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Saturday, July 06, 2002


ROOTS: Was in California briefly, where I found parsley root! I've finally been able to find celery root in Boston regularly -- they actually even sell it at regular supermarkets, but parsley root had been elusive ever since I once tracked some down in a Bread and Circus (whole foods) supermarket in Brighton three years ago. I bought as much as I could carry (well, three bunches, which is quite a bit) and took it on the plane with me back to Boston. It would have been fun to see their faces if they had searched my bag at the airport.

Both celery root and parsley root are good for boiling in soups for flavor -- many of the soups in my mother's cookbook, The Art of Russian Cuisine, call for both celery and parsley roots, though you can make up for a lack of a root by putting more of the other, or even the lack of either root by putting in huge amounts of celery (which you could then throw out).

Note that you should freeze celery root if you're planning on keeping it around for months, since it goes soft and mushy (i.e., rots) in the fridge after a while; I cut it up into cubes before doing this, so I don't have to cut a frozen lump when I make soup. (I was shocked when I discovered that fresh dill rots quite dramatically in the fridge after a week.) I figure I'll have to do the same with my parsley roots.


RECYCLING (see Eugene's post below): I recall, from my days as a solid-waste and recycling analyst, that the need to have two fleets of trucks is a significant capital expense which actually often makes recycling not worthwhile. But I was under the impression this didn't happen much anymore, since lots of municipalities have combined collection in a single truck. (This is a cautionary tale, by the way, for those who use current technology to evaluate regulatory proposals -- recycling mandates, in many ways, are technology-forcing (like many environmental regulations), so a comparison of recycling vs. non-recycling using pre-forced technology can be misleading.)

I was surprised to hear L.A. still does it the old way. I myself never studied this particular question head-on; my former boss Lynn Scarlett would know where to go for this result, but she's now at the Department of the Interior and no longer does garbage. Possibly it's discussed in our study Packaging, Recycling, and Solid Waste (June 1997), but that doesn't seem to be on the web. But for a discussion of recycling generally, by Lynn and me, see our article in Consumers' Research, "Is Recycling Good or Bad -- Or Both?" (September 1997), loosely based on the study above.

Also see my own web site for different recycling-related articles, including some on how government regulations discourage the use of recycled materials.

UPDATE: Reader Duncan Frissell points out that I don't mention, in my Consumers' Research article, the labor cost of forced consumer recycling or the psychic cost of being coerced. Quite true. It was also a conscious choice on our part -- the cost-benefit analysis we did applies to achieving a given level of recycling and recycled-materials usage, regardless of how that level was achieved. So even if we had 100% voluntary recycling and everyone wanted to buy recycled materials, we could still ask whether the effort spent recycling was worthwhile.

Of course, if you want to force a particular level of recycling, then yes, you should take into account the cost of people's time and the psychic cost of being coerced. (One can see those as really the same thing -- if people have a high psychic cost of being coerced, that's another way of saying the time they spend recycling is very expensive -- but I can see why you might want to separate them analytically.) Of course, the cost of people's time depends on how much they want to recycle. If they're truly indifferent as to whether or not they spend time separating recyclables, then the value of their time may be even negative, meaning, in a sense, that they'd pay you for the privilege of separating recyclables. Others go further and positively prefer to spend time separating recyclables; others would hate supporting an environmental cause even if it saved time.

This points, by the way, to one way governments can make recycling "make sense" economically -- cultivate a pro-recycling ethic. Even if the ethic is "false," in the sense of being based on a false environmental cost-benefit analysis, the ethic can give people enough happiness that it compensates for the lost material costs. And it needn't even be false, since environmentalism needn't be based on a cost-benefit analysis at all, even implicitly.

(I don't mean that as a criticism of environmentalism, which can be based on perfectly valid romantic notions of anti-consumerism, anti-industrialism, humility before Nature, or what have you; see my review of Peter Marshall's Nature's Web. Libertarianism needn't be based on a cost-benefit analysis either -- and a good thing too! Some people think a libertarian world is an economically efficient world and that "good economics is libertarian economics" -- I'm not one of them.)

Also, the assumption above that recycling takes time isn't true in communities where the recyclers actually pick up mixed garbage and separate it themselves -- this actually happens in many communities, and while the quality of the recyclables tends to be lower that way, you do get 100% participation.

Friday, July 05, 2002


WHETHER A STATE MAKES GOOD RELIGION: In a transcript of a Wednesday interview on All Things Considered (or at least the LEXIS version of the transcript), I'm quoted as saying: "I think in the next several years the Supreme Court will have to confront this question and decide whether a state even makes good religion or whether that is unconstitutionally discriminatory." Whether a state makes good religion? Huh?

     It took me a few seconds to realize what must have happened: I said whether a state even may exclude religion, and I hope that listeners heard that (even despite my sseeck Rushen excent). (It makes sense in context; Nina Totenberg had just said "Volokh acknowledges that some state constitutions will likely forbid the use of vouchers anyway, but, he adds, that will set up a conflict with the federal Constitution that the Supreme Court will likely have to resolve eventually.") But the transcript rendered "may exclude" as "makes good."

     Moral of the story: When you see a transcript in which someone says something really stupid, keep in mind that it might be the transcriber's error. (Or it might not be, but please believe me on this one!)


RECYCLING: In L.A., you're supposed to put your recyclables in special blue trash cans, other trash in black trash cans, and yard trimmings in green trash cans. It turns out, though, that the blue cans are picked up by special trucks that just pick up the recyclables. (I don't know whether the green and black cans are both picked up by one kind of truck, or whether there end up being three kinds of trucks total -- one for the blue, one or for the green, and one for the black.)

     This makes me wonder: Has anyone tried to figure out whether the recycling program requires more trucks and more truck trips? It's possible that it doesn't, but it seems possible that it might -- I just don't know. And if it does require extra trucks and extra trips, then I wonder how one would balance the supposed environmental benefits of the recycling program stack up against the costs -- the financial costs, the environmental costs of the extra fuel consumed, the environmental costs of the extra exhaust produced, and the traffic burdens caused by the extra trucks.

     I've always been instinctively skeptical of many recycling programs; I suspect that like many politically driven proposals, they are often driven by fads and good intentions, rather than by serious cost-benefit analysis. I certainly recall many stories where various recycling/reusing plans ended up seeming to be on balance environmentally unsound. For instance, as I understand it, using cloth diapers instead of disposables (a big fad a while back, as I recall) may save some landfill space, but uses more hot water and soap for washing, which means more pollution caused by detergent runoff and by the production of the energy to heat the water and run the washing machines. The same, I'm told, was true as to proposals that fast-food restaurants use glasses rather than paper cups.

     Likewise, as I understand it, using supposedly "biodegradable" paper bags instead of plastic bags may end up using more landfill space rather than less; though in theory paper bags are biodegradable, in practice they don't biodegrade much in landfills, and they use more volume than plastic bags. (I should mention that I'm not an expert on the subject, so it's just a layman's skepticism; I'd love to hear what Sasha and Juan think, since they've thought much more about environmental issues than I have.)

     In any event, I'm not certain that these particular recycling programs are unsound -- perhaps they are, and the environmental and other benefits do exceed the environmental and other costs. (As I understand it, that's true of some recycling programs and not of others; again, I'd love to hear the details from the experts.) But I have noticed that these issues aren't even discussed, and we're asked to recycle just because well, of course recycling is necessarily a good thing. And I suppose that's what annoys me most (rationally or not) about recycling advocacy.


ANOTHER GREAT JULY 4 COLUMN, from Richard Cohen at the Washington Post.


MORE DREAMS: I've forgotten most of this dream I had last night; all I remember is that I was trying to make things better.

But here's something more interesting -- a dream I had a few months ago, inspired by Peggy Noonan. How often does that happen? Last December 14, she wrote, in an exceptionally good column of hers:

And, most delightfully to me of all, yesterday in Rome, at the end of a general audience, Pope John Paul II for the first time ever activated a Web page. They brought him a laptop and he hit a key with his Parkinson-pained finger and suddenly was born.

So I had this dream that I was the technical guy in charge of setting up that web site. I was in the Pope's office getting the Pope's laptop ready for the activation of the web site, and the Pope comes in! But he's actually this big, broad-shouldered, energetic guy in his 60s. So I shake his hand and start talking to him in Italian -- God only knows why, since he's Polish and speaks English, but maybe I thought this is a new Pope who is, like almost every other Pope for the last several hundred years, Italian. But I get the feeling that he didn't really like talking to me, and when he sat down at the laptop to log in, he looked back and scowled at me because he thought I was trying to see his password over his shoulder.

Then there was this other dream I had in 1989, where I was copying down my scribbled economics notes into my notebook (this was in high school), and these Mongol warriors keep running into my house, flying off their horse, and crashing through my window, right after I'd removed the body of the previous Mongol warrior and replaced the glass. Then I called up Winston Churchill, who, at the age of 114, had been assigned to an insignificant position at the British consulate in Los Angeles. He answered the phone directly when I called, and we started talking about World War II and British politics, but like the Pope in that future dream, he didn't really want to talk to me and was speaking slowly and sighing heavily. This call came in on the other line, so I put him on hold and talked to my friend Laurent for half an hour before I realized that this first line was still flashing. So I got back onto the line and said, "Mr. Churchill, I'm sorry I kept you on hold for half an hour, but could I call you back later?" So he hung up, but not before telling me: "In the Middle Ages, the force behind the unity of Europe was the Catholic Church, but by the Renaissance, this power had begun to be eroded by the growing influence of the national monarchies on the Atlantic seaboard."

And finally -- a dream I had just a day or two ago. Arnold Schwarzenegger, as the Terminator (don't remember whether this was the old or new Terminator), was on a rampage through this library I was working in, overturning bookshelves, not even paying any special care to the Ayn Rand shelves, and I was wondering whether the Incredible Hulk could beat him. There were ladders instead of stairs between the floors, and the ladders also served as crossword puzzles (i.e., try to fit a ten-letter word into an eleven-rung ladder).

UPDATE: Dan Hartung corrected the spelling of "Guadalupe" above. But as that was a cut-and-paste from OpinionJournal, this puts me in mind of a long-time puzzle: Why are there so many spelling mistakes on OpinionJournal? Is it actually sloppy newspapering? Or are they Web version mistakes that don't appear in the print version (perhaps only in made-for-Web-only articles)? Or is this no sloppier than newspapers generally (perhaps I just notice this because I actually read OpinionJournal)? OpinionJournal's a great source, just spelling mistakes generally jump out at, and annoy, me.

Reader Paul Donnelly remarked that "i.e." in the last paragraph above should have been "e.g."; I disagree (the ten-letter word wasn't an example; it was the whole entire phenomenon), but he still suggests that "viz." would have been better. I like "viz." myself, but "i.e." above is staying.


HEBERT SHOULD READ SHAFER: Conducting a minimal amount of research beyond activist group press releases would help Bob Hebert's columns immensely. The lastest example was this column on the Bush Administration's environmental record. Hebert opens with the "Bush cuts Superfund cleanup funds" canard exposed by Jack Shafer in Slate. The Superfund budget isn't shrinking, it's growing -- and more than Shafer suggests because brownfield redevelopment money is now a separate $100 million line-item of its own. Of course, it is worth asking whether a cut in Superfund money would be so bad. The program is a complete waste of money and environmental disaster.


THE BEST BUG SPRAY: Worried about mosquitos? Afraid flies will ruin your summer days in the sun? Buy bug spray containing DEET. According to the New England Journal of Medicine, insect repellents containing DEET are far more effective than the alternatives. Organic and non-chemical repellents did not even come close.

Thursday, July 04, 2002


HAVE A HAPPY AND MEANINGFUL INDEPENDENCE DAY. And drink a toast to our Republic, and those who are -- and have been and will be -- in peril protecting it.


VOLOKH LINKING TO KAUS ON ANDREWSULLIVAN VS. TAPPED: OK, this might seem way too inside baseball, but I actually think it's an important point --
When Andrew Sullivan questioned the American Prospect's preposterous traffic claims, the magazine's blog reacted viciously . . . . Now the long-awaited results of TAP's Walsh-like internal investigation are in, and it turns out Sullivan was right. Instead of the 450,000 unique visitors a month that it had claimed, TAP now says, it got only 161,025 unique visitors in June. TAP's editors graciously blame their stats program.
See Kausfiles (July 3, 12:15 pm) for more details and the damning links. What Mickey is too gracious to rub in, though, is that TAPped doesn't apologize to Andrew Sullivan for their earlier attacks on his expressed doubts, or even acknowledge that he was right and they were wrong.

     I generally much like TAPped, which most of the time does much better; and I've taken them up before on their challenges to speak up against errors by prominent conservatives. I think they should speak up a bit about their own error (especially since apologies are generally both cheap and pretty effective at reassuring readers).

     By the way, Mickey, why no direct links to your blog posts? [Maybe the conglomerate he works for isn't computer-savvy enough?--ed.]

Wednesday, July 03, 2002


POEM: My friend Phil Proctor just sent along a poem that I much enjoyed, "Forgetfulness," by Billy Collins -- and I rarely enjoy unrhymed poems:

The name of the author is the first to go
followed obediently by the title, the plot,
the heartbreaking conclusion, the entire novel
which suddenly becomes one you have never read,
never even heard of,

as if, one by one, the memories you used to harbor
decided to retire to the southern hemisphere of the brain,
to a little fishing village where there are no phones.

Long ago you kissed the nine Muses goodbye
and watched the quadratic equation pack its bag,
and even now as you memorize the order of the planets,
something else is slipping away, a state flower perhaps,
the address of an uncle, the capital of Paraguay.

Whatever it is you are struggling to remember
it is not poised on the tip of your tongue,
not even lurking in some obscure corner of your spleen.

It has floated away down a dark mythological river
whose name begins with an L as far as you can recall,
well on your own way to oblivion where you will join those
who have even forgotten how to swim and how to ride a bicycle.

No wonder you rise in the middle of the night
to look up the date of a famous battle in a book on war.
No wonder the moon in the window seems to have drifted
out of a love poem that you used to know by heart.


N.Y. TIMES REPORTING OF THE BUSH ADMINISTRATION AND SUPERFUND: I'm not an expert on the subject, but Jack Shafer's "Toxic Smear Job: The Times 'Slashes' Bush with its bogus Superfund budget-cuts story" (in Slate) seems like a pretty powerful criticism of the Times' coverage.


HOW THE JUSTICES VOTED IN FREE SPEECH CASES, 1994-2002: Which Justice has the broadest view of free speech, and which has the narrowest? The answer, it turns out, is Reagan appointee Justice Kennedy (broadest) and Clinton appointee Justice Breyer (narrowest). The Justices who are tied for having the next broadest view after Justice Kennedy are liberal Bush, Sr. appointee Justice Souter and conservative Bush, Sr. appointee Justice Thomas. Not quite in keeping with the "liberals support free speech claims, conservatives support the government" stereotype that still persists among many people.

     These are the findings of my study of how the Justices voted in free speech cases, which I've just updated to include the just completed Supreme Court Term. (The 1994-2000 version of the study was published in the UCLA Law Review, and an op-ed based on it was published in the New York Times.) Here's how the study was conducted (click here to read the HTML version of the study, including the raw data; click here for the PDF version):

     1. For each of the 47 cases from 1994-95, when the Court's personnel last changed, until 2001-02, I counted 1 point each time a Justice voted for the free speech claimant, and 0 points each time the Justice voted against.

     2. I then adjusted up by 1/3 whenever the Justice wrote or joined an opinion that was more speech-protective than the majority (or plurality) or than the lead dissent, and down by 1/3 whenever the Justice wrote or joined a similarly more speech-restrictive opinion.

     3. For the cases that involved two or three separate issues, I split the points accordingly.

     4. I then divided the result by the number of cases, and multiplied by 100 to produce a percentage. Recognizing that the 1/3 adjustments are somewhat arbitrary, I also repeated the entire process with adjustments of 40 percent and of 1/6 in place of the 1/3 figure, and got virtually identical outcomes.

     I deliberately looked only at the bottom line. I refrained from injecting my views about whether the Justices were right or wrong, and from subdividing the cases along categories (for example, government-as-sovereign vs. government-as-funder, sexually themed speech vs. political speech) that would ultimately just reflect my own biases.

     Here are my results:

2 (tie)Thomas61.1%
4 Stevens55.7%

     Not surprising to some Court-watchers, I think -- but probably not widely known among most of the public, and even most lawyers and journalists.

     The original version of the study, by the way, was roundly condemned both by Cass Sunstein and Alan Dershowitz -- check the footnotes for my responses to their comments.


BEATING THE DEAD HORSE: I was critical of Garrett Moritz earlier for his posts on the inconsistency of conservatives when it comes to the marriage penalty. But I think he has it right on the vouchers and pledge issue. Garrett says, "I don't think you'll find many proponents of vouchers seeking to apply the same principle of neutrality they applaud in the context of vouchers to the pledge case." Probably true (though hey Garrett, here's one of them!) -- I'm sure lots of people who like the vouchers decision but hate the pledge decision haven't thought through what they really mean by "neutrality."


FASCINATING PROCEDURAL TIDBITS ABOUT THE PLEDGE OF ALLEGIANCE CASE: Howard Bashman does some original investigation into the procedural history of the Pledge of Allegiance case, and comes up with some interesting details. Nothing scandalous, but much worth keeping in mind -- and it seems to be a blogosphere scoop.


ME, ANTI-UNION? Reader Mitchell Freedman says, in response to my post about the projectionists, "You do hate unions, Sasha!" and adds, "When you gleefully cross a picket line and then tell people to challenge the union without even knowing about the economic issues, you're anti-union. And the bit about 'government benefits' to unions, well, that's just a big giveaway."

I disagree, and suggest that maybe we're dealing with two different concepts of "anti-union." If being in favor of a free-market approach to unions is "anti-union," let me be guilty. But even within those who are anti-union, some approach a dispute assuming that the union is wrong (now that's what I call "anti-union"), while others (that's me) approach it not knowing or caring whether the union is right or wrong, on the theory that this is just a dispute between two parties whom I know nothing about. In my previous post, I called such a position "principled apathy," and I generally apply it when observing disputes between private parties. (My friend Jack Schaedel, a labor attorney who assists employers "in staying union-free," plans to talk me out of this view tonight over dinner.)

(How did I tell people to challenge the union? Merely by informing people that, contrary to the union's claims, there was no bad projection quality at the theater. That's something I'd recommend people do even with no union and no labor dispute -- as long as someone else were spreading this false and harmful claim.)

But enough about me and the projectionists -- I'm posting because I have an independent chance to show my bona fides on this subject. The Los Angeles Times (link requires free registration) reports that Walmart has tightened its policy on gun sales beyond what's required by federal law. (Brief synopsis: Under law, if a background check returns a "not clearly O.K." (instead of a "good" or "bad," for instance because of errors in some records somewhere), you're allowed to sell the guy a gun. Walmart says no -- you need a definitely "good" to sell the gun, no matter how long that clearance takes.) Here's the NRA's view:

But gun industry officials said they have already started hearing grumblings from gun owners.

"Certainly this is cause for concern for us," said Andrew Arulanandam, a spokesman for the NRA. "The NRA's position has always been that law-abiding gun owners ought not to have their rights infringed by any bureaucratic snafu" because the "flawed" background check system is too slow to process requests.

Arulanandam predicted that many gun owners would be incensed about the policy change.

When some Kmart stores briefly removed guns and ammunition from their shelves immediately after Sept. 11, the NRA issued an alert condemning the move and urging members to contact the company. But Arulanandam said "it's too soon to tell" whether the group will seek a boycott or similar action against Wal-Mart over its shift in policy. "We'll monitor it," he said.

Now, no one can accuse me of being anti-gun. But I'm with the NRA on the political question of whether there's a right to own a gun. Wal-Mart is infringing on no one's rights, because neither the Second Amendment nor the Moral Law gives you a right to have Wal-Mart sell you a gun. And while I wish that everyone were willing to sell everything that I like, I like it better when people do what they're comfortable doing, and if they're uncomfortable selling people guns when the background check isn't reassuring enough for them, then they should stop doing it. Now, it's true that if Wal-Mart does this, other stores may follow suit, and that may pave the way for more restrictive legislation, which I will oppose. But Wal-Mart's peace of mind is more important. (See my previous post on suing for Israel.)

Now the NRA is free to boycott Wal-Mart, but if it does, I will not participate in that boycott. (I'm not against boycotts -- I do boycott Revolution Books across the street, and I would consider boycotting (but wouldn't necessary boycott) Wal-Mart if it started engaging in reprehensible political action. But none of that has even been alleged in the case of Wal-Mart.) Well, full disclosure -- I'm a Kmart lover myself; I'm sure I'd love Wal-Mart too, but the nearest Wal-Mart is 12.3 miles away, in Lynn, while the nearest Kmart is 1.8 miles away, in Brighton. But if I ever find myself near a Wal-Mart and want to buy something, I will not feel compelled to avoid the store. If the NRA starts saying that Wal-Mart offers lousy service and I experience good service, I will let you all know (and say kind words to the management).

This is even worse than what I'm doing with the projectionists' union: I know the issues involved and my sympathies normally lie with the gun people, and yet here I am declaring my willingness to cross a picket line and say kind words to management. Does this make me anti-gun?


AMERICA, OUR PARENTS, AND COURAGE: I have a somewhat unusual (for me) piece up on National Review Online, on all these topics.


PLUPERFECT SUBJUNCTIVE: Peter Berkowitz, in The New Republic, skewers Stanley Fish and postmodernism. I still don't see what all the fuss is about or what's wrong with postmodernism.


PHILOSOPHERS ON STRIKE: So French philosophy teachers are on strike these days, and had threatened to not grade the philosophy baccalaureate papers. The horror! (The baccalaureate is the French high-school exit exam -- a difficult series of exams in all subjects, including philosophy; I suffered through that myself 13 years ago.) Fortunately, they later backed down from that threat.

As near as I can tell, the conflict is between the "Renaut" school, which wants a more targeted philosophy curriculum to better prepare students for the baccalaureate, and the "Fichant" school, which wants a more free-form high-school philosophy education. Luc Ferry, the new minister of education, proposed a compromise -- both free and targeted! -- but the philosophy teachers didn't believe that. The philosophy teachers also believe they should be consulted in the curriculum design process.

UPDATE: On the Luc Ferry "compromise," reader Steven Jens says, "I think we've reached bottom when politicians are emitting bullshit so transparent that French philosophers are calling them on it."


A GOOD TAKE ON EUROPEAN POLITICS: Pierre Bedier, French secretary of state for the real estate programs of justice (there's got to be a better translation for that), talks, in an interview in Le Monde, about the government's program to build more prisons, and accuses his critics of angelism, which, as near as I can tell, means the belief that people (for instance, criminals) are angels, or the belief in the perfectibility of man and institutions, or the unwillingness to face the ugly facts of existence. Bedier says:

Q. What do you answer to those who accuse the government, by building prisons and detention centers, of throwing itself into excessive penalization, American-style?

A. First I'd like to tell them to change their record, because I find it a bit scratched. Then, I invite them to listen to the voters: if we don't succeed in restoring public authority, I'm not sure that the popular electorate will want to trust us with responsibility in the future. And that goes for us as much as for the opposition. Angelism makes the bed of extremism. . . .



THE PRESS AND JUDICIAL NOMINATIONS: Interesting and detailed discussion about how the press skews reports of judicial nomination battles, from John Rosenberg Here's the intro:
One of the sad realities of our current situation is the increasingly vitriolic partisanship of judicial nominations. Nothing really new here. But what may be new, or at least something that everyone else knew but that I've only newly noticed, is how much the press exacerbates this problem, even (or perhaps especially) in what purport to be straight news stories.


A NICE WAY OF THINKING ABOUT IT: S.R. Epstein, in Regional Fairs, Institutional Innovation, and Economic Growth in Late Medieval Europe, 47 Econ. Hist. Rev. (n.s.) 459, 469 (1994), writes (my emphasis):

A less naive version of the supply side argument [about the origin of medieval fairs, which holds that medieval rulers chartered fairs for their own economic reasons] is that fair charters simply provided the legal frame to what were already long-standing commercial events. Official fairs were to trade what marriage is to sex, an ex post legitimation of a phenomenon that had arisen under very different economic circumstances.


ALIENATED AND INCOHERENT: Great post in the new personal blog by Geitner Simmons, an editorial writer with the Omaha World-Herald on the Academic Left culture. My favorite detail, which quotes Paul Hollander and Russell Jacoby: "Postcoherent thinkers."


SELECTIVE SANCTIMONY AT THE UNIVERSITY OF CALIFORNIA: About 175 UC faculty members have apparently signed a Faculty Petition for Divestment from Israel.

     The entirety of the petition's reference to the provocation under which Israel is laboring is: "We find the recent attacks on Israeli civilians unacceptable and abhorrent." Very well, colleagues -- but don't you have anything else to say about that? Might Israel be understandably reluctant to deal with a Palestinian Authority that seems to be in league with the "abhorrent" attackers, or at the very least seems completely incapable of stopping them and providing Israel the security that it deserves? Might there be a much stronger case for a cessation of all Western aid to the Authority, because of its complicity with the attacks both on Israelis and on supposed "collaborators" among Palestinians?

     The petition is quite silent on that.


HOW SLATE'S "BUSHISM OF THE DAY" IS LIKE THE INDEPENDENT COUNSEL: I don't get last week's "Bushism of the Day":
"Whether you're here by birth, or whether you're in America by choice, you contribute to the vitality of our life. And for that, we are grateful." -- Washington, D.C., May 17, 2002
What's the supposed problem? The one possible objection that I can think of is that Americans by birth are also in America by choice, since they could have moved elsewhere. But the "immigrants are Americans by choice" line is a stock phrase used by immigration enthusiasts, and I'd never heard anyone complain about it before.

     See, for instance, from a quickie google query, "Americans by Choice / Photographs of Arab-Americans in New York by Mel Rosenthal / Celebrating the United States as a nation of immigrants, for four years Mel Rosenthal has been photographing the Arab-American community in New York as part of a project commissioned by the Museum of the City of New York. . . ."); or, on, the book American by Choice: The Remarkable Fulfillment of an Immigrant's Dreams". A quickie LEXIS search for "immigrant w/10 'american by choice'" in news;curnws,arcnws likewise comes up with a bunch of stories that use the phrase as a general means of praising immigration.

     Now maybe the phrase is literally or symbolically somewhat inapt -- much as, for instance, both "American Indian" and "Native American" may be faulted for being literally or symbolically inapt -- but it's pretty standard. Nor is it even that illogical: Immigrants (specifically ones who immigrated to the country as adults) have probably made, on balance, a somewhat more deliberate choice to be in America than the native-born have. Is it quite fair to knock Bush for using this?

     I generally quite like Jacob Weisberg's stuff, and Slate, which he edits, is one of my favorite magazines. But the "Bushism of the Day" has run into the problem that some people have identified in the Independent Counsel law. As Justice Scalia (quoting Justice Jackson) pointed out, when a special-purpose independent prosecutor is chosen, there's a special risk
that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
     Now naturally the harms caused by excessive prosecutorial zeal are greater than the harms caused by excessive journalistic zeal, especially in the light-hearted field of poking fun at politicians' foibles. Still, it seems to me that journalists, like prosecutors, can lose a necessary sense of perspective if they set their agenda to be "Let's find something that X did wrong," rather than "Let's find something that someone did wrong, whoever that someone might be."

     As I've argued before (see here, here, and here), the "Bushism of the Day" feature pretty often suffers from this lack of perspective; and I think this has happened again in this column. Gadflies -- humorous or serious -- bite more helpfully, and more amusingly, when they are equal-opportunity gadflies, rather than when they dedicate themselves to harassing one particular horse.

Tuesday, July 02, 2002


HEALTH FACTS AND FEARS: Check out Health Facts and Fears from the American Council on Science and Health, edited by my friend Todd Seavey -- it's a good (and apparently sensible) source for debunking environmental and health scares. I've just read articles on whether microwaving plastic is bad for you, what's the problem with DDT (click here and here), and concrete examples of death by (FDA) regulation.

The moral of the last couple of linked articles: Technology has its risks, but nature also has its risks, which means that the risks of not having technology can be substantial. The precautionary principle is all well and good, but which way does it cut?


ALL WE NEED IS BLOOD: Check out the future of artificial blood. This is good news, given how hard it is to get blood donors and how cumbersome it can be to screen the stuff. See a previous article of mine, from Reason, on FDA control over software, which also says some words about blood screening (though it's mostly about eye laser surgery).


CHURCHES HAVE A RIGHT TO EXPEL TRESPASSERS. Sounds obvious, yes? But the trial court in this case disagreed, and it took the California Court of Appeal to set him straight:
In the trial court, a church sought a restraining order to prevent an expelled member from engaging in disruptive conduct on church property. The trial court denied relief, finding that the right of free speech permitted the former member to enter the premises and express her contrary religious views. The trial court also found that the parties’ dispute involved religious doctrine, precluding the intervention of civil courts.

We conclude that the church, like any nonsectarian property owner, may decide whom to allow on its premises. . . .


TREAD SOFTLY, FOR YOU TREAD ON MY DREAMS: This morning I had a dream that I had temporarily joined a rock band, which played music I didn't like, and I didn't know my lines, and I didn't have a very good voice for singing my solos, and we were also doing a performance of Shakespeare with a lot of Renaissance-language sexual innuendo. But we had to explain the jokes for the audience.

Similarly, I had a dream some weeks back, while I was in Prague -- I was at a convention with Ronald Reagan. That's the current Reagan, with Alzheimer's, but in the dream he was actually lucid and discussing how he had Alzheimer's. Also, there was the 1980 Ronald Reagan and 1980 Nancy (with the red dress). Current Reagan was telling jokes, some of which were pretty funny -- he was talking about the 1980 election, which was really close (it wasn't clear until the weekend before that he was going to win), and about how if it had been any closer he could have gone to court and asked for a recount. That was pretty funny and everyone laughed. (Current Reagan and I had a really good relationship around that table, so people were saying it was like we were father and son.) But then he told some joke that everyone laughed at just to be polite, but I said, "I don't get it," and Reagan whacked me upside the head!

Speaking of making up jokes in one's sleep, I made up this one joke in a dream I had in summer 1986, while I was in Dublin. There's this guy, see, who goes into a travel agency and asks to see a vacation, but the vacation wasn't in because it had gone on people. This seemed riotously amusing to the characters in my dream but apparently people generally don't think it's quite so funny in real life.


RESTRAINING ORDERS AGAINST BIG HAIRY SPIDERS, PART 2: My mother, who is growing tomatoes in her garden, reports that there are some insects or animals or something that's gnawing at her tomatoes even when they're still green, which is why she's had to pick tomatoes when they become barely red, just as damage control.

I pointed out to her that this mirrors the Tragedy of the Commons -- if everyone has access to an apple tree in the park, they should pick the apples when they become barely tolerable to eat, or else the next guy will get them, while if one person owned the tree, he would wait until the apples became nice and red. The problem is that there are no property rights between my mother and the critters. I suggest that she open up (Coasean) negotiations with them.


WAITER, THERE'S A BUG IN MY SOFTWARE: A good article on MSNBC about why software is so bad; why programmers are so sloppy; how the problem is getting worse, not better; and how software bugs can cause huge property damage (the $500 million satellite payload of the French Ariane rocket lost in 1996 due to "systematic software design error"; an estimated $8.76 million lost to the "I Love You" virus) or can even be fatal (bugs in a radiation therapy machine in the mid-1980s killed at least three people through radiation overdoses, and a similar case in 2000-01 killed eight people).

Toward the end, the article asks: "Is litigation the answer?"

Software firms have been able to avoid product liability litigation partly because software licenses force customers into arbitration, often on unfavorable terms, and partly because such lawsuits would be highly technical, which means that plaintiffs would need to hire costly experts to build their cases. Nonetheless, critics predict, the lawsuits will eventually come. And when the costs of litigation go up enough, companies will be motivated to bulletproof their code. The downside of quality enforcement through class action lawsuits, of course, is that groundless litigation can extort undeserved settlements. But as Wallach says, “it just might be a bad idea whose time has come.”

In fact, a growing number of software engineers believe that computers have become so essential to daily life that society will eventually be unwilling to keep giving software firms a free legal pass. “It’s either going to be a big product liability suit, or the government will come in and regulate the industry,” says Jeffrey Voas, chief scientist of Cigital Labs, a software-testing firm in Dulles, VA. “Something’s going to give. It won’t be pretty, but once companies have a gun to their head, they’ll figure out a way to improve their code.”

And, yes, if software is going to become like the rest of the world (i.e., like the rest of products liability), that means we need more litigation. But should software become like the rest of the world? Or should the rest of the world become like software? The current tort regime is fine for accidents between strangers. But products are mainly a matter of contract. You can pay more for the privilege to sue, or save money by not being able to sue. By revealed preference, we see that people prefer the vibrant, innovative, somewhat sloppy world where new software comes out quickly to allow firms to respond to changing market conditions; sure, you lose a lot of money with some probability, but with a larger probability you get a neat product that's useful to you. (See Paul Rubin's Tort Reform by Contract.)

Maybe this should teach us something about the rest of the world? In other words, maybe what we need is a few more bugs?


THE JOE KLEIN TOUR: Joe Klein has a European travel diary on Slate that's just wonderful. Would that my updates from the European road had been as insightful! It's long, but here are some highlights:

  • Why France today is like America in the 1970s.

  • "[C]ontrary to the popular British analogy, America is Greece, not Rome. (Britain, which styles itself Greece, used to be Rome and is now Gaul, though divided into four parts."

  • "[S]omeone has finally managed to beat Berlusconi at his own game: [Italian union leader] Cofferati had the simpler slogan. 'I will defend your job,' he said. Berlusconi was left with the complicated, abstract notion that a less restrictive labor market would lead to a stronger economy. (Salesmen detest having to tout a complicated, abstract product.) Berlusconi -- whose campaign slogans tended to be of the 'lower taxes, higher pensions' variety -- had been caught on the wrong side of grammar, trapped in a compound sentence."

  • "Poland is merely Polish, an experiment in ethnic deprivation; the unbearable whiteness of being."

  • A nice discussion of how the Germans go overboard with their anti-anti-Semitism. "Paul Spiegel, the chairman of the Central Council of Jews in Germany, called the Möllemann affair [where a German politician had criticized Israel and Jews, mildly by European standards] 'the biggest insult uttered by a party in the federal republic since the Holocaust.' Yet no one was able to say, 'Paul, put a lid on it,' for fear of being accused of anti-Jewish sentiments themselves. I suspect the role of national conscience is not a long-term winner for Germany's Jews, any more than the role of national scourge was."

  • "There is much talk of silly regulations. Roland Berger had told me a regulatory joke: 'Do you know why so few German companies start in garages like Hewlett-Packard did? Because it's illegal. There's a law that says every office must have a window -- and another law that says garages are not allowed to have windows.' I've also heard businessmen say that if Bill Gates had been born German, he'd be middle-management at Siemens. 'That's not true! That's not true!' said Frank, a self-employed management consultant. 'You have to have a university degree to be middle-management at Siemens. Gates is a college dropout. They wouldn't allow him to be middle-management at Siemens.'"

  • "To complicate matters, both men [the outgoing and incoming presidents of the European Council, the Spanish Jose Maria Aznar and the Danish Anders Fogh Rasmussen] have very dark hair and very deep tans, more teeth than regulation, and an aversion to immigrants; Aznar does have a moustache, thankfully."

  • "Did Klein just call the EU remarkable? Yes. Here you have 15 tiny, inbred societies, suffering all the genetic calamities -- xenophobia, lassitude, rampant accordion-playing -- that inbreeding creates . . . ."

I know you won't read the whole thing, but try a bit.


JUDGE GOODWIN REACTS BLUNTLY TO CRITICISM OF PLEDGE DECISION: Reader David Lonborg passes along a link to an interview with Judge Goodwin -- the author of the pledge decision -- that includes some unusually blunt responses by the judge. Some samples:
"I never had much confidence in the attention span of elected officials for any kind of deep thinking about important issues," Goodwin said. "When they pop off after what I call a bumper strip headline, they almost always give a superficial response."

Goodwin, who turned 79 Saturday, was pilloried in the Senate last week as a "stupid judge" whose ruling was "just nuts."

He said he was disappointed in President Bush, who called the decision "ridiculous." "I'm a little disappointed in our chief executive -- who nobody ever accused of being a deep thinker -- for popping off." . . .

"That was just damage control," Goodwin said about his Thursday order staying the decision in Newdow v. U.S. Congress, 02 C.D.O.S. 5700, even though the case is automatically stayed anyway.

He said that was done for the benefit of the media, who don't understand the intricacies of court rules -- especially TV reporters.

"Their attention span can't handle anything more than a haiku of about four lines," he said. "The worse thing about it was that some people said we were caving under pressure."

He said he also issued the order so that other judges could get back to work. Judges that weren't on the panel were getting lots of calls, he added. . . .

He added that he wasn't impressed with the media's interpretations of the ruling. "I wasn't too surprised," Goodwin said. "I did work for newspapers . . . so I know how they work." . . .

He said he has received much reaction -- from strangers, lawyers and old Army buddies -- which has been running hot and cold. All the e-mails go into a folder marked "Newdow."

"Someday when I haven't got anything else to do, I'll read them," he said.
     Judge Goodwin also suggests that the case will likely be reheard en banc by the Ninth Circuit. I guessed last week that it wouldn't be reheard (based largely on the Circuit's 17-7 split in Democratic appointees vs. Republican appointees), but now I officially take it back. I'll take Judge Goodwin's prediction over mine any day. (By the way, Ernie the Attorney disagreed with my "no en banc" prediction when I first made it -- it looks like he was right and I was wrong.)

     Incidentally, someone asked me whether Judge Goodwin's reactions were unjudicial or showed undue contempt for coordinate branches of government. I think they just show a guy who was provoked, and who responds in kind. Not a perfect situation, but it happens to people, in government or out, and isn't really that significant.

UPDATE: Reader Steve Schroer points out that haikus generally have three lines, rather than four.


ECONOMISTS AND BANANAS: Steven Landsburg explains, in connection with the important question of whether you should peel bananas from the top down or the bottom up (and what do "top" and "bottom" mean anyway?), why you should never ignore general equilibrium issues and concludes that:

So far, there are only two findings I can report with any real degree of confidence. First, economists have a predictable and weak sense of humor. (No fewer than three of my colleagues independently "observed" that if you open from the bottom, the banana will fall out.) Second, if you take an economist -- any economist -- and give him a banana to hold by the stem and eat from the other end, he really will bear a remarkable resemblance to a chimpanzee.

On Steven Landsburg, see my critique of his column on takings and land use.


EERIE: What's up with those Saturn ads on Slate? I hear the drumbeat even when I'm on an entirely different web page! Is God sending me a message on


     Supporters of a four-year petition drive to ban guns from schools and places of worship have conceded defeat. . . .

     Supporters of the so-called "Safe to Learn, Safe to Worship" initiative need 76,180 signatures of registered voters by Monday to qualify for the November general election ballot. They have fallen far short -- certifying just 39,597 with a few thousand more still being processed by county clerks. . . .

     Originally pushed by the Utah PTA, the initiative proposed to outlaw licensed concealed weapons from public schools, college campuses and religious edifices. Nearly 45,000 Utahns have concealed-carry permits that allow them to legally pack heat anywhere except in a handful of "secure areas," such as airports, prisons, mental institutions and courts.

     Sixteen organizations, from the Episcopal Diocese to the Utah Education Association, joined the gun-control coalition scouring the state for signatures. . . .
     The proposed ban would affect only gun owners who had gone through the criminal-background checks and other requirements to obtain a state-issued concealed-carry permit. Concealed firearms carried by minors or unlicensed adults already are illegal in schools and other places. . . .


HOMOPHONES: Belatedly, here are some results from The Homophone Search:
  • Six words that are spelled differently but sound alike -- sees, seas, seize, cees (plural of the letter), seise (to put in possession of land, related to the legal term "seisin"), sis (plural of the note "si", which is another spelling for "ti"). Yup, the last two are weird, but that's fine. Thanks to Kent Jeffreys for completing the sextuplet; Mitch Gunzler, A.J. Thomas, and Brian Phillips (passed along by Mark Nau) had the quintuplet, without the "sis." Possible septuplet: Add c's, another way of referring to several instances of the letter "c"; but my New Shorter Oxford lists it as capital only, and in any event the apostrophe makes it less elegant.

  • Quintuplet, sextuplet, or septuplet, depending on what you include -- air, ere, err, heir, are (unit of measure = 1/100 of a hectare), eyre (a circuit ridden by a judge, listed as "now Historical" but not actually obsolete in my New Shorter Oxford), e'er (poetic for "ever", perfectly fine if you allow apostrophes). Via Brian Phillips (passed along by Mark Nau) and Arlet (passed along by Larry Van Sickle), though Ward Farnsworth, Jack Schaedel, Brian Erst, Robert Patterson, and I had all but the "eyre." Steven Gallaher had a close variant of the six that we had.

  • Probable septuplet -- lays, laze, leis (Hawaiian garlands), lase (to operate as the working substance of a laser; back formation from the word "laser"), lais (plural of "lai", a short narrative poem), leys (plural of "ley," a hypothetical straight line connecting prehistoric sites), leas (synonym of "leys," though I'm not completely confident in the pronunciation). Arlet (passed along by Larry Van Sickle) had all seven. Brian Phillips (passed along by Mark Nau), Mitch Gunzler, A.J. Thomas, and I had all but "lais".
     Because we got all the likely sextuplets and possible septuplets above, I'm skipping the quints.


THE FRAMERS AND THE REVOLUTIONARIES, LIBERTY AND COMMUNITY: Thinking about Jonathan Rauch's column reminded me of a great point that Glenn Reynolds made in a law review article that we (and three others) coauthored:
To see that the Framers very arguably rejected as basic a Weberian notion as the state's monopoly on legitimate violence encourages students to recognize what I regard as an important point in teaching constitutional law: that the Framers weren't late-twentieth-century Americans (much less late-twentieth-century Europeans) and that their political philosophy and worldview were in many ways very different. . . .

     [T]he Framers were neither liberal nor conservative in modern terms, but rather a peculiar sort of traditionalist quasi-libertarian that has no real modern analog.
     This notion that neither liberalism nor conservatism nor libertarianism nor communitarianism properly captures the Framers' worldview -- or, in my view, the right worldview, which I think is in some but not all ways similar to the Framers' -- is an important insight that is often forgotten, because each side in the debate so wants to appropriate the Framers for themselves.

     Jonathan Rauch's piece captures, I think, an important part of the Framers' spirit -- this odd mix of dedication both to individualism and to community that is necessary for a nation to become and remain free in the face of dire threats, foreign and domestic. I sometimes feel the same when reading some of Kipling's poetry, which I think in considerable measure comes from the same libertarian-communitarian ideology (though its somewhat different 1700s/1800s British strand).

     I am mostly a libertarian, and it's tempting for me to pooh-pooh statist proposals, which are often both illiberal and ineffective. But July 4 celebrates an event that was not made through pure individual liberty, that could not have been made through pure individual liberty, and that could not have been sustained through pure individual liberty. It was a revolution against government power, made possible and successful by the power of other governments; and those governments have remained relatively free and relatively peaceful only because they created a stronger government, which has often had to use its power to defend liberty (though unfortunately has also often used it to suppress liberty).

     None of this is news to thoughtful libertarians. There is a difference, after all, between libertarianism and anarchism. But it's worth reminding ourselves on occasion about the odd, almost but not quite contradictory, mix of philosophies that is needed to make liberty flourish in a dangerous world.


AN ABSOLUTELY FIRST-RATE ARTICLE about this Fourth of July, from the consistenly excellent Jonathan Rauch. Thoughtful patriotism at its best.


GOOD, THOUGHTFUL COLUMN ON THE PLEDGE CASE, by E.J. Dionne, in the Washington Post.

Monday, July 01, 2002


THE MAGIC OF NEWS CUSTOMIZING: I've been using lately to customize my news. The Washington Post itself provides several news categories -- Top News, OnPolitics Top News, Nation Top News, World Top News, and other categories like Science, Health, whatever state you're in, whatever country or region you're interested in (Russia, Western Europe, Andorra), your choice of columnists, your choice of comics, weather for your zip code, and so on.

Unfortunately, this isn't nearly as tailored to myself as I'd like. Fortunately, though, they provide a window where you can link to your favorite other sources (The Economist, The New Republic, Reason, Arts & Letters Daily, some foreign language sources, and so on). So I have a ton of those, and every once in a while I go through the Washington Post categories I've chosen and the news sources I link to and I print out a huge sheaf of papers, representing all the articles I think are interesting . . . . I staple them all together and there's my homemade newspaper. (This can be 100-200 pages, so it becomes several stapled sheaves of paper.)

I go around reading my homemade newspaper at my leisure, tearing off pages as I go and saving the most interesting articles to remind myself to blog them. This could take, say, a week or two, at which point, whenever it's convenient, I repeat the whole process.

Why am I telling you all this?

First, to share this useful method with you. Maybe there are others out there who never get around to reading all their favorite news sources.

Second, maybe you guys know of a better way? Do you have a favorite news customizer? Something that would let you choose articles more precisely (The Washington Post doesn't have a category about privatization, administrative law, the environment, prisons . . . and frankly, I prefer longer analysis articles than short news stories)? (Of course, I could do Eclipse searches on Lexis/Nexis, but that's more cumbersome.) Do you have any favorite news sources you could tell me about for environmental news, or admin law? For European news? Central/Eastern European news? What's your favorite Internet source for interesting articles about current affairs, culture, etc., in Spanish (the Spanish-language version of Time or Newsweek, say)? French? German? Russian?


SPEAKING OF SOUTHEASTERN EUROPE AND FORMER KINGS: The Bulgarians are figuring it out . . . .

Failure to establish adequate control mechanisms also plays a role in facilitating malpractice [i.e., government corruption]. In a recent article, Georgi Ganev of the Sofia-based Center for Liberal Strategies writes that corruption flourishes because there is far too much money to be administered by the state without effective public control. As Ganev puts it, "We entrusted basic and vital responsibilities to the state, but we do not move a finger to control [the state]. The natural and inescapable consequence is corruption."

By the way, former king Simeon II is now Prime Minister of Bulgaria. He seems like a more reputable character than would-be King Leka.


SCHOOL CHOICE OP-ED: It's slightly belated, but here's a link to a really good op-ed on the implications of the school choice decision, by my friend and fellow lawprof Rick Garnett. Two particularly interesting points:
[T]he constitutions of more than 20 states contain provisions that are widely regarded as even more restrictive than the First Amendment. Indeed, many of these provisions were enacted in a context of nativist anti-Catholicism and were intended specifically to prevent public funds from ever finding their way to religious schools. Although these state-law provisions may themselves be vulnerable to First Amendment challenges, it is clear that choice-based reform is not yet out of the litigation woods.

Another crucial legal and policy question that remains unresolved is the extent to which the public will demand, and the Constitution will permit, legislatures to attach "regulatory strings" to school vouchers. . . .


TERRORISTS, ROOT CAUSES, AND TIME-SERIES ANALYSIS: Princeton economist Alan Krueger and Czech Middle Easternist Jitka Maleckova have a fine article on whether poverty causes terrorism. Their answer: No. Alleviating poverty isn't the answer, and neither is better education; terrorism has more to do with "political conditions and long-standing feelings of indignity and frustration (perceived or real) that have little to do with economics."

There seems to be little correlation between income/education level and terrorist activity (or the individual probability of being a terrorist), and in fact wealth and education helps you concentrate on things like nationalism and political philosophy, as well as making you more effective (more able to blend in in the West, fly airplanes, carry out complicated plans). (See my post on minority problems in Hungary and Gypsy education -- and that possibility that problems would increase, not decrease, as Gypsies become more educated in their own culture and become more ethnic-conscious.)

Krueger and Maleckova discuss a study of lynchings and poverty in the early 1930s which had claimed to find a correlation between the price of cotton (a proxy for wealth) and lynchings -- but a 1998 study showed that (1) replacing cotton prices with GNP removed the correlation, and (2) "the correlation between lynchings and economic conditions vanished once secular trends in both variables were taken into account. That is, apart from the long-term tendency for the number of lynchings to decline and the economy to grow, lynchings were unrelated to year-to-year economic fluctuations."

It is almost certainly the case that the inverse correlation reported between economic conditions and anti-black lynchings that launched the "aggression frustration hypothesis" was spurious, a coincidence of two unrelated trends that happened to move in opposite directions at the turn of the twentieth century.

Take heed, folks -- this is what happens when you ignore the teachings of econometrics. Recall the old correlation between babies and storks. When two time series both have a time trend, they automatically look rather correlated.


ON REREADING YOUR OWN STUFF: The New Republic has reprinted their 1922 review of James Joyce's Ulysses (to celebrate Bloom's Day, June 16). The reviewer, Edmund Wilson, Jr., has various quibbles with the book (like, it's incredibly dull!), but otherwise thinks it's a work of genius, and has this priceless line:

Since I have read it, the texture of other novelists seems intolerably loose and careless; when I come suddenly unawares upon a page that I have written myself I quake like a guilty thing surprised.



     Well, there's not a lot of sensible legal argument in this opinion, though there is plenty of expression of the judge's opinion. The judge's basic argument is simply that
the best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions.
Naturally, imposing penalties on innocent people is very bad, but there's nothing new about that risk. The Framers must have recognized that courts may sometimes err, but they nonetheless created a system which contemplates "capital . . . crime[s]" (Grand Jury Clause of the Fifth Amendment) and deprivation of life with due process (Due Process Clause of the Fifth Amendment, repeated after the Civil War in the Fourteenth Amendment). Not so, argues the judge:
[I]n guaranteeing due process of law to all deprivations of life, liberty and property, the drafters of the Constitution were simply applying due process to the full panoply of anticipated actions, rather than
endorsing or even commenting on any particular kind of deprivation.
Really? Seems to me that these constitutional provisions, enacted against a legal backdrop in which the death penalty was clearly seen as constitutionally permissible, are most certainly an "endors[ement]" of the penalty's constitutionality.

     The court then proceeds to talk about the need to focus on "evolving standards of fairness and ordered liberty." Seems to me that, given that 38 states and the federal government have the death penalty, and the death penalty continues to be quite popular, the American people's standards of fairness and ordered liberty support the death penalty. Now maybe this particular judge thinks the penalty is unfair -- but how does his view end up being the standard. (The Court's recent decision holding that the mentally retarded may not be executed, for all its flaws, at least tries to defend its position with reference to the public's views, not to the Justices' own.)

     The opinion goes on from there, unpersuasively trying to obscure the fact that its reasoning is very simple: The judge who wrote it thinks the death penalty is wrong -- and not the text of the Constitution, nor the standards of the American people, nor the Court's precedents (which the judge dismisses in a way that strikes me as wholly inadequate) will stand in the way.

     The opinion's only redeeming characteristic is that it cites, for some historical background, a very good book by my brilliant UCLA Law School colleague Stuart Banner, "The Death Penalty: An American History" (2002).


SCHOOL CHOICE AND BALKANIZATION: A Friday New York Times editorial condemns the school choice ruling on various grounds, all in my view mistaken. Here's the one that's most plausible as a theoretical matter, though I think it ultimately fails on empirical grounds:
Yesterday's decision also undermines one of the public school system's most important functions: teaching democracy and pluralism. In public schools, Americans of many backgrounds learn together. In the religious schools that Cleveland taxpayers are being forced to sponsor, Catholics are free to teach that their way is best, and Jews, Muslims and those of other faiths can teach their co-religionists that they have truth on their side.
     In theory, religious education -- or for that matter private education generally -- might end up balkanizing, and education at government-run schools might be unifying. But in practice, the most serious threats of balkanization today in America are not along religious lines; they're along race and class lines.

     The failures of the existing public school system exacerbate these race and class divisions, because -- as Justice Thomas's concurrence in the school choice case pointed out -- the failed schools disproportionately serve blacks, Hispanics, and the poor. School choice, by giving parents more choice and by putting more competitive pressure on public schools, has a good shot at substantially improving the options available to poor, black, and Hispanic students, and thus ameliorating the lines of balkanization that really matter in America today.

FORCE: Finally, I'm interested in how the Times and other liberal groups use the language of "force" here -- "the religious schools that Cleveland taxpayers are being forced to sponsor." I wonder: Does the Times ever talk about "the government-run schools that taxpayers are being forced to sponsor"? All taxes involve "coercion." All government-funded education involves taxpayers being forced to sponsor the teaching of views that they disagree with -- and often the teaching of views that offend the taxpayers' religious precepts.

     Now maybe the Times could come up with some argument as to why (1) forcing taxpayers to pay money that goes to teach one ideological view of environmentalism, or evolution, or race relations -- in a situation whether the favored ideological view is chosen by the government -- is better than (2) forcing taxpayers to pay money that goes to teach many different ideological views of religion, the contents of which are selected through the private choices of parents.

     But I'd like to at least see the Times acknowledge that both cases involve "forcing taxpayers." Do they ever do that?


POLITICS AFTER THE COURT'S SCHOOL CHOICE DECISION: Mickey Kaus has a great item about this on Slate's Kausfiles ("Why the Voucher Issue Really Could Hurt the Dems" / "A dissent from last week's instant contrarianism").


SUSTAINABILITY AND GLOBAL WARMING: Ron Bailey has, as always, an excellent Reason article about whether we've really overshot the earth's carrying capacity this time. Also, Andrew Kenny in The Spectator has an article about global cooling which may or may not be true but is interesting anyway.


LAISSEZ FAIRE, LAISSEZ PASSER: A sensible article by Columbia economist Jagdish Bhagwati on trade policy. Bhagwati takes on the following misconceptions about global trade:

  • the world trading system is “unfair”: the poor countries face protectionism that is more acute than their own;

  • the rich countries have wickedly held on to their trade barriers against poor countries, while using the Bretton Woods institutions to force down the poor countries' own trade barriers; and

  • it is hypocritical to ask poor countries to reduce their trade barriers when the rich countries have their own.

In fact, poor countries are the bigger offenders when it comes to tariffs, and Bretton Woods institutions and strings attached to IMF loans have been ineffective at keeping poor countries' tariffs low. Bhagwati also devotes some space to how to fight particular tariffs politically, separating tariffs that protect the rich in a country from tariffs that protect the poor:

Beyond this, an effective tariff-reduction strategy requires that we handle labour-intensive goods such as textiles separately from agriculture. The differences between them dwarf the commonalities. Labour-intensive manufactures in the rich countries typically employ their own poor, the unskilled. To argue that we should eliminate protection, harming them simply because it helps yet poorer folk abroad, runs into evident ethical (and hence political) difficulties. The answer must be a gradual, but certain, phase-out of protection coupled with a simultaneous and substantial adjustment and retraining programme. That way, we address the problems of the poor both at home and abroad.

Once this is done, church groups and charities can be asked to endorse a programme that is balanced and just. Such a strategy is morally more compelling than either marching against free trade to protect workers in the labour-intensive industries of the rich nations—while forgetting the needs of poor workers in poor countries—or asking for trade restrictions to be abolished without providing for workers in such industries in the rich countries.

The removal of agricultural protection does not raise the same ethical problems; production and export subsidies in the United States and the European Union go mainly to large farmers. That should make it easier to dismantle farm protection on the grounds of helping the poor. At the same time, however, agricultural protectionism is energetically defended as necessary for preserving greenery and the environment. With the greens in play, protectionism becomes more difficult to remove. But, just as income support can be de-linked from increasing production and exports, so measures to support greenery can be de-linked too. Such new measures, and other environmental protections added as sweeteners, must be part of the strategic assault on agricultural protection.

Is that really the best way to fight tariffs? Do we have to endorse redistribution or environmental regulation to get rid of tariffs? Is the cure clearly better than the disease? Well, at least he's intelligently thinking about the political problem.


BACKSTAGE WITH THE TATARS: Central Europe Review has an interesting article by Marius Dragomir about Cairi Riza, a Romanian Tatar who started up his own private Tatar folklore ensemble. The English isn't entirely correct, but what it lacks in polish it makes up for in enthusiasm, and the article is a good illustration of how government aid corrupts art. Riza's group has consistently refused government aid, though it's been eligible. Tatar groups in Romania got 5 billion of some currency or other in 2001 . . .

Riza was ready to accept public money several times, but realised in due time that this would mean low-down compromises and a debt that he would never be able to pay without tarnishing his image. For example, Riza says, if you accept money to organize a tour abroad, "sponsors" are subtly telling you that you bring officials' relatives who are eager to travel. That has become a common habit in the country's cultural affairs, Riza says. Last year he had planned a tour in some Central European countries with the financial support of "a so-called impresario." Riza says: "He just wanted to take all his relatives plus chiefs and "people in charge with spare time" to Europe, meaning that beyond the 15 artists I was to take other 30 people who were just to gad about."

Refusing such deals, Riza arouse many people's hatred. "Not only that they didn't help me, but put a spoke in my wheel," Riza says. "I'm talking here about the leaders of the Tatar Union who couldn't see their children or nephews in the ensemble or couldn't take their families on my ensemble's tours. But their biggest envy is that the numerous commissions and committees in charge with culture couldn't manage at least ten percent of the success of a private ensemble which didn't get a single penny from the state budget or other state structures."

Riza says, "In the Ministry of Culture, Tatars are represented by a dubious guy, a former Communist activist who's drastically censoring my work, forbidding my appearance on minority broadcasts on the national TV channels 1 and 2" (my emphasis).

It's a heart-warming story about how Riza manages to put on high-quality shows and get (voluntary!) money out of regular people and regular businesses -- most of which aren't Tatar -- and it has some priceless jabs at his less artistically serious competition:

"With these wonderful children, I managed more than others did who are organizing tens of symposiums and round-tables where a clique of quill-drivers talk frivolities and play ducks and drakes with billions from the state budget in sprees with fiddlers and belly bottom dances."



IT'S GOOD TO BE THE KING: Radio Free Europe/Radio Liberty reports:

Leka Zogu plans to return permanently to Albania on 28 June, AP reported from Tirana. Leka left Albania as a baby in 1939 and spent most of his life abroad, primarily in South Africa, where he was an arms dealer. He returned to Albania briefly in 1993 and then again for a longer stay in 1997. After losing a referendum on the restoration of the monarchy, Leka was involved in violent protests in which one man was killed. The pretender to the throne left the country before the police could question him about the incident. They issued a warrant for his arrest, but he was pardoned by President Rexhep Meidani earlier in 2002. In June, he was asked to return by a vote of the parliament.

Yes, the glorious arms-dealing, coup-attempting, riot-causing, town-skipping man who would be king.

Short background: Leka Zogu is the son of Ahmet Zogu (1895-1961), who became prime minister of Albania in 1925 and three years later declared himself King Zogu I (sometimes called King Zog I, which sounds more sinister). King Zog fled the country when the Italians invaded in World War II, and formally abdicated in 1946 after the Communists took power and abolished the monarchy. For a somewhat fanciful vision of King Zog, see the movie Aria, where Zog is played by, yes, Theresa Russell.


SEPARATION OF CHURCH AND STATE: Many people are saying that last week's Supreme Court school choice decision undermines the "separation of church and state." (See, e.g., the Slate column on the case by the usually quite insightful Dahlia Lithwick.) But I think that the decision fits perfectly with this separation, properly understood.

     "The wall of separation between church and state" sounds like a good metaphor, but what exactly does it mean? If we really take the "wall" seriously, the results would be quite odd. If the police or fire department come to a church building, are they barred from stepping inside, on the theory that there's a "wall of separation" they cannot cross? Conversely, if a clergyman wants to leave the church to participate in the state -- say, by voting, or by serving in elective office -- does a "wall" stand in his way to the polling place or the legislature?

     Of course not -- such exclusions aren't constitutionally mandated, and they aren't even constitutionally permissible: They are improper discrimination against religion. (The Supreme Court actually confronted an exclusion of the clergy from public office in 1978, and struck it down unanimously, with a forceful concurrence by Justices Brennan and Marshall.)

     Well, but maybe the separation is really separation of the state fisc from the church's coffers -- maybe there's a wall that bars any taxpayer money from flowing to religious institutions. But can this be right? Does this mean that I, a government employee, can't pay part of my taxpayer-derived salary to a religious school? That a welfare or social security recipient can't do the same? That I can't take advantage of the charitable tax exemption (which is economically and legally tantamount to a government matching-funds subsidy) when donating money to a religious school? That GIs couldn't use GI Bill funds to get educations at religious universities?

     Again, I think that such exclusions would be neither constitutionally mandated nor constitutionally permitted: If a social security or welfare check came with a condition "You may donate any part of this to a secular charity, but not a religious one," that would be unconstitutional discrimination against religion.

     So what then is the proper definition of separation of church and state? I think that the state separates itself properly from religion when it treats everyone equally without regard to religion. By not caring whether a person or an institution is religious, the state stays out of people's religious lives, and separates itself from theological debates. Such equal treatment is not establishment. To "establish" a church is to give it some special privileges, to place it above other churches or other institutions (and recall that the Constitution prohibits "establishment" -- "separation" is just some people's interpretation of the constitutional term), and if church schools are treated just like other private schools, there's no establishment there.

     So I support the separation of church state and school choice. Once one rejects the unsound definitions of separation (no government contact with churches and no clergy contact with government, or no taxpayer money flowing to religious institutions even under evenhanded programs), this approach -- separation through the government treating everyone without regard to their religion or religiosity -- makes good sense.



Sunday, June 30, 2002


MASCULINE NAMES: A short note about the movie The Emperor's New Clothes, with Ian Holm, about Napoleon (not a spoiler): The movie opens with Napoleon's friends plotting the Emperor's escape from his exile at St. Helena. The plan is to substitute a look-alike -- a sailor named Eugene Lenormand. Napoleon hears about this and says (since he'll have to play the part of Eugene Lenormand until the plot is unveiled) something like (this is my memory), "Couldn't we have gotten someone else? Eugene is such a feminine name. What about someone named Alexander? That's a masculine name!"

(Note: "Sasha" is short for "Alexander" in Russian.)

UPDATE: Matt Bower suggests that it's hard to imagine a "Eugene the Great." On the other hand, there is Eugene the Jeep.

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