this.

Iraqi Federalism II - Answering Three Common Objections:

Critics of proposals for decentralized federalism in Iraq raise several standard objections. See this recent piece by Anthony Cordesman for a representative example (hat tip to an anonymous commenter on my previous post). Here, I answer three of the most important ones: distribution of oil revenue, the problem of local minorities, and the claim that federalism will lead to partition.

I. Distribution of oil revenues.

The vast majority of Iraqi economic production and government revenue consists of oil. Nearly all the oil is found in the Kurdish north and the Shia-majority south. Thus, majority-Sunni central Iraq might be left out in the cold. Fortunately, all three of the federalism proposals cited in my earlier post propose ways around this problem. The possible solutions are guaranteeing the Sunnis a share of the government's oil revenue (Biden), a privatization model that would give all Iraqis individual ownership rights over oil (National Review), or a combination of the two (my approach).

If any of these policies are put into effect, there will initially be problems of credible commitment. The Sunnis might fear that the Shiites and Kurds will renege on the commitment to give them their share of oil money. However, once the payments get off the ground, these concerns can be eased. The US, if it wants to, can give the Shia-led government strong incentives to make the payments happen. The Iraqi government is likely to remain dependent on US assistance for some time, and we could condition that assistance on compliance with the terms of the federalism deal. Moreover, once payments begin, the government will have a self-interest in continuing them because the alternative would be a civil war that is much more costly. Finally, under my approach and National Review's (privatized shares of oil stock given to each member of the population, regardless of religion and ethnicity), any attempt by the government to confiscate the shares of the Sunni population would be likely to undercut the market value of ALL shares, including those held by Kurds and Shia. Kurdish and Shia shareholders would thus have a common interest with the Sunnis.

II. Mixed areas.

Most parts of Iraq do not have homogenous populations. There are Shia living in Sunni areas, Sunnis living in majority-Kurdish areas, and so on. In a federal system, the rights of local minorities may well be threatened by the local majority. Of course this problem does not disappear under a highly centralized government. Ultimately, the parties will have to bargain out the exact boundaries between them, addressing disputed areas such as Kirkuk. Whatever the details of the final settlement, there will obviously still be local minorities. There are two ways to protect their rights: 1) judicial review under a central constitution that guarantees basic individual rights, and 2) mutual deterrence.

Both approaches should be tried, but I set more stock by the second, because the Iraqi judicial system is in its infancy and is likely to improve only very slowly. The Sunni authorities should be able to agree to protect Shiite and Kurd minorities in their midst in exchange for the latter protecting the Sunnis in their areas. Such an "exchange of hostages" model is not very inspiring, but it does give regional governments an incentive to respect the rights of local minorities. Here too, the US and its Coalition partners can play a role in enforcing the bargain by denying or reducing aid to regional governments that violate minority rights. Will it work perfectly? Of course not. But it is better than the alternatives of civil war or centralization. Under the latter, the dominant group in the central government would be able to oppress its rivals all over the country, not just in a few regions.

III. Federalism and partition.

Critics of decentralized federalism often claim that it will lead to partition. Some, like Cordesman in his NY Times piece, do not even seem to distinguish between the two. It is in fact the fear of a dominant central government dominated by one's enemies that leads to pressure for partition. Implementation of a strong form of federalism would dampen these fears, though probably not completely eliminate them. Realistically, the Kurds will not accept a highly centralized government of any kind (and I don't blame them). The Sunnis will not accept one dominated by the Shia, as is likely to be case if the government continues to be democratically elected (the Shiites are 60% of the population). By removing the threat of nation-wide domination by one group, decentralized federalism will reduce pressures for partition rather than increase it. This is especially likely in light of the fact that partition would leave all three major Iraqi groups vulnerable to the depradations of Iraq's unscrupulous and rapacious neighbors. Federalism is a way to capture the main benefits of partition, while mitigating its dangers.

Decentralized federalism is not a panacea for Iraq's many problems, but it does have important advantages over the alternatives of centralization, partition, and civil war.

Related Posts (on one page):

  1. Iraqi Federalism II - Answering Three Common Objections:
  2. Decentralized Federalism in Iraq:
Congrats to Will Consovoy, First George Mason Supreme Court Clerk:

From the George Mason Law School website:

Will earned his B.A. in Political Science from Monmouth University in 1996. As a student at Mason Law, Will graduated in the top 10% of his class and was a leader in many student activities. He served as Editor-in-Chief of the George Mason Civil Rights Law Journal and as a Writing Fellow in the law school's Legal Research, Writing & Analysis program. In addition, Will volunteered for numerous admissions and career services programs and served as an Associate Justice on the Moot Court Board. As a graduate Will remains involved at the law school by volunteering for career mentoring programs and by serving as an adjunct professor.

After graduating from Mason Law, Will clerked on the Arlington Circuit Court and joined McGuireWoods in its Tysons Corner, Virginia office. From 2003-2004, he completed a one-year clerkship with Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit. Following his clerkship with Judge Jones, Will joined the appellate practice group at Wiley Rein & Fielding, where, among other things, he has drafted several briefs to the Supreme Court and was among lead counsel on the brief filed in behalf of the George Mason amici in Rumsfeld v. Forum for Academic and Individual Rights.

Consovoy will be clerking for Justice Thomas.

This has been a banner year for GMU alumni, with (among other things) Jonathan Adler getting tenure at Case Western, and Jonathan Klick being named to a chaired professorship at Florida State Law School. Of course, [sarcasm on] such achievements pale in comparison to the basketball team making it to Final Four [sarcasm off].

Did Cabinet Secretary Admit to Violating the First Amendment?

The Washington Post reports:

[In a recent speech,] Housing and Urban Development Secretary Alphonso Jackson . . . recounted a conversation he had in the nation's capital with a minority publisher.

"He had made every effort to get a contract with HUD for 10 years," Jackson said of the bidder, according to an account of the speech in the Dallas Business Journal. "He made a heck of a proposal and was on the GSA [General Services Administration] list, so we selected him. He came to see me and thank me for selecting him.

"Then he said something. . . . He said, 'I have a problem with your president.' I said, 'What do you mean?' He said, 'I don't like President Bush. ' I thought to myself, 'Brother, you have a disconnect — the president is elected, I was selected. You wouldn't be getting the contract unless I was sitting here. If you have a problem with the president, don't tell the secretary.'

"He didn't get the contract," Jackson continued. "Why should I reward someone who doesn't like the president, so they can use funds to try to campaign against the president? Logic says they don't get the contract. That's the way I believe."

Does Jackson's decision, if the newspaper account is correct, violate the First Amendment? Generally speaking, terminating a contract — or failing to renew a usually renewable contract or removing a contractor from a list of regular service providers — based on the contractor's speech or political affiliation is presumptively unconstitutional. If the speech is on a matter of purely private concern, or if the speech was disruptive to the government's functioning (quite unlikely in this case), this presumption can be rebutted. But the First Amendment rules apply to termination of contracts as much as to government employement. So the Supreme Court decided in Board of County Comm'rs v. Umbehr (1995) and O'Hare Truck Servs. v. City of Northlake (1995).

But does this extend to initial refusals to award a contract? (It sounds like in this case the contractor was selected, but no contract had yet been signed.) On the one hand, Umbehr said it wasn't addressing the First Amendment implications of denying an initial contract — as opposed to canceling or refusing to renew an existing contract — based on the contractor's speech. On the other hand, Umbehr and O'Hare expressly analogized contractors to government employees, and in Rutan v. Republican Party (1990) the Court expressly extended the First Amendment limits on political patronage firing to apply also political-patronage-based refusal to hire. (The limits don't apply to high-level, mostly policymaking, employees, but do apply to most lower-level employees and would by analogy apply to most contractors.)

Lower courts seem to be split on the issue, as a First Circuit case from 2002 reports, citing (internal cert. denied notation omitted) "Lucas v. Monroe County, 203 F.3d 964, 972 (6th Cir.2000) (tow truck operator who had never been called was protected from removal from the call list), McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999) (limiting Umbehr and O'Hare to ongoing commercial relationships); Tarpley v. Jeffers, 96 F.3d 921, 924 (7th Cir.1996) ('The First Amendment bars patronage hiring of independent contractors.')." So it's a tough constitutional question, though I lean to the conclusion that such contractor selection based on the contractor's political preferences is indeed as unconstitutional as employee selection based on the employee's political preferences.

The Post also suggests that the Secretary's reported decision "may violate federal procurement law, which requires 'complete impartiality and . . . preferential treatment for none,'" but I'm not knowledgeable on that area of the law and thus can't do more than just flag the issue.

UPDATE: A reader points to this Chicago Tribune news blog item, from Frank James:

I called HUD and talked with Jackson's spokesperson, Dustee Tucker, about the incident. After talking with Jackson, she returned with information that made the matter even more extraordinary.

She essentially said that Jackson made the whole story up. He told a room full of people something happened which didn't.

"What the secretary was talking about (in his speech) was all of our accomplishments with minority contracts. At at the very end of his statement, the secretary offered an anecdote to explain politics in Washington D.C. He was speaking to a group of business leaders in Dallas and there were lots of Dallas Cowboys in the room.

"So he was offering an anecdote to say, this is how politics works in DC. In DC people won't just stab you in the back, they'll stab you in the front. And so the secretary's point was a hypothetical, what he said was an anecdote. It did not happen....

"You know when you tell a joke you put yourself in first person, for delivery," she said. "You say I was on this train and so and so did this even if you know it wasn't a train. The secretary was putting himself in that first person to make the story more effective...

"The secretary was taking situations that have happened to him in the past. As you know, people come up to political figures all the time and say 'I don't like you, I don't like your politics, I don't like the president... He was blending together things that happened to him in the past." ...

The main message Tucker wanted to leave me with was that Jackson didn't yank anyone's contract because he vehemently disagreed with the Bush administration....

I don't quite know what to make of this, but even if it's right and Jackson wasn't admitting to denying contracts based on politics, it doesn't sound great. As the Tribune blogger points out, "Clearly, Jackson very much would prefer to have evaporate the notion that he's torpedoeing contracts of administration critics, so much so that he'd rather push the idea that he says untruths in his speeches. Either way, it's all very strange."

FURTHER UPDATE: Reader David Smith passes along this item, from the Washington Post:

Housing and Urban Development Secretary Alphonso Jackson apologized yesterday for telling a Dallas business group that he had rejected a HUD contract because the contractor had criticized President Bush.

Jackson said he made up the story. "I deeply regret the anecdotal remarks I made at a recent Texas small-business forum and would like to reassure the public that all HUD contracts are awarded solely on a stringent merit-based process," Jackson said in a statement. "During my tenure, no contract has ever been awarded, rejected, or rescinded due to the personal or political beliefs of the recipient."

Alphonso Jackson said HUD contracts are awarded based solely on merit....

Anticompetitive Barriers to E-Commerce Symposium:

On May 24, the Mercatus Center at GMU and the George Mason University School of Law will be cosponsoring a symposium on "Anticompetitive Barriers to E-Commerce." The Symposium will feature papers providing empirical studies on the effects of regulatory barriers on consumer welfare, as well as the legal issues surrounding the regulation of E-Commerce. More information is available here. Participants include Kenneth Starr, Michael Greve, Rick Geddes, and several current and former FTC staffers.

The papers will be published in a special symposium issue of the George Mason Journal of Law, Economics, and Policy (for which I am the Faculty Advisor and member of the Board of Advisors).

Here's the description of the program:

Business-to-consumer e-commerce is one of the fastest growing business sectors in the American economy. As a result, industry-specific economic regulations, occupational licensing, franchising laws, and a variety of other practices are now under challenge from a new direction. High-profile lawsuits and policy battles involving e-commerce have occurred in industries as diverse as automobiles, wine, caskets, real estate, and contact lenses. In some cases, the bricks-and-mortar incumbents have responded by lobbying for laws or regulations that would protect them from Internet-based competition. Innovation in e-commerce is also calling into question many established policies that generally protect incumbents from new entrants – often in-state interests from out-of-state interests.

In light of these developments, court cases and Federal Trade Commission hearings have revealed that there is a paucity of economic and legal analysis focused on legal and regulatory barriers to e-commerce.

To explore these new issues, and to stimulate research in this area, the Mercatus Center at George Mason University, in collaboration with the George Mason University School of Law, is holding a daylong symposium to allow prominent legal and economic scholars to present papers on topics such as: the current status of legal and regulatory barriers, their impact on consumers, their implications for competitive federalism, and more...

Comparing Kyoto & Iraq - Sunstein Comments

In response to my post below on his op-ed comapring the costs of the Kyoto Protocol with that of the war in Iraq, Cass Sunstein e-mails:

Despite the Post's misleading subtitle ["If We Can Fund the War in Iraq, Why Can't We Fund the Kyoto Protocol?"], and probably some unclear writing on my part, I meant only to make a cost comparison, and not to endorse the Kyoto Protocol, which is (in my view) unjustified in light of the cost-benefit ratio. It's clear that the original cost projection for the war ($50 billion) was much too optimistic, and it's not at all clear that the Bush Administration gave an adequate explanation for rejecting Kyoto — but everything turns on the cost-benefit comparison. My purpose was just to compare costs, which seems to me worthwhile even if only a part of the picture.

This is an entirely fair point. Prof. Sunstein has posted some additional thoughts on the University of Chicago faculty blog as well.

UPDATE: Professor Bainbridge adds his thoughts on the subject here.

Related Posts (on one page):

  1. Comparing Kyoto & Iraq - Sunstein Comments
  2. Is Kyoto Cheaper than Iraq?
Likely Tenth Circuit Nominee:

Neil Gorsuch, who clerked for Justice White the year I clerked, is apparently likely to be nominated to the Tenth Circuit Court of Appeals. (He also later clerked for Justice Kennedy.)

Neil is very smart and thoughtful, and would make an excellent judge. I haven't kept up with him much, but I did read and very much like his recent Wisconsin Law Review article called The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Dutch and Oregon Experiments and Leading Utilitarian Arguments for Legal Change. He also has a book coming out on the same general subject, from Princeton University Press, which I read, liked, and wrote a blurb for.

Thanks to Stuart Buck for the pointer.

U.S. Court of Appeals Judge Michael Luttig Resigns:

Luttig, a leading conservative judge who had often been talked about as a possible Supreme Court nominee, has just resigned. He's going to become General Counsel of Boeing.

Is Kyoto Cheaper than Iraq?

University of Chicago law professor Cass Sunstein thinks so. He makes the case in today's Washington Post:

For the United States, the cost of the Iraq war will soon exceed the anticipated cost of the Kyoto Protocol, the international agreement designed to control greenhouse gases. For both, the cost is somewhere in excess of $300 billion. These numbers show that the Bush administration was unrealistically optimistic in its prewar prediction that the total cost would be about $50 billion. And the same numbers raise questions about the Bush administration's claim that the cost of the Kyoto Protocol would be prohibitive, causing (in President Bush's own words) "serious harm to the U.S. economy."

The incidence of the two costs is not equivalent. Iraq is funded from general tax revenues while any Kyoto-style policy would be likely to increase energy prices. For some, these distributional differences may matter. Moreover, Kyoto represents but a tiny downpayment toward an emission stabilization policy. (Of course, one might say the same about Iraq and its relation to the overall war on terror.)

Meanwhile, on the other side of the Atlantic, the EU's fledgling carbon trading market has experienced tremendous price volatility, due in part to an over-allocation of emission credits. Europe has yet to impose real limits on its own carbon emissions, and questions remain how effectively its carbon trading market will reduce the cost of curbing greenhouse gas emissions.

[NOTE: Post edited to fix typos.]

UPDATE: As some commenters have noted, the comparison of the costs of Iraq and Kyoto is misleading — but this is not necesarily a point in Professor Sunstein's favor. As a former colleague points out,

Wartime spending is primarily a wealth transfer from taxpayers to soldiers, defense contractors, and Pentagon bureaucrats. Although defense spending may reduce GDP (because taxes divert resources from more highly valued uses), the GPD loss is usually less than the amount of wealth transferred, which after all boosts investment, employment, and profits in defense-related industries. The Energy Information Administration estimated Kyoto would reduce U.S. GDP by $100-$400 billion in 2010. Is Sunstein prepared to assert that the Iraq War reduces U.S. GPD by $100 billion annually? I doubt it, because the economy is growing robustly. Sunstein not only fails to compare apples (GDP losses) to apples, he also fails to compare oranges (wealth transfers) to oranges.
I am also told that Sunstein wrote in his 2005 book Laws of Fear that "the Kyoto Protocol appears to impose costs in excess of benefits - and this is so even if improbable catastrophic risks are taken into account." (P. 171)

Related Posts (on one page):

  1. Comparing Kyoto & Iraq - Sunstein Comments
  2. Is Kyoto Cheaper than Iraq?
Translation of the Dutch Decision in the Ayaan Hirsi Ali Case:

Reader James Wallmann, who's a lawyer and who speaks Dutch, very kindly responded to my request -- many thanks to him for his help. Here's what he writes:

Here is a translation of the summary and a summary of the opinion....

Mr. Dorsman’s translation of the summary is very good — probably better than mine.

Translation of "Inhoudsindicatie" (Summary) of LJ# AW5258, Gerechtshof [Court of Appeal], The Hague, 06/83

Translator’s note: Except as indicated, all brackets are in the original decision.

The State purchased an apartment in an apartment building in [place] and renovated it as a high security residence. At the present time, the State allows [person] to live in this apartment. A number of residents of the other apartments object to this. They claim that they are in danger of becoming victims if an attack is carried out on [person] while she is in the building. In addition, they claim to be burdened by the security measures which have been established for [person]. For the most part, the court agrees with the residents. The court finds that an impermissible burden on the residents has not been proven. But, according to the judgment of the court, it is reasonable to believe that the residents do not feel safe within their own apartments because one of the apartments is a high security residence for [person]. Because the residents do not feel safe in the place where they — of all places — should feel safe, namely their residence, it is a violation of their right to live where they want to live [woonrechten, probably not "human rights" — trans.] In order to keep this violation of Art. 8 EVRM [Europees Verdrag voor de Rechten van de Mens, or European Convention on Human Rights — trans.] from becoming an actionable violation, the State must see that [person] leaves the apartment within four months. The error of the State in establishing her residence in the apartment without legal justification must not be shifted to the residents, who did not agree to this. The judgment of the court is based on the specific circumstances of this case and, in particular, on the fact that this high security residence is occupied by [person]. There are insufficient grounds to conclude that the occupancy of the apartment by another protected person would be a violation of Art. 8 EVRM.


Tuesday, May 9, 2006

College Admissions Help and Disclosure Requirements: New York Magazine has an interesting piece on the use of expensive consultants that can "package" college applications to improve applicants' chances of admission. Among the difficulties with such consultants is that they make an uneven playing field even more uneven: The same wealthy kids who have been given every opportunity to succeed are then helped even more by "help" in crafting the applications themselves. If you're a college admissions officer, I would imagine that this sort of thing is troubling. It makes it harder to assess real talent and hard work.

  I wonder if disclosure might help matters, at least a little bit. For example, I wonder what parents and applicants would do if the common application required applicants to disclose all of the help they received and all of the services and resources they used in the course of applying. You could make the disclosure a general one, or else make it very detailed. But I wonder if disclosure might help even out the playing field. First, it would discourage excessive packaging. Wealthy parents might want to give their kids a leg up by hiring a consultant to help Junior package himself for Dartmouth, but will they want to do it if Junior has to admit in his application that Ivywise was hired to help him out? Disclosure would help admissions officers, too, by giving them some useful context to evaluate applications.

  Of course, disclosure wouldn't work perfectly. For example, lots of applicants would probably misrepresent the help they received. And it's not easy to figure out what kind of information should be disclosed and what shouldn't. At the same time, disclosure might take us a tiny step forward in evening out the playing field for admission to competitive colleges.

  Thanks to Frank Pasquale for the link.
Blegging for Translation from Dutch:

Pieter Dorsman (PeakTalk) points to the court's ruling in the Ayaan Hirsi Ali case. If anyone could translate it from Dutch, that would be a substantial public service, deserving of much public praise and recognition that I'll be delighted to give you. Summarizing the argument and translating key passages would be a good start, since we beggars can't be choosers. . . .

More on the North Carolina Sex-Outside-School Case:

This article reports:

The suspension notice states that Ryan violated a policy that says: "No student shall engage in behavior which is indecent, overly affectionate, or of a sexual nature in the school setting."

"Students leave school and essentially take the rules with them," school board lawyer Ann Majestic said in a telephone interview Friday. "The parents and the student had signed a form indicating the conditions under which a student could be off campus during the lunch hour, and it made it clear that school rules applied while the student was off campus." ...

I'm not sure that the policy is so vague that it can't be constitutionally enforced here -- much depends on the exact terms of the form -- but it seems to me that the policy's terms further suggest that the school is acting improperly. The policy itself seems to be pretty clearly focused on behavior in school or during school-sponsored events. The purpose of the policy seems to be to maintain decorum and a proper environment for learning at school. A student who's familiar with the policy would, I think, interpret it precisely this way.

If a form then says that "school rules appl[y] while the student [is] off campus," I doubt that a reasonable student would assume that this means no french kissing (might well be "overly affectionate," no?) at home or even in the car on the way to the event. I'd say that many perfectly sensible students would understand this as simply covering the things you would do while on the field trip, surrounded by students or others. That behavior in public on a school-related field trip is treated as being part of the "school setting" doesn't mean that behavior at home while playing hooky from the field trip would be treated the same way.

But even if it's not unconstitutional to apply the policy to bar sex or french kissing at home, on the theory that such behavior is barred "in the school setting" and a form says that "school rules appl[y] while the student was off campus," surely it's not quite fair -- especially when the contemplated punishment seems to be suspension for the rest of the year, which, as the news story points out, "[s]pending so much time away puts him in jeopardy of repeating 11th grade and not graduating with his class next spring."

Related Posts (on one page):

  1. More on the North Carolina Sex-Outside-School Case:
  2. A Bit Excessive, No?
Threatened Dutch Politician Required to Move Out of Her Apartment,

because of the European Convention on Human Rights. This strikes me as potentially quite troubling, but also puzzling, because all I've seen on it is brief English language news accounts, plus this blog post that comments on the case and translates some Dutch news accounts, and this Christopher Hitchens Slate piece that first alerted me to this. Here's one English language account from Expatica News:

Liberal Party MP Ayaan Hirsi Ali has been ordered to vacate the high-security home she is renting in The Hague within four months.

An appeal court sided with her neighbours who complained her presence put their own safety at risk and caused disruption to their lives....

Somali-born Hirsi Ali is known as a critic of aspects of Islam and she went into hiding in November 2004 when filmmaker Theo van Gogh was murdered. They had finished work shortly before his murder on Submission, a short film about the ill-treatment of women under Islam.

Hirsi Ali and fellow MP Geert Wilders spent several months in hiding in secret locations due to death threats made against them because of their stance on Islam....

The neighbours ... won on Thursday when an appeal court accepted Hirsi Ali's presence meant they no longer felt safe in their own apartments or in the communal areas of the complex. The court ruled that is contravened Article 8 of the European Convention of Human Rights which guarantees respect for a person's private and family life.

The Dutch State had contravened these rights by moving to the apartment complex without seeking their consent and without taking measures to diminish the neighbours' valid fears, the court said....

I understand the neighbors' concerns, but it seems to me on balance quite wrong -- and quite destructive of the fight against terrorism -- that they would have a legal right and, essentially, a European constitutional right to insist that Ali move out. Some risks, it seems to me, are inevitable whenever terrorists are trying to intimidate your countrymen and interfere with your democratic process. Sure, most of us would rather that these risks be borne entirely by others. But I don't think that we ought to have a legal right to insist on this. And if we do have the legal right to insist on it, that seems to only strengthen terrorists' ability to intimidate.

Plus, as PeakTalk points out, this "is not just about one outspoken member of parliament. Beyond a number of politicians there is a growing constituency of writers, artists and cartoonists who may rightfully claim government protection. And in most cases their neighbors are equally likely to take a less than charitable view of their right to exercise free speech. This is once more evidence of how Europeans fail to understand the bigger picture and are more than willing to let some short term comfort prevail over the long term survival of core values that built their societies in the first place." (I should stress, by the way, that this failing is a common and understandable human failing, not just a European one; it's just a shame if European law comes to reinforce this failing.) And, of course, "those responsible for threatening her will have the last laugh."

Nonetheless, it's hard to evaluate this for sure without knowing more of the facts and analyses underlying the court's judgment; and unfortunately I couldn't find even the Dutch-language version of the opinion. Do any readers know where the opinion might be found? If I get my hands on it, then I'll try to take the next step and get it translated.

A Bit Excessive, No?

A local TV station site reports:

Ryan Biggar, 16, and his 17-year-old girlfriend had permission to leave Middle Creek High School for an off-campus program. When their event was canceled for the day, they were caught having sex in the girl's home.

It violated school rules, and officials say those rules apply no matter where you are during school hours.

But ... Biggar's family is filing a lawsuit against the school system, saying his suspension for the rest of the school year is unconstitutional. He says he had no notice that private, consensual, off-campus sexual activity could subject him to school suspension....

Wake County school spokesman Michael Evans says that having sex during school hours breaks the rules — even in a private home.

"Whereever you are during school hours. It's a privilege to leave campus for lunch and you sign a form to that effect, as do your parents," Evans said. "So it was with full consent and knowledge that they participate under these rules and if they chose to break them then disciplinary action will come into play."

Court documents include a copy of the lunch permit application, which states that students exercising off-campus lunch privileges are subject to the rules of student conduct, as applicable to the regular school day. Biggar and one of his parents had signed the application....

I can't speak to whether the suspension violates school rules or state law — or violates the Due Process Clause because there wasn't adequate notice.

But setting aside the legal question, even if the student did violate the rules, isn't the punishment (what sounds like several weeks' suspension) somewhat disproportional to the offense? Yes, he was essentially playing hooky, and should be punished for that; but I don't see why it's the school's business whether he was playing hooky to have sex at home or playing hooky to play video games at home. (I believe that the age of consent in North Carolina is 16, so there's no question of illegality here.) Screwing up the boy's (and presumably the girl's) studying and exam schedule, and depriving them of a month or more of what one would hope is a valuable educational experience, doesn't seem to make much sense.

Thanks to reader Mike Bavli for the pointer.

UPDATE: My favorite comment, from commenter Thief: "Wow. From in loco parentis to simply loco."


Grrr -- this is one word that really bugs me (except when it's used to deliberately distinguish an individual from a collective body). Why not "person"? Why not "someone"? "Individual" just seems like a bureaucratese or academese synonym for these simpler terms; it makes the writing seem more formal and stilted with no countervailing increase in precision.

Again, if you want to distinguish individuals from corporations, or want to discuss individual rights as a way of stressing their protecting individuals from the state, that's fine. But if in context "individual" simply means "person," it seems to me that "person" is the much better term.

Decentralized Federalism in Iraq:

Both liberal democratic Senator Joe Biden and the conservative National Review have recently published articles arguing that decentralized federalism is the way forward in Iraq, and the best policy for addressing that country's serious ethnic and religious conflicts. Hopefully, a broad consensus will emerge on this point in the United States and (more importantly) in Iraq itself.

I published a piece making a similar argument in a supplement to the Iraqi paper Al Sabah last year. The English language version is available here.

UPDATE: Many people, both in the US and in Iraq, confuse decentralized federalism with partition of the country into three separate states (Sunni, Shiite, Kurdish). In reality, federalism is an ALTERNATIVE to partition, not a synonym for it. Like partition, it has the advantage of enabling each of the three groups to avoid total domination by any of the others. Unlike partition, it avoids breaking up Iraq into three relatively weak nations that would be easy pickings for Iraq's rapacious neighbors. The other alternatives to partition are probably dictatorship or civil war. Despite the very serious attendant risks, I don't think that partition should be categorically ruled out for all time. But, at the very least, we and the Iraqis should try federalism first.

Related Posts (on one page):

  1. Iraqi Federalism II - Answering Three Common Objections:
  2. Decentralized Federalism in Iraq:
The Law Working Itself Pure:

How Appealing reports:

The error in a recent Ninth Circuit decision that Eugene Volokh pointed out yesterday in this post at "The Volokh Conspiracy" (and later linked here by me) has today been eradicated from the annals of the law thanks to an order amending opinion that the U.S. Court of Appeals for the Ninth Circuit has issued.

Dien' Pobiedy:

Today is when Russians celebrate (at least they celebrated it under the Soviets, but I'm sure they still celebrate it now) Dien' Pobiedy, or Victory Day, the victory of course being victory over the Nazis (or, as the Russians say, Fascists). Americans mark V-E day on May 8, but I take it that the surrender on the Russian front happened on the 9th.

HUD Contracts for Bush Supporters Only?: I don't know anything about HUD or government contracts, but I thought this story sounded troubling. Can any one with more background in this area than I have shed some light on it? Hat tip: Raw Story.
When Did Presidents Start Using Speechwriters?

In an offhand comment, the always interesting Mark Kleiman says that "No American President since Lincoln has written his own speeches."

That struck me as unlikely. In searching on the web, I found a reference to William Safire having organized a society of former presidential speechwriters, "the Judson T. Welliver society, named for President 'Silent Cal' Coolidge's speechwriter, the first of his trade." That source also notes that Alexander Hamilton wrote at least some speeches for George Washington.

I wonder whether any of our readers can point me to more evidence whether Welliver was indeed the first presidential speechwriter, and to what extent Presidents from Washington through Harding used occasional speechwriters.

By the way, I once spent a day reading Coolidge's speeches online. They are very impressive, and, like Ted Sorenson's speeches for JFK, they seem to be a strong reflection of the president's character.

Coolidge's most famous line is contained in this January 17, 1925 speech to the American Society of Newspaper Editors Washington, D.C.:

There does not seem to be cause for alarm in the dual relationship of the press to the public, whereby it is on one side a purveyor of information and opinion and on the other side a purely business enterprise. Rather, it is probable that a press which maintains an intimate touch with the business currents of the nation, is likely to be more reliable than it would be if it were a stranger to these influences. After all, the chief business of the American people is business. They are profoundly concerned with producing, buying, selling, investing and prospering in the world. I am strongly of opinion that the great majority of people will always find these are moving impulses of our life. The opposite view was oracularly and poetically set forth in those lines of Goldsmith which everybody repeats, but few really believe:

Ill fares the land, to hastening ills a prey, Where wealth accumulates, and men decay.

Excellent poetry, but not a good working philosophy. Goldsmith would have been right, if, in fact, the accumulation of wealth meant the decay of men. It is rare indeed that the men who are accumulating wealth decay. It is only when they cease production, when accumulation stops, that an irreparable decay begins. Wealth is the product of industry, ambition, character and untiring effort. In all experience, the accumulation of wealth means the multiplication of schools, the increase of knowledge, the dissemination of intelligence, the encouragement of science, the broadening of outlook, the expansion of liberties, the widening of culture. Of course, the accumulation of wealth can not be justified as the chief end of existence. But we are compelled to recognize it as a means to well nigh every desirable achievement. So long as wealth is made the means and not the end, we need not greatly fear it. And there never was a time when wealth was so generally regarded as a means, or so little regarded as an end, as today. . . .

So there is little cause for the fear that our journalism, merely because it is prosperous, is likely to betray us. But it calls for additional effort to avoid even the appearance of the evil of selfishness. In every worthy profession, of course, there will always be a minority who will appeal to the baser instinct. There always have been, and probably always will be some who will feel that their own temporary interest may be furthered by betraying the interest of others. But these are becoming constantly a less numerous and less potential element in the community. Their influence, whatever it may seem at a particular moment, is always ephemeral. They will not long interfere with the progress of the race which is determined to go its own for ward and upward way. They may at times somewhat retard and delay its progress, but in the end their opposition will be overcome. They have no permanent effect. They accomplish no permanent result. The race is not traveling in that direction. The power of the spirit always prevails over the power of the flesh. These furnish us no justification for interfering with the freedom of the press, because all freedom, though it may sometime tend toward excesses, bears within it those remedies which will finally effect a cure for its own disorders.

American newspapers have seemed to me to be particularly representative of this practical idealism of our people. Therefore, I feel secure in saying that they are the best newspapers in the world. I believe that they print more real news and more reliable and characteristic news than any other newspaper. I believe their editorial opinions are less colored in influence by mere partisanship or selfish interest, than are those of any other country. Moreover, I believe that our American press is more independent, more reliable and less partisan today than at any other time in its history. I believe this of our press, precisely as I believe it of those who manage our public affairs. Both are cleaner, finer, less influenced by improper considerations, than ever before. Whoever disagrees with this judgment must take the chance of marking himself as ignorant of conditions which notoriously affected our public life, thoughts and methods, even within the memory of many men who are still among us.

It can safely be assumed that self interest will always place sufficient emphasis on the business side of newspapers, so that they do not need any outside encouragement for that part of their activities. Important, however, as this factor is, it is not the main element which appeals to the American people. It is only those who do not understand our people, who believe that our national life is entirely absorbed by material motives. We make no concealment of the fact that we want wealth, but there are many other things that we want very much more. We want peace and honor, and that charity which is so strong an element of all civilization. The chief ideal of the American people is idealism. I cannot repeat too often that America is a nation of idealists. That is the only motive to which they ever give any strong and lasting reaction. No newspaper can be a success which fails to appeal to that element of our national life. It is in this direction that the public press can lend its strongest support to our Government. I could not truly criticize the vast importance of the counting room, but my ultimate faith I would place in the high idealism of the editorial room of the American newspaper.

What I Did This Spring Vacation:

Why, I wrote onto the UCLA Law Review. (I was smart enough to resign before they gave me cite-checking assignments.)

What was I smoking when I decided to do this? Why did I decide to do this? My Academic Legal Writing book gives advice to students who are trying to write on to law review, but I realized that this advice is based on my now 16-year-old experience of writing onto law review during my first year of law school, coupled with my general knowledge about legal writing. Not nothing, but I figured I could do better. So I took several days — which, valuable as I think law review is, proved to nonetheless be several not very pleasant days — and did the write-on.

I naturally cleared this experiment with the higher-ups at the law review, both because I was creating more work for them (though less than 1% more, since I was one of about 140 people who participated) and because if they wanted 35 people and I made it as one of them, I wanted to make sure they understood that they'd also need to take the 36th. (It would be a pretty nasty turn if I ended up edging out some deserving law student.) But though the top people at the law review knew I was doing it, they didn't know my anonymous exam number, and most law review editors didn't know that I was participating at all.

And as it happens, I think my experiment did indeed prove very valuable to me. I learned quite a bit about the process that I hadn't thought of before, confirmed some things I thought I had known, and concluded that a few recommendations that I'd made were a good deal less sound than I thought they were. I plan to use what I learned when I'm working on the Third Edition of my book (which should be out in Fall 2007). And I plan to blog much of it here in the next few weeks, since I know that at many schools the law review competition is still coming up.

In the meantime, I just thought I'd mention my having done this, just as a reminder that, yes, I'm as odd a duck as I seem.

UPDATE: My favorite comment so far, from commenter wt: "How very Drew Barrymore in 'Never Been Kissed' of you!"

Star Spangled Banner Lyrics

In light of the current controversy over the revision of The Star Spangled Banner into an anthem for illegal aliens, I thought it would be useful for readers to see more lyrics to the song. First of all, there are verses 2 through 4 to the official national anthem, all of which come directly from Francis Scott Key's 1814 poem The Defense of Fort McHenry. For a nation at war with totalitarians who are vastly more wicked than were our British opponents of 1814, the lyrics seem especially apt:

On the shore, dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, now conceals, now discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines on the stream:
'Tis the star-spangled banner! O long may it wave
O'er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has wiped out their foul footstep's pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation!
Blest with victory and peace, may the heaven-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner forever shall wave
O'er the land of the free and the home of the brave!

Later, the free people of Texas took the same tune to which The Star Spangled Banner had been set (more on that below), and created The Texan War Cry, celebrating the victory of the free Texans in their war of independence against the standing army of Santa Ana's tyranny:

Oh Texans rouse hill and dale with your cry.
No longer delay, for the bold foe advances.
The banners of Mexico tauntingly fly,
And the valleys are lit with the gleam of their lances.
With justice our shield, rush forth to the field.
And stand with your posts, till our foes fly or yield.
For the bright star of Texas shall never grow dim,
While her soil boasts a son to raise rifle or limb.

Rush forth to the lines, these hirelings to meet.
Our lives and our homes, we will yield unto no man.
But death on our free soil we'll willingly meet,
Ere our free Temple soiled, by the feet of the foe men.
Grasp rifle and blade with hearts undismayed,
And swear by the Temple brave Houston has made,
That the bright star of Texas shall never be dim
While her soil boasts a son to raise rifle or limb.

I wrote about the significance of these lyrics, and other aspects of the Texan war of independence, in my article Don't Mess with (Armed) Texans.

As many people know, The Star Spangled Banner and The Texan War Cry were both set to the tune of an older British song, To Anacreon in Heaven, which celebrates the entwining of the fruit of the vine with romantic love.

To Anacreon in Heaven, where he sat in full glee,
A few sons of Harmony sent a petition,
That He their Inspirer and Patron would be;
When this answer arrived from the Jolly Old Grecian
"Voice, Fiddle, and Flute,
"no longer be mute,
"I'll lend you my Name and inspire you to boot,
"And, besides, I'll instruct you like me to entwine
"The Myrtle of Venus with Bacchus's Vine.

The news through OLYMPUS immediately flew;
When OLD THUNDER pretended to give himself Airs
"If these mortals are suffer'd their Scheme to persue,
"The Devil a Goddess will stay above the Stairs.
"Hark, already they cry,
"In transports of Joy,
"Away to the Sons of ANACREON we'll fly,
"And there, with good Fellows, we'll learn to entwine
"The Myrtle of VENUS with BUCCUS'S Vine.

"The YELLOW-HAIRED GOD and his nine fusty Maids
"From Helicon's Banks will incontinent flee,
"IDALIA will boast but of tenantless Shades,
"And the bi-forked Hill a mere Desart will be
"My Thunder, no fear on't,
"Shall foon do it's Errand,
" and, dam'me! I'll swinge the Ringleaders, I warrant,
"I'll trim the young Dogs, for thus daring to twine
"The Myrtle of VENUS with BACCUS'S Vine.

APOLLO rose up; and faid, "Pr'ythee ne'er quarrel,
"Good King of the Gods, with my Vot'ries below:
"Your Thunder is useless." - then, fhewing his Laurel,
Cry'd, "Sic evitabile fulmen, you know! ["This repels thunder"]
"then over each Head
"My Laurels I'll spread;
"So my Sons from your Crackers no Mischief shall dread,
"Whilst snug in their Club-Room, they jovially twine
"The Myrtle of VENUS with BACCUS'S Vine.

Next MOMUS got up, with his risible Phiz,
And swore with APOLLO he'd cheerfully join
"The full Tide of Harmony still shall be his,
"But the Song, and the Catch, & the Laugh shall be mine
"Then, JOVE, be not jealous
Of these honest Fellows.
Cry'd JOVE, "We relent, since the Truth you now tell us;
"And swear, by OLD STYX, that they long shall entwine
"The Myrtle of VENUS with BACCUS'S Vine.

Ye sons of ANACREON, then, join Hand in Hand;
Preserve Unanimity, Friendship, and Love!
'Tis your's to support what's so happily plann'd;
You've the Sanction of Gods, and the FIAT of Jove.
While thus we agree
Our Toast let it be.
May our club flourish happy, united and free!
And long may the Sons of ANACREON intwine
The Myrtle of VENUS with BACCUS'S Vine.

Personally, I like all three sets of lyrics, and I also like other versions of The Star Spangled Banner which, in previous decades, have attempted to make our national anthem immediately accessible to new immigrants who are just beginning their journey towards citizenship and learning English. For these immigrants, a native-language version of The Star Spangled Banner was a step along the path to the day when they could renounce their allegiance to their native land, and take the American Oath of Citizenship:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. In acknowledgement whereof I have hereunto affixed my signature.
It seems to me that the real cause for controversy about Nuestro Himno is not that it's in Spanish, or that it revises Francis Scott Key's lyrics in ways that, within the four corners of the lyrics, are not objectionable. My objection is that the song is currently used on behalf of a movement of people who--while demanding U.S. citizenship as a "right" despite their flagrant violations of U.S. immigration laws--are too often not willing to assume the duties of U.S. citizenship, which begin when the citizen affirms: "I absolutely and entirely renounce and abjure all allegiance and fidelity to any...state...of...which I have heretofore been a subject..."


Monday, May 8, 2006

"Daily" Means Daily:

The Clean Water Act (CWA) requires states to set caps, known as “TMDLs,” for the amount of certain pollutants that may be discharged into polluted waters. Under the (CWA), TMDLs must be set at the level “necessary” to meet relevant water quality standards. For years, the U.S. Environmental Protection Agency has maintained that TMDLs need not establish daily discharge limits, even though TMDL stands for “total maximum daily load” (emphasis added). For some pollutants, the EPA approved TMDLs that set annual or seasonal, rather than daily, limits. When the EPA approved such limits for the discharge of pollutants into the Anacostia River, one of the most polluted rivers in the nation, Friends of the Earth sued.The EPA claimed that setting annual or seasonal discharge limits makes more sense in some contexts, such as storm water. Perhaps this is so, but that does not make it legal.

In a recent opinion, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit resoundingly rejected the EPA’s suggestion that “the word ‘daily,’ as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily.” As Judge David Tatel explained in his opinion for the panel in Friends of the Earth v. EPA:

The law says “daily.” We see nothing ambiguous about this command. “Daily” connotes “every day.” See Webster’s Third New International Dictionary 570 (1993) (defining “daily” to mean “occurring or being made, done, or acted upon every day”). Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of “[g]ive us this day our daily bread” as a prayer for sustenance on a seasonal or annual basis. Matthew 6:11 (King James).
As the Washington Post editorialized, this "strong, derisivie language" was a "message to the agency to take congressional enactments seriously, as written, not as the agency wishes Congress had written them."

Were it not bad enough that the EPA sought to ignore the plain language of the statute, the agency failed to take advantage of a potential out the statute provides. The CWA only mandates the setting of TMDLs for those pollutants deemed “suitable” by the EPA. In 1978, the EPA determined that “all pollutants” were “suitable” for daily limits, but there is no reason that the EPA could not revisit this conclusion. Thus, Judge Tatel wrote, the court was "at a loss as to why [the EPA] neglected this straightforward regulatory fix in favor of the tortured argument that ‘daily’ means something other than daily."

This was not the first time the EPA has tried this argument in court, however. In 2001, the EPA convinced a panel of the U.S. Court of Appeals for the Second Circuit, in NRDC v. Muszynski, that “the CWA does not require that all TMDLs be expressed strictly in terms of daily loads” because this could produce “absurd” results for some pollutants. Thus, the D.C. Circuit’s opinion creates a circuit split on the question. (I have not yet heard whether the EPA intends to file for certiorari.)

This was also not the first time that the EPA had sought to ignore “a statute’s plain language simply because the agency thinks it leads to undesirable consequences” (and I doubt it will be the last). In the 2002 case of Sierra Club v. EPA, for example, the D.C. Circuit took the EPA to task for the same offense, this time in the context of Clean Air Act implementation. In both cases, the EPA sought to implement a “reasonable” policy choice at odds with statutory text. In both cases, the beneficiary of the EPA’s flexible interpretive approach was the District of Columbia. Is it overly cynical of me to think this is not wholly coincidental? One would expect regulators to be more sensitive to the practical consequences of regulatory decisions about which they will bear the costs and reap the rewards. Therefore, would it be surprising were the EPA more aggressive in its efforts to stretch statutory text to avoid “unreasonable” results where such efforts will have their greatest effect in the agency’s own backyard? I am curious as to what readers think about this subject, and whether this question is worth further empirical examination.

University of Chicago Talk on Kelo

Tomorrow I will be giving a lunchtime talk on eminent domain and the Supreme Court's decision in Kelo v. New London at the University of Chicago Law School sponsored by the student chapter of the Federalist Society. As one might expect, I will be very critical of the use of eminent domain for economic development (including for its potential environmental effects). At the same time, I will explain why I think the Kelo decision was correct as a matter of constitutional law. (For a preview of the argument, see here and here.) Perhaps Ilya and I will have to debate this question at some point -- especially since we agree on the need to curb the use of eminent domain by state and local governments.

Posting Entire Articles:

I should note that I generally don't post entire articles from newspapers or magazines, because that would probably infringe the copyright in the articles. But I don't have such a hesitation about letters to the editor, the copyright in which is generally owned by the letter's author, not by the newspaper.

With letters to the editor, I think that there's probably an implied license to redistribute the letter further, since broad distribution (for free) is what the authors of such letters usually want. And even if there's no implied license, the republication is fair use, because the republication doesn't interfere with the letter-writer's market for his work: Letters to the editor almost invariably make no money for the letter-writer (whereas newspaper articles do make money for the newspaper, through advertising income).

This is naturally an oversimplification. When I teach copyright law, we spend days on fair use, plus some time on implied licenses, and I didn't want to go into all this detail here. But I wanted to note this for those who wonder why I'm willing to copy entire letters but generally not entire articles.

Accusing Librarian of Sexual Orientation Harassment

for suggesting that the university include an anti-gay book in a freshman reading program is "not an act of intellectual oppression." It doesn't even "imply judgment," but merely "notifies the human-resources office that discrimination might have occurred" ("discrimination" here meaning offensive speech). This is especially so because of "a crucial point: the discrimination reports did not focus on the book suggestion so much as the librarian’s unyielding defense of the book, even after the revelation of its bigotry, his disparagement of faculty expertise and his forwarding of others’ e-mails to an outside organization." That's what Prof. Christopher Phelps at Ohio State University (Mansfield) continues to insist.

Yup, unyielding defenses of a book recommendation are obviously something that human resources departments should be investigating in "a university that is a beacon of intellectual freedom." In any case, let me quote Prof. Phelps' letter so you can see his full argument in context; for my coverage of this issue, see here:

As a member of the faculty of Ohio State University at Mansfield, I write in the hope of providing a more precise rendering of a recent conflict on campus.

The campus’ head reference librarian told The Dispatch in an April 21 news article that he was accused of "sexual harassment" by the faculty for what the reporter called his "tongue-in-cheek" suggestion that a book called The Marketing of Evil be assigned to all incoming students as part of a first-year reading experience. A subsequent Dispatch editorial (April 26) condemned the faculty for requesting an investigation into sexual harassment.

In actuality, the faculty assembly in March decided not to request an investigation as a body. Two individual professors did file reports, but in reference to "harassment based on sexual orientation," or discrimination, not sexual harassment. Such a referral does not imply judgment. It merely notifies the human-resources office that discrimination might have occurred.

Our faculty believes firmly in free speech. We believe intellectual freedom is critical to the life of a university. We do not fault investigators for concluding that no harassment occurred.

We believe, however, that The Dispatch is wrong to condemn the faculty members who made the referrals. University policy obliges anyone who knows of a possible case of discrimination to report it, for the obvious reason that secondary parties must be encouraged to refer such matters lest victims suffer privately, leaving the university liable and injustice unaddressed. The two faculty members who filed reports, neither of them gay, perceived that their gay colleagues were finding the workplace inhospitable.

Referral of the dispute to human resources was not an act of intellectual oppression. It was an attempt to restore an atmosphere of freedom and tolerance to the campus, including the freedom of consenting adults to love whomever they wish without discrimination.

Dispatch columnist Joe Blundo has done an excellent job of conveying the ludicrousness of The Marketing of Evil ("Left vs. right: All opinions should be heard," Tuesday). Quite apart from demonstrating its unabashed bigotry, his column makes it clear that this is a book wholly unsuited to the purpose of introducing undergraduates to the life of the mind. Why would a reference librarian, entrusted with guiding students to the best possible sources, recommend such a screed?

But the news media’s coverage has missed a crucial point: the discrimination reports did not focus on the book suggestion so much as the librarian’s unyielding defense of the book, even after the revelation of its bigotry, his disparagement of faculty expertise and his forwarding of others’ e-mails to an outside organization. The claim that his proposal was tongue-in-cheek is belied by the fact that when he was employed at Lakeland Community College in 2004, he displayed an antigay book prominently, provoking controversy there, as well.

Out faculty seeks a university that is a beacon of intellectual freedom, high scholarly standards and freedom from discrimination based upon sexual orientation. I look forward to the day when we can say with assurance that our library manifests the same principles.

Why Is Curious George

not "a good little monkey, and always very curious"?

Polls on Presidential Approval Ratings: The USA Today's coverage of the latest poll on the President's approval ratings made me wonder about what those ratings have been over the course of the Bush Presidency. I googled around a bit and found this very interesting chart, which apparently includes polling data from most of the major polling groups over time.
UFO Report: According to the BBC, a secret UK government report continues to deny the presence of alien spaceships on our planet. Just as I would have expected.
Why Law Schools Generally Grade Based on a Single End-of-Semester Exam:

Most law school exams, to my knowledge, involve a single end-of-semester exam. Some comments in this thread argue that this is pedagogically unsound, and that having several exams — a final plus a midterm or two — would better measure people's knowledge. (It might also help students learn the material better.) I'm not sure that this is so, because I haven't looked into the research; but it seems plausible, and colleagues I trust have said that the research does support this. Let's assume then that this is right. Why then the single-exam format?

Some of the commenters identified one important answer: Professors hate grading exams, and would thus rather grade one exam than two or more (since presumably the two or more put together would involve more pages of exam answers than just the one). With few if any exceptions, law professors do all the grading themselves. "Law is the only discipline in which students select what's published in the journals and the professors grade the exams." Professors and professor-run bodies get to decide how many exams there'll be. Professors hate grading the exams. You get the picture.

I think there's a lot of truth to this, but let me suggest an extra factor: I suspect that most students prefer the one-exam structure as well, so that there's little pushback against the professors' one-exam preference, and there would likely be some pushback against professors' attempts to shift to the "better" two- or three-exam format.

In my experience, most law students are very serious about studying for exams, and thus spend a lot of time studying for them and stressing out over them. What's more, if you cut the significance of the exam in half, students won't think they have to study half as long or half as hard. Rather, they'll still see themselves as in hot competition with the other students, and will feel the pressure to study nearly as hard and long for each of the two exams as they would have for the one.

Naturally, some students might value the greater accuracy of the multi-exam approach, and the lower risk to them that this approach provides (since they don't need to worry as much about tanking a class because they screw up one exam). But for many students the downside of yet more studying and yet more worrying exceeds the upside of less risk and better measurement accuracy. And on top of that, grades are on balance mostly a zero-sum game — more accuracy of testing will just rearrange the As, Bs, and Cs, so as many students will lose as will win. Increased time needed to study for exams is a net loss for students as a whole. Therefore, you'd expect that more accurate measurement devices will please only a few students, while greater need to study will displease many more students.

So professors don't want to institute more exams, even if having more exams provides more accurate measurement. More students, I suspect, don't want to institute more exams, even if having more exams provides more accurate measurement. Who would predictably benefit from more accurate measurement, and lose nothing from it? Employers, and perhaps indirectly the legal system generally.

Employer pressure may indeed have some broad effects. For instance, while abolishing grades would make life easier for professors and would in some ways make it easier for students, most employers won't hire students who don't have grades. Even Yale, which some say "doesn't have grades" does have a "High Pass" and a "Pass" [UPDATE: and two lower grades which are rarely given], which selective employers definitely focus on; and schools that aren't as selective as Yale probably couldn't get away even with that (though Berkeley somehow manages with only three grades).

But on balance I suspect that few employers care about precision enough to make a stink about this. The grades give employers some decent signal of applicant quality; employers realize that no grading system would yield a perfect signal; it's hard to tell how much extra accuracy one grading system provides over another; the random noise in the grading probably averages out in considerable measure when you look at the student's entire transcript; so employers are unlikely to spend much time and effort on even thinking about the midterms-or-no-midterms question, much less trying to pressure stodgy academic institutions into changing their ways, or shifting their hiring practices towards schools that provide more midterms (which would provide indirect pressure on the law schools).

This is just a casual analysis, not based on any deep thought, and I might well be mistaken. Yet it seems to me that while professor self-interest is an important factor here (a free-market guy like me must surely appreciate the importance of self-interest in molding human behavior), student self-interest may in practice reinforce the professor self-interest rather than clashing with it.

Related Posts (on one page):

  1. Why Law Schools Generally Grade Based on a Single End-of-Semester Exam:
  2. Exams as a "Rewarding Experience":
When You Find an Error in a WESTLAW or LEXIS Version of a Case,

do something nice and call the companies to have them correct it. WESTLAW is at 1-800-REF-ATTY; LEXIS is at 1-800-543-6862 (no official mnemonic, and the best that I could get from is LIE-NUMB or KID-NUMB). That way future lawyers, law students, legal academics, judges, and law clerks won't be tripped up by it. It's quick and easy, and you'll feel you've done your Good Deed For The Day.

Little-Known Weird Legal Fact Leads to Glitch in Court of Appeals Opinion:

The glitch is at the start of this paragraph from Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., handed down May 4 by the Ninth Circuit:

The phrase “equity and good conscience” in our judicial usage is coterminous with the first opinions of the United States Supreme Court. See Hollingsworth v. Ogle, 1 U.S. 257 (1788). Undoubtedly in its earlier usage, equity brought to mind a fairness sought by the chancery courts that transcended statutory law and “good conscience” referred to an interior moral arbiter regarded as the voice of God. As the phrase has become domesticated and invoked in modern times, see, Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998), the distinction of its two elements has blurred, and it has a secular rather than religious cast. Still, its unique appearance in Rule 19 of the Federal Rules of Civil Procedure emphasizes the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge’s choice of solutions, a choice to be marked by “mercy and practicality.” Hecht v. Bowles, 321 U.S. 321, 329 (1944).

Some careful readers might notice that the Hollingsworth cite gives a year of 1788, and conclude that this is an error, since the U.S. Constitution didn't go into effect until 1789 and the U.S. Supreme Court didn't sit until 1790.

But Hollingsworth is indeed a case from the April 1788 Term -- it's just not a case from the April 1788 Term of the United States Supreme Court. Volume 1 of U.S. Reports is occupied entirely by cases from Pennsylvania; Hollingsworth is a Pennsylvania Supreme Court case, as the printed volume and LEXIS report (though WESTLAW erroneously calls it a United States Supreme Court case). Volumes 2 and 3 of U.S. Reports also contain cases from many courts, include Pennsylvania courts, lower federal courts, and the U.S. Supreme Court. My understanding is that Alexander Dallas, the entrepreneur who published the cases, included the other courts' cases to make the volumes more salable, since the U.S. Supreme Court produced relatively few cases in its early years.

In any case, the earliest U.S. Supreme Court reference to "equity and good conscience" that I could find in the WESTLAW SCT-OLD comes from the 1804 Term; the first two references, from 1788 and 1796 Terms, come from the Pennsylvania Supreme Court. This doesn't affect the Ninth Circuit opinion's substantive point; and the prase "equity and good conscience" does indeed seem to be roughly contemporaneous in American usage with the founding of the Republic, and likely dates back even before the Revolution in Colonial usage. (I express no view on the historical relationship between the concepts of "equity and good conscience" and "voice of God.") But the incident should be a reminder that "U.S. Reports" doesn't always mean "U.S. Supreme Court."

Related Posts (on one page):

  1. The Law Working Itself Pure:
  2. Little-Known Weird Legal Fact Leads to Glitch in Court of Appeals Opinion:
Seeking Your Advice About Academic Legal Writing:

Foundation Press will be putting out the third edition of my Academic Legal Writing book in Fall 2007. I have some ideas of my own for improving the book, but I'd love to get suggestions from readers (and others). Hence, a few questions:

What would it be good for the book to cover that it doesn't already cover?

What does the book already cover that it should cover in more detail?

What does the book say that you think it should stress more?

What does the book say that you think is wrong or counterproductive?

I'd love to see your input on this. Thanks!

Voice vs. Athletic Ability:

A New York Times review of a PBS program on Annie Oakley -- generally quite a positive review -- begins:

Plenty of women accomplished plenty of things in the first century or so of United States history, so it's a little dismaying to think that the country's first female superstar was famous not for her voice or her musicianship or her brain, but for her ability to shoot firearms accurately....

Even if her particular talent is not to your liking, it would be difficult to watch this program and not be awed by the woman's life....

Why exactly should it be dismaying to think that the country's first female superstar was famous not for singing ability (one form of trainable physical talent) but for athletic ability (another form of trainable physical talent)? It seems to me that, if anything, female success in a traditionally masculine field (sports generally, and target-shooting in particular) would help advance respect for women and equality for women more than female success in a less traditionally masculine field (singing).

Moreover, even if one opposes private gun ownership for self-defense, Oakley wasn't famous for that -- she was famous for marksmanship, which was then and now a sport (today, an Olympic sport).

Now naturally the author of the article is entitled to dislike marksmanship as a sport, and to find everything having to do with guns to be icky (even when the only thing being damaged is targets). But it does seem to be telling that the dislike of guns among some, dislike that would lead to two mentions in the first two paragraphs of the review (and "a little dismay[]" that a woman superstar would excel at sports rather than at singing), extends to sporting use of guns as well as to military, defending, and hunting uses.

Saddam Wasn't a Feminist.--

There is an interesting article by A. Yasmine Rassam at on how the plight of women under Saddam compares to the current efforts to whitewash that record:

A recent report by "Global Exchange" and "Code Pink" entitled "Iraqi Women Under Siege" [available here] concluded that "the occupation of Iraq has not resulted in greater equality and freedom for women" than they had under Saddam Hussein. Published by two radical feminist anti-war groups whose primary activities include protesting military recruiting stations, organizing anti-WTO protests and sympathizing with the regimes in North Korea and Cuba, this report echoes a long line of blatant pronouncements. Hillary Clinton who once said that after liberation there were "pullbacks in the rights that [women] were given under Saddam Hussein" and Howard Dean's infamous remark that "Iraqi women were better off under Saddam Hussein." . . .

Much of the anti-war propagandists' defense of Saddam as a champion of women's rights rests on his willingness to allow women to vote (for him), drive cars, own property, get an education and work. What they choose to ignore, however, is the systematic rapes, torture, beheadings, honor killings, forced fertility programs, and declining literacy rates that also characterized Saddam's regime. A few examples can only begin to illustrate the cruelty and suffering endured by thousands of Iraqi women. One torture technique favored by Saddam's henchman and his sons involved raping a detainee's mother or sister in front of him until he talked. In Saddam's torture chambers women, when not tortured and raped, spent years in dark jails. If lucky, their suckling children were allowed to be with them. In most cases, however, these children were considered a nuisance to be disposed of; mass graves currently being uncovered contain many corpses of children buried alive with their mothers.

During Saddam's war with Iran, nearly an entire generation of Iraqi men were killed, injured or captured, leaving a dearth of men of military age in Iraqi society. As a result, Saddam launched "fertility campaigns" that forcibly administered fertility drugs to school girls as young as 10 in an effort to drive up the population rate.

After the Gulf War--particularly after crushing the Shiite and Kurdish uprisings of 1991--Saddam reverted to tribal and "Islamic" traditions as a means to consolidate power. Iraqi women paid the heaviest price for his new-found piety. Many women were removed from government jobs and were not allowed to travel without the permission of a male relative. Men were exempted from punishment for "honor" killings--killings carried out on female relatives who had supposedly "shamed" their family. An estimated 4,000 women died from honor killings in the ensuing years. By 2000, Iraqi women, once considered the most highly educated in the Middle East, had literacy levels of only 23%.

Under the pretext of fighting prostitution in 2000, Saddam's Fedayeen forces beheaded 200 women "dissidents" and dumped their head on their families doorsteps for public display. These women obviously lost whatever "rights" granted to them once they got in Saddam's way.


In the comments, Blar points out that many of Rassam's points are mentioned in the Report she is criticizing.

He expands his comment on his blog.

Blar's comments are a necessary corrective to Rassam's article, which definitely should have disclosed that many of her points were mentioned in the report, even if they were given little weight in the Report's conclusions.

The Report makes a number of questionable claims, such as, "Illiteracy is on the rise." From what I could determine from searching online, it appears that female literacy is up from the appalling 23% it was in 2000. The Report also blames the low female literacy mostly on impoverishment caused by the embargo (with little candor on the "oil for palaces" or "oil for weapons" program): “Impoverishment forced families to keep their female children out of school, and illiteracy soared.” Blar quotes this line as if it were a negation of Rassam's point.

Human Rights Watch, no friend of the Bush administration, paints a somewhat more colorful picture of the actions of Saddam's regime:

"In 1998, the government reportedly dismissed all females working as secretaries in governmental agencies. In June 2000, it also reportedly enacted a law requiring all state ministries to put restrictions on women working outside the home. Women's freedom to travel abroad was also legally restricted and formerly co-educational high schools were required by law to provide single-sex education only, further reflecting the reversion to religious and tribal traditions.”

To get a more general sense of the strengths and weaknesses of the Report, consider the first paragraph in the Report’s Executive Summary:

From 1958 to the 1990s, Iraq provided more rights and freedoms for women and girls than most of its neighbors. Though Saddam Hussein’s dictatorial government and 12 years of severe sanctions reduced these opportunities, Iraqi women, before the occupation, were still active in many aspects of their society. Now that situation has dramatically changed. While women in Iraqi Kurdistan have made gains since the U.S. invasion, in the rest of the country, women today face violence, hardship and fear daily, and their futures are more uncertain than ever.
This seems both to recognize the terrible security problems and to underplay the problems for women under Saddam's regime.

The report ends with this non sequitur:

And most importantly, women around the world, especially those from the countries that are participating in the occupation of Iraq, should push to end their governments’ support for the war. None of us can sit and talk about empowering Iraqi women, while the occupation continues to disempower the Iraqi people.

How ending the occupation would empower Iraqi women is not mentioned. And the threats of radical Islam or an Iranian-style regime that the Report itself expresses would seem to be greater dangers if the US were to withdraw any time soon.

Tom Cruise, Mission Disappointing.--

The opening box office totals for Mission Impossible III, while big, were less than expected:

Paramount Pictures and its leading star, Tom Cruise, failed to live up to expectations this weekend when "Mission: Impossible III" opened to weak numbers at the domestic box office despite a barrage of public appearances by Mr. Cruise to promote the film.

The poor opening followed nearly a year of public mocking of Mr. Cruise, Hollywood's most reliable star and the centerpiece of Paramount's biggest franchise, across the pop culture landscape — by Internet bloggers and late-night comedians and constantly on tabloid covers — after his public, over-the-top wooing of the actress Katie Holmes and his outspoken remarks against psychiatry and antidepressant medications last year.

Opening in 4,054 theaters, "Mission: Impossible III" had estimated ticket sales of $48 million for the weekend, according to Exhibitor Relations, almost $10 million less than the second "Mission: Impossible" movie in 2000, which opened in 385 fewer theaters and at lower ticket prices. Based on market research, the film had been expected to reach about $65 million at the box office.

Many in Hollywood had been watching expectantly to see if the negative publicity surrounding Mr. Cruise would have an effect at the box office, and this weekend — as "Mission: Impossible III" kicked off the film industry's peak summer moviegoing period — it appeared as if it had.

Paramount reported that "Mission: Impossible III" took in $118 million worldwide in 55 countries, doing well in Asia, Latin America and Britain and poorly in Germany, Austria and Switzerland, where there is public opposition to Mr. Cruise's championing of his religion, Scientology.

Or it may just have been the "South Park" factor.

(click to enlarge)

Jimmy Carter, Advocate for Hamas.--

I have to confess that this Jimmy Carter op-ed in the International Herald Tribune left me almost speechless (tip to LGF):

It is almost a miracle that the Palestinians have been able to orchestrate three elections during the past 10 years, all of which have been honest, fair, strongly contested, without violence and with the results accepted by winners and losers. Among the 62 elections that have been monitored by us at the Carter Center, these are among the best in portraying the will of the people.

One clear reason for the surprising Hamas victory for legislative seats was that the voters were in despair about prospects for peace. With American acquiescence, the Israelis had avoided any substantive peace talks for more than five years, regardless of who had been chosen to represent the Palestinian side as interlocutor.

The day after his party lost the election, Abbas told me that his own struggling government could not sustain itself financially with their daily lives and economy so severely disrupted, and access from Palestine to Israel and the outside world almost totally restricted. They were already $900 million in debt and had no way to meet the payroll for the following month. The additional restraints imposed on the new government are a planned and deliberate catastrophe for the citizens of the occupied territories, in hopes that Hamas will yield to the economic pressure.

With all their faults, Hamas leaders have continued to honor a temporary cease-fire, or hudna, during the past 18 months, and their spokesman told me that this "can be extended for two, 10 or even 50 years if the Israelis will reciprocate." Although Hamas leaders have refused to recognize the state of Israel while their territory is being occupied, Prime Minister Ismail Haniyeh has expressed approval for peace talks between Abbas and Prime Minister Ehud Olmert of Israel. He added that if these negotiations result in an agreement that can be accepted by Palestinians, then the Hamas position regarding Israel would be changed.

Regardless of these intricate and long-term political interrelationships, it is unconscionable for Israel, the United States and others under their influence to continue punishing the innocent and already persecuted people of Palestine. The Israelis are withholding approximately $55 million a month in taxes and customs duties that, without dispute, belong to the Palestinians. Although some Arab nations have allocated funds for humanitarian purposes to alleviate human suffering, the U.S. government is threatening the financial existence of any Jordanian or other bank that dares to transfer this assistance into Palestine.

The most accessible writing on Jimmy Carter's special relationship with Arafat and the Palestinians is Jay Nordlinger's. Although you should "read the whole thing," here is an excerpt:

For the past many years, he has been passionately anti-Israel, more or less embracing the PLO line. He has repeatedly been at the service of Yasser Arafat. After the Gulf War, the PLO chief was on the outs with Saudi Arabia, because he had backed Saddam Hussein. So he asked Carter to fly to Riyadh to smooth things over and restore Saudi funding to him — which he did. Arabs are also robust funders of the Carter Center, the ex-president's redoubt and vehicle in Atlanta.

While Carter has many warm words for Arafat and for dictators around the world (as we will see shortly), he has nothing but contempt and scorn for the democratic leader in Israel, Ariel Sharon. In Carter's eyes, the Arab-Israeli conflict is not unlike the pre-civil-rights South, with the Israelis as the oppressive whites and the Palestinians as the innocent blacks. As he told his chronicler, Douglas Brinkley, "The intifada exposed the injustice Palestinians suffered, just like Bull Connor's mad dogs in Birmingham."


Last month [April 2002], Carter penned a remarkable op-ed piece for the New York Times, entitled "America Can Persuade Israel to Make a Just Peace." In it, he let it all hang out as an apologist for Arafat and a bulldog against Sharon. Before getting to that piece, however, we should be clear about just how attached to Arafat and his cause the ex-president is. As Brinkley writes in his book The Unfinished Presidency — about Carter's celebrated post-White House years — "there was no world leader Jimmy Carter was more eager to know than Yasir Arafat." The former president "felt certain affinities with the Palestinian: a tendency toward hyperactivity and a workaholic disposition...."

In their first meeting — held in 1990 — Carter boasted of his sternness toward Israel. For example, he said, "When I bring up the [PLO] charter, you should not be concerned that I am biased. I am much more harsh with the Israelis." Arafat, for his part, complained about the Reagan administration's alleged "betrayals." Rosalynn Carter, who was taking notes for her husband, interjected, "You don't have to convince us!" which, as Brinkley records, "elicited gales of laughter all round." The ex-president "agreed that the Reagan administration was not renowned as promise keepers" (this, to Arafat).

Later on, the parties exchanged gifts. "When Arafat presented Rosalynn with a dress for daughter Amy, decorated with Palestinian embroidery, he mentioned that he had followed Amy's political activities with great interest, especially her anti-CIA stance in Nicaragua and antiapartheid activities in South Africa." Then,

. . . in the course of conversation, Rosalynn began describing her revulsion and dismay over a story about Israeli troops dumping garbage in front of a Palestinian orphanage during the Carters' trip to the West Bank. Innocent Palestinian children were being treated as trash. As she recalled the inexcusable humiliation of their treatment, her eyes filled with tears. And the men, too, began to sob. Carter grasped the hands of his companions, and the three briefly prayed together. Then they dried their tears, embraced, and said farewell.

Shortly thereafter, Carter actually acted as PR adviser and speechwriter to Arafat. As Brinkley says, he "drafted on his home computer the strategy and wording for a generic speech Arafat was to deliver soon for Western ears . . ." The entire composition is nauseating, but its flavor can be captured in a single line: "Our people, who face Israeli bullets, have no weapons: only a few stones remaining when our homes are destroyed by Israeli bulldozers."

If Carter wrote Arafat's Western-ears-only speeches, Arafat could have written much of Carter's recent [spring 2002] New York Times op-ed. The former president began by describing Arafat's 1996 "election" as a "democratic" one, "well organized, open and fair." (It was "well organized," all right.) Of course, this "election" was like any other in the Arab world [up through May 2002], which is to say, rigged from beginning to end. As former CIA director James Woolsey told journalist Joel Mowbray recently, "Arafat was essentially 'elected' the same way Stalin was, but not nearly as democratically as Hitler, who at least had actual opponents." Arafat's "opponent" was a prop.

It seems to me that the line between being one of our best ex-Presidents and one of our worst is an awfully fine one.

Sunday, May 7, 2006

The Catholic Church, the da Vinci Code, and "Censorship Envy":

As senior Conspirator Eugene Volokh has warned, one of the dangers of censoring "offensive" speech is "censorship envy." If one group is given the power to suppress speech offensive to it, others are likely to press harder to get the same privilege for themselves. As Eugene points out in the post linked above, many of the European Muslims who sought to suppress the Mohammed cartoons were partly motivated by the fact that many European countries ban Holocaust denial and other anti-Semitic speech.

This dynamic is clearly at work in the efforts of some Catholic leaders to ban the Da Vinci Code. As Cardinal Francis Arinze, one of the chief advocates of banning The Code puts it, "[t]here are some other religions which if you insult their founder they will not be just talking. They will make it painfully clear to you." The Reuters article where this quote appears notes that the Cardinal was referring to Muslim calls for censoring the Mohammed cartoons. He and at least one other cardinal "asserted that other religions would never stand for offences against their beliefs and that Christians should get tough [too]."

The cardinals are arguing that, if Muslims have the right to ban speech offensive to them, so too should Christians. Just as the Muslims previously made the same argument with respect to Jews! The rapid spread of "censorship envy" makes it all the more important to crush this vicious dynamic at its roots - by denying EVERY group the power to censor its critics. It is true that some of these critics are more offensive than others. Certainly, Holocaust denial is far worse than anything in the Da Vinci Code. But "censorship envy" ensures that such distinctions are unlikely to deter the spread of repression once it has begun.

Update: It is worth noting that Cardinal Arinze - the leading would-be censor of the Da Vinci Code - is not a minor fringe figure. As the Reuters piece I linked to notes, he was viewed as a serious contender for the papacy when John Paul II died last year. And he will likely be a contender again after the passing of the current pope (who is almost 80 years old).

Related Posts (on one page):

  1. The Catholic Church, the da Vinci Code, and "Censorship Envy":
  2. Cardinal Wants Da Vinci Code Legally Suppressed:
Estimating the Wealth of Absolute Dictators - Implications for Economic Reform in Nondemocratic Societies:

In the post linked below, Jim Lindgren discusses Forbes' estimate that Fidel Castro has a net worth of $900 million. However impressive this figure seems, it actually understates Castro's real wealth. As an absolute dictator, Fidel can appropriate for his use virtually any asset - or person - in Cuba, anytime he wants. His true net worth is the total value of everything in Cuba, possibly subtracting the expenses of the secret police, the military, and the other institutions needed to keep him in power.

This way of looking at Castro's wealth helps explain why Castro and other similar rulers are often reluctant to undertake market-oriented economic reforms that would increase the total wealth of their countries. In order to do so, they would have to give at least some of their subjects enforceable property rights that the dictator could not expropriate at whim.

Let us assume that the total wealth of Cuba right now is X, and Castro effectively "owns" 100% of it. After the introduction of market-based reforms, perhaps total wealth increases to 2X, but Castro now controls "only" 45%. 45% of 2X=0.9X and is of course a smaller amount than 100% of X. In this deliberately oversimplified scenario, Castro's wealth actually goes down, despite the fact that total Cuban wealth has doubled. Clearly, Castro has no incentive to want that to happen! And that doesn't even factor in the danger that allowing the creation of major concentrations of wealth outside Castro's control could provide a material base for opposition activity intended to topple his regime. If that happens, he might lose everything.

The above analysis assumes that the dictator is motivated solely by narrow self-interest. Real-world dictators (Castro included) are sometimes also motivated by ideology. But an ideology that justifies the rule of an absolute dictator (usually some variant of socialism, fascism, or nationalism) is unlikely to look favorably on market reforms, or any other reforms that constrain the power of the state. If it did, it probably would not have appealed to the dictator and his supporters in the first place.

Finally, the theory also helps explain why dictatorial regimes that do institute market-oriented economic reforms usually do so only if either 1) the dictator's power falls well short of being absolute (e.g. - Lee Kuan Yew, or Pinochet), or 2) an absolute dictator dies and is replaced by some form of collective leadership (China after Mao). In such regimes, the rulers have less to lose from market-based reforms because they don't start off owning everything or even controlling everything in the public sector. They might even be able to force their rivals within the government bureaucracy to bear the costs of creating property rights for the citizenry.

I certainly do not mean to suggest that this simplified theory fully explains either Castro's policies or those of other dictators. But it does perhaps identify an important dynamic.

Related Posts (on one page):

  1. Estimating the Wealth of Absolute Dictators - Implications for Economic Reform in Nondemocratic Societies:
  2. Forbes Says that Castro is Worth 900 Million Dollars.--
Blogger Arrested in Egypt:

Details at Instapundit.

Sunday Song Lyric:

I've had lots of requests to bring back the "Sunday Song Lyric." I won't promise to post one every week, but I'll try to post them when the inspiration strikes. I'm also happy to take reader suggestions via e-mail.

With all the talk of law school exams (a subject for Sunday Song Lyrics before), Redheadlaw7 is somehow reminded of Tears for Fears' "Mad World." I've always liked the song, but I hope it doesn't capture the mood of my students after my Constitutional Law exam. Written by Tears for Fears Roland Orzabal, the song was also covered by Gary Jules and Michael Andrews for the Donnie Darko soundtrack. Here are the lyrics:

All around me are familiar faces
Worn out places, Worn out faces
Bright and early for their daily races
Going nowhere, going nowhere
Their tears are filling up their glasses
No expression, no expression
Hide my head I want to drown my sorrow
No tomorrow, no tomorrow

And I find it kind of funny
I find it kind of sad
The dreams in which I´m dying
Are the best I´ve ever had
I find it hard to tell you
´cause I find it hard to take
When people run in circles
It´s a very very
Mad world
Mad world

Children waiting for the day they feel good
Happy birthday, happy birthday
Made to feel the way that every child should
Sit and listen, sit and listen
Went to school and I was very nervous
No one knew me, no one knew me
Now the teacher tells me what´s my lesson
Look right through me, look right through me

And I find it kind of funny
I find it kind of sad
The dreams in which I´m dying
Are the best I´ve ever had
I find it hard to tell you
´cause I find it hard to take
When people run in circles
It´s a very very
Mad world
Mad world
Enlarging your world

Cardinal Wants Da Vinci Code Legally Suppressed:

According to Reuters,

In the latest Vatican broadside against "The Da Vinci Code", a leading cardinal says Christians should respond to the book and film with legal action because both offend Christ and the Church he founded. Cardinal Francis Arinze, a Nigerian who was considered a candidate for pope last year, made his strong comments in a documentary called "The Da Vinci Code -- A Masterful Deception." ...

"Christians must not just sit back and say it is enough for us to forgive and to forget," Arinze said in the documentary made by Rome film maker Mario Biasetti for Rome Reports, a Catholic film agency specializing in religious affairs.

"Sometimes it is our duty to do something practical. So it is not I who will tell all Christians what to do but some know legal means which can be taken in order to get the other person to respect the rights of others," Arinze said.

"This is one of the fundamental human rights: that we should be respected, our religious beliefs respected, and our founder Jesus Christ respected," he said, without elaborating on what legal means he had in mind....

I had hoped that the Catholic Church had learned that it's wrong to try to use legal coercion to suppress religious views that one disapproves of -- and that no religion should have a legal right to be free from criticism or disagreement (or for that matter novels it dislikes). I'm sorry to see that at least one leading cardinal takes a different view. Those of us who condemned Moslem leaders who called for legal suppression of the Mohammed cartoons (not just those who called for violence, but also those who called for government action) should condemn this Catholic leader's call as well.

Thanks to Robert Bidinotto for the pointer.

Related Posts (on one page):

  1. The Catholic Church, the da Vinci Code, and "Censorship Envy":
  2. Cardinal Wants Da Vinci Code Legally Suppressed:
Did Ted Sorenson Ghostwrite Profiles in Courage?--

In the course of mulling over Ted Sorenson's eloquent 2004 Commencement Address to graduating students at the New School, I began to think that it was a a bit odd that Sorenson should speak so eloquently about integrity, since I did't think that he had ever delineated the nature of his contributions to the writing of JFK's Profiles in Courage.

For those interested in the question, Cecil Adams in The Straight Dope reports what historian and JFK biographer Herbert Parmet determined when he went through JFK's papers:

The most thorough analysis of who did what has come from historian Herbert Parmet in Jack: The Struggles of John F. Kennedy (1980). Parmet interviewed the participants and reviewed a crateful of papers in the Kennedy Library. He found that Kennedy contributed some notes, mostly on John Quincy Adams, but little that made it into the finished product. "There is no evidence of a Kennedy draft for the overwhelming bulk of the book," Parmet writes. While "the choices, message, and tone of the volume are unmistakably Kennedy's," the actual work was "left to committee labor." The "literary craftsmanship [was] clearly Sorensen's, and he gave the book both the drama and flow that made for readability." Parmet, like everyone else, shrinks from saying Sorensen was the book's ghostwriter, but clearly he was.

Actually, it appears that JFK's contributions to the book were more substantial than I had thought. Apparently, at least the book was JFK's idea, and he was intimately involved in putting it together, even if he wrote very little of it.

And Adams says that Parmet "interviewed the participants," including presumably Sorenson, though from Adams's account Parmet's conclusion seems to be based more on the Kennedy papers than on the interviews.

Nonetheless, has Sorenson ever publicly admitted that he wrote almost all of the text?

Would readers who have Parmet's JFK biography (vol. 1) in their library check to see what he reports Sorenson as having said on the question of authorship (and post the results in the comments)?

Related Posts (on one page):

  1. Did Ted Sorenson Ghostwrite Profiles in Courage?--
  2. Political Commencement Addresses.--
  3. Conservative Commencement Speakers Not Welcome.--
Unwanted Touching, Indecent Exposure, and Sexual Arousal:

Why do we treat unwanted touching of some parts of the body different from unwanted touching of other parts of the body? (Obviously, I'm referring here to unwanted touching, not beating someone, holding someone down, or otherwise injuring them.) And why do we treat being nude or having sex in front of unconsenting others as a crime?

It seems to me that the two may be related. In an earlier post, I suggested that one similarity may be that both may involve "a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you." If someone rubs a man's penis in a public place, for instance, the man may feel involuntary sexual arousal (though even if the touching is arousing, it might be unpleasant, precisely because it's done without the man's permission). Likewise, if two people are having sex in a public place, passersby may also feel such involuntary arousal (though I stress again that the arousal may be disgusting rather than on balance pleasant, precisely because it's unexpected and unconsented to). Such messing around with others' hormonal systems, it seems to me, is troubling in a way that an unwanted pat on the back or the ounesthetic but nonsexual display of, say, an unsightly belly is not.

On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: "the likelihood that the other person is deriving some sort of sexual arousal from touching you." Even if you feel entirely unaroused (neither pleasantly aroused nor, more likely, unpleasantly aroused) by someone caressing your private parts in public, you may feel quite upset by the likelihood — not certainty, but likelihood — that this other person is deriving some arousal from the action, and from your involuntary involvement in the action.

That too helps explain why we treat unwanted pats on the back differently from unwanted pats on the breast or on the genitals. (To shift for a moment to a much more intrusive but necessary touching, I take it that many of us would be quite upset if we learned that our gynecologist, urologist, or proctologist, who has to touch our private parts, is actually being aroused by the touching, or, worse still, is engaging in the touching because he wants to be aroused by it. Here, we probably must acknowledge some risk of the arousal — but I suspect most of us try to put it out of our minds, and most certainly would not enjoy learning that the risk in this instance is reality.)

And it might explain why we're quite upset by at least some forms of public nudity and especially public sex. If I see someone masturbating in a public place, I'll probably assume that he's doing precisely because he gets his jollies from being seen by unexpecting passersby (maybe not passersby quite like me, but at least some kinds of passersby). Perhaps it is this sense that the person is likely to be deriving some sexual arousal from others' involvement in his act, even if the involvement is simply observing, that makes it an offense against those others.

I'm not sure how apt this explanation ultimately is for all cases of public sex or public nudity, especially ones where it doesn't seem terribly likely that the people engaged in the act really are doing it for the sake of sexual exhibitionism. But the risk that sexual exhibitionism is part of the motive, and thus that the viewers are in a sense being involuntarily used (though without physical touching) for the actor's sexual gratification, seems to be present in at least many instances of public sex and nudity, to the point that a prophylactic rule against such conduct (except when only consenting viewers are likely to be present) seems sensible.

As I said in the earlier post, I'm not positive about this, but it seems to me that there's something interesting and possibly important in play here: Some conduct that sexually arouses a person through the unwanted participation — even visual — of another may be improper, even if similar conduct in which sexual arousal is absent is generally fine.

Political Commencement Addresses.--

The current flaps over John McCain speaking at the New School and Columbia graduations and Condi Rice speaking at Boston College induced me to look a bit closer at whom schools invite to speak.

The recent New School Commencement speakers have been Justice Stephen Breyer (2005), Ted Sorenson (2004), John Hollander (2003), and Bernard Lewis (2002). Both Breyer and Lewis gave essentially nonpartisan talks, Lewis's being the dullest of the four commencement addresses that I read on the New School's website. Of course, a speech is meant to be heard, not read, so judging from the text may be misleading.

Hollander gave perhaps the most nuanced and profound talk, which certainly wasn't devoid of political content (nor should it be: politics is important). Excerpt:

These days I am guarded in my use of the word "loyalty", particularly when I speak of anything like a patria. For in these days I'm reminded more and more of Samuel Johnson’s celebrated claim that patriotism is the last refuge of a scoundrel. I had grown up feeling myself to be quite patriotic , yet at the same time distrusting people who loudly asserted such patriotic feelings of their own. For me these two notions walked hand in hand, and not in opposition. Chauvinism felt like an affront–and certainly an embarrassment to–what I felt was my relation to my native land. So that in high school and first encountering Johnson’s remark, I took it as sufficiently naughty to be true, and sufficiently true to be more than merely naughty. In any case, it seemed to vindicate my feelings. But also, like most people, I misunderstood it by not reading it carefully enough. In saying that scoundrels would appeal to their own or their listeners' patriotism when all other claims or arguments failed them, Dr. Johnson was not saying that only scoundrels were patriots or vice versa; but he was observing that if you walked through the door of the sacred house of patriotism, you'd certainly find a lot of scoundrels there among the other virtuous residents. This didn't mean that patriotism was itself a bad idea or institution. It did point out one of patriotism’s particular defects, namely that it attracts the most desperate, coarse and sleazy seekers after justification. But patriotism has to be protected from scoundrels, and though this will never be taught in schools, it remains one of the many conclusions toward which education in and for a free society must lead.

On the surface, Hollander seems to be attacking the right (and probably mostly he is), but he is doing so much more--making a profound point about both the dangers of patriotism and the need for it. Hollander also advanced the idea (enshrined in the University of Chicago's Kalven Report) that universities should not, as a collective, take political positions. I would have loved to have heard this brilliant address.

The address by Ted Sorenson, former speechwriter for JFK and Ted Kennedy, is (as he puts it) "not a speech," but rather "a cry from the heart." Excerpt:

This is not a speech. Two weeks ago I set aside the speech I prepared. This is a cry from the heart, a lamentation for the loss of this country’s goodness and therefore its greatness.

Future historians studying the decline and fall of America will mark this as the time the tide began to turn – toward a mean-spirited mediocrity in place of a noble beacon.

For me the final blow was American guards laughing over the naked, helpless bodies of abused prisoners in Iraq. "There is a time to laugh," the Bible tells us, "and a time to weep." Today I weep for the country I love, the country I proudly served, the country to which my four grandparents sailed over a century ago with hopes for a new land of peace and freedom. I cannot remain silent when that country is in the deepest trouble of my lifetime.

I am not talking only about the prison abuse scandal–that stench will someday subside. Nor am I referring only to the Iraq war—that too will pass—nor to any one political leader or party. This is no time for politics as usual, in which no one responsible admits responsibility, no one genuinely apologizes, no one resigns and everyone else is blamed.

The damage done to this country by its own misconduct in the last few months and years, to its very heart and soul, is far greater and longer lasting than any damage that any terrorist could possibly inflict upon us.

The stain on our credibility, our reputation for decency and integrity, will not quickly wash away.

This is extraordinarily eloquent, but (despite Sorenson's protestations to the contrary) it is strongly partisan. This, of course, does not make anything he said wrong, or even necessarily inappropriate for a commencement address, where if you say something partisan, you should pull back from the brink (as Sorenson does) of pointing fingers, even though everyone knows what you are saying. I would have enjoyed hearing that speech, as I would have enjoyed a similarly partisan one from the other side the following year, if (hypothetically) such a speech were to be given by an eloquent Republican speechwriter such as Peggy Noonan.

(To read about whom Harvard, Penn, and the Northwestern Law School have had as commencement speakers, click on "Show Hidden Text" and continue reading below the fold.)

Conservative Commencement Speakers Not Welcome.--

At the New School, some students, faculty, and staff are angry that John McCain will be the commencement speaker. As an excellent article at Inside Higher Ed. recounts, McCain was invited by university president and former Senator Bob Kerrey:

Kerrey said the senator’s acceptance “is a big honor for our graduates and their families.”

But hundreds of students, staff and faculty members at the institution of about 9,000 students have signed paper and online petitions that seek to revoke the invitation.

Several students and faculty members pointed out that McCain has supported banning gay marriage in Arizona, and that, three days before his visit to the New School, McCain will be speaking at Liberty University, whose founder and chancellor, Rev. Jerry Falwell, has openly expressed his opposition to homosexuality.

“Up until a few months ago, I was happy he was coming,” said Anthony Szczurek, a New School freshman. “I think the thing that bothers me the most is him speaking at Jerry Falwell’s school.” Szczurek said that he thinks it’s not appropriate to have a speaker that is hostile to the gay community speak on a day of celebration at an institution with a vibrant gay community.

Harper Keenan, a sophomore, has helped organize the dissent. “In all of our classes we’re taught the value of inclusion of all people,” he said, “and we’re taught to question our leaders.”

The University Student Senate wrote a letter to Kerrey saying that the commencement speaker “commands a higher profile than an ordinary lecturer, and may be assumed to have the implicit endorsement of the university community.”

McCain, who will receive an honorary degree from the New School, pointed out on the Fox News Network that the New School is a “somewhat liberal institution,” and some students and faculty members at the university think that McCain is just using his visit to balance out the Liberty stop and seem more moderate than he is.

“John McCain is a conservative politician who supports South Dakota’s ban on abortion, and he’s avidly pro-Iraq War,” said Gregory Tewksbury, a part time faculty member at the New School. “People feel like [the invitation to McCain] made commencement into a political platform.”

Tewksbury added that this isn’t a free speech issue, and that he had no problem with Paul Wolfowitz, President Bush’s former deputy secretary of defense, having given a speech at the New School in 2003. “There was give a[nd] take,” he said, whereas at commencement, “there will be no chance to engage any of his views.”

Students at the New School aren’t the only ones revolting against politically charged graduation speakers. Hundreds of students and faculty members at Boston College have voiced their opposition to having Condoleezza Rice, the U.S. secretary of state, appear at graduation and receive an honorary degree. . . .

McCain will also be speaking at . . . Columbia University for the undergraduate college’s Class Day, the first of two days of graduation ceremonies.

At Columbia, Laura Cordetti, a senior, has organized opposition to McCain. When Cordetti heard McCain would be speaking, she started a Facebook group — “John McCain Does Not Speak For Us” — that quickly started attracting other students. As at the New School, much of the opposition is in light of McCain’s stop at Liberty. Inviting someone “who has directly been hurting gay people in a legislative way to come here on a day which is supposed to be about celebrating what we stand for is insulting.”

Cordetti, who is graduating, likely won’t have champagne for McCain after his talk. She said that she isn’t trying to trample on free speech, but that having McCain for graduation is like inviting someone you don’t like to your party.

Kerrey said that McCain is “clearly within the mainstream of American political thinking today.”

The New School petition, which is short and clearly written is here. It currently has 409 signatures.

The idea of diversity is to listen to people who are saying different things that you might not have thought of or agree with, not just to listen to your friends and people like your friends. As Randy Barnett once said, "People want different voices so long as they are all saying the same thing." Indeed, Columbia's Laura Cordetti thinks "that having McCain for graduation is like inviting someone you don’t like to your party"--in other words, having to listen to people with whom one differs is a bad thing.

A similar lack of perspective is suggested in the comments of New School part-time professor Gregory Tewksbury, who "had no problem with Paul Wolfowitz . . . having given a speech at the New School in 2003" because “There was give a[nd] take.” Of course, it's generally better in an academic setting to have a give-and-take, but (as Tewksbury notes) that's not realistic at graduation. Unfortunately, if McCain says anything partisan or offensive, Tewksbury will just have to suffer in silence, like many students hearing partisan speeches have had to do at so many graduations.

Note that in an otherwise superb story David Epstein at Inside Higher Ed. writes: "Students at the New School aren’t the only ones revolting against politically charged graduation speakers." True — but the implication here is that the reaction is to "politically charged graduation speakers," rather than just to the politicians on the right discussed in the article.

As Bob Kerrey notes, McCain is "clearly within the mainstream of American political thinking today.” Indeed, it is likely that, on a range of issues, McCain is closer to the political center than those protesting his speeches. One would expect that universities would be more open to the views of the political mainstream, whether correct or wrong.

I will have more on politics and convention speakers in another post.

Related Posts (on one page):

  1. Did Ted Sorenson Ghostwrite Profiles in Courage?--
  2. Political Commencement Addresses.--
  3. Conservative Commencement Speakers Not Welcome.--
Biased Media Coverage of the Illegal Alien May Day Rallies

That's the topic of my latest Rocky Mountain News column, which examines how the Denver papers glossed over the significance of May 1 for the rally date, ignored the role of A.N.S.W.E.R., pretended that the reconquista does not exist, claimed that illegal aliens are merely demanding their "rights," defamed critics of illegal immigration by calling them "anti-immigrant," and too often used the ridiculous phrase "undocumented worker."

Regarding the final item, I wrote:

If the newspapers are going to continue using "undocumented worker," then the papers should, to be consistent, start writing that illegal users of morphine are really "undocumented patients," that bank embezzlers are "undocumented withdrawers," school truants are "undocumented vacationers," people who drive after their licenses have been revoked are "undocumented drivers," and 15-year-olds who use fake IDs to buy vodka are "undocumented drinkers."
On a completely different topic, the Independence Institute's new podcast series, iVoices, has a new 10 minute podcast by me discussing current trends in gun laws.

Blogging Break:

I'll be busy for the next month or so getting ready to leave Ann Arbor (as my visit at Michigan comes to an end), traveling to Israel, and then moving in to a new place. So, I won't be blogging again until sometime in June.

More on FRE 702:

Blog 702, generally an excellent resource for Rule 702-related matters, rather harshly condemns my theory that Rule 702 is stricter than the the Daubert trilogy. Here's what Joiner says about methodologies and conclusions:

But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

Note the permissive language, backed up by an abuse of discretion standard.

Now, compare Rule 702, as amended, stating "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise... if ... "the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case." Note the lack of permissive language; courts must exclude evidence if an expert has not applied the principles and methods reliably to the facts of the case.

Similarly, Kumho Tire seems to give district courts almost infinitely wide discretion in how to determine the admissibility of experience-based testimony, including giving an example of a perfume-sniffer who is to be qualified based solely on experience and "whether his preparation is of a kind that others in the field would recognize as acceptable." Contrast this, again, with Rule 702's absolute requirement that all expert testimony be "the product of reliable principles and methods," that courts must ensure that "the witness has applied the principles and methods reliably to the facts of the case." Arguably, merely asking a perfume sniffer if "his preparation is of a kind that others in the field would recognize as acceptable" doesn't meet this standard.

Finally, Daubert itself was very ambiguous, and there was a great debate over whether it was a "loose scrutiny" or "strict scrutiny" opinion. Joiner and made it clear that Daubert was to be interpreted rather strictly with regard to scientific evidence, Kumho Tire made it clear that a reliability test applies to all expert evidence, and Rule 702 made things even stricter. For courts to go back and assume that any stray dicta is Daubert is sound simply ignores what has happened since then. Unfortunately, what many courts have been doing, in my view, is deciding based on their own predilections whether they want to admit challenged evidence, and then they go back and find precedents that support their perspective, instead of starting with an analysis of Rule 702's requirements, and then deciding whether the evidence meets that standard.

UPDATE: FWIW, there was a lengthy discussion of this issue a few months ago on the law professors' Evidence list, and while no consensus was reached, I think those professors (including me) who made the case that Rule 702 goes beyond the requirements of the Daubert trilogy were far more persuasive, and it's certainly true that I was hardly alone in my view on this.

More on Kerry on Jefferson on Dissent.--

Like the fake story about the plastic Thanksgiving turkey supposedly served by George Bush to Iraqi troops, the phony Thomas Jefferson quote on dissent just won't die (tip to Tim Blair).

Here is John Kerry, speaking yesterday at Grinnell College in Iowa:

Dismissing dissent is not only wrong, but dangerous when America's leadership is unwilling to admit mistakes, unwilling to engage in honest discussion, and unwilling to hold itself accountable for the consequences of decisions made without genuine disclosure, or genuine debate. As Thomas Jefferson said, "dissent is the highest form of patriotism."

This suggests one of two things; either

It must be the former, though someone in the Kerry campaign should monitor the blogs more to prevent his recycling already debunked urban myths, such as the plastic turkey story and the Jefferson quote.

For more: Ann Althouse questions Kerry's argument in the speech, and Tim Blair points out Kerry's recycling of the mythical Jefferson quote. On the origins of the quote, which may have originated with Dorothy Hewitt Hutchinson in the 1960s, see this earlier post.


Here is Dorothy Hewitt Hutchinson in 1955:

Hutchinson, 1965: "Dissent from public policy can be the highest form of patriotism."

Hutchinson was the National President of the Women's International League for Peace and Freedom in 1961-1965. Here is a picture of a 1960s demonstration in Germantown, PA, but since two of the women are wearing gas masks, I can't tell whether Hutchinson is one of them:

(Click to enlarge)

2D UPDATE: After discussing Marcos's criticisms of Hillary Clinton, Instapundit opines: "And, as John Kerry's continued fake-Jefferson-quoting demonstrates, we could do worse!"

Related Posts (on one page):

  1. More on Kerry on Jefferson on Dissent.--
  2. Thomas Jefferson's Love of Dissent.--