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Saturday, February 15, 2003


ALERT! This article (thanks, Drudge) reports a Rand Corporation suggestion that if a giant asteroid is found to be hurtling toward Earth and about to cause extinction, it might be best not to bother issuing warnings about it; nothing much could be done by way of precautions, so the only effect of a warning would be to cause fruitless anxiety and panic. Might as well let everyone be happy for a little longer. I'm not sure I agree, but similar thoughts were natural and perhaps more apt last week during the national semi-panic over the "code orange" terrorism alert. How many people did anything to make themselves any safer? Was it even possible to make oneself much safer? My guess is that the costs created by the warnings -- in anxiety, distraction, and wasted time -- greatly exceeded any expected benefits from them, and in this way amounted to an inexpensive little victory for the terrorists (whose goal, after all, is to create anxiety, distraction, and wasted time). Maybe useful steps were taken by airport employees and the like, but for most ordinary people I imagine the main consequence was the loss of some amount of otherwise useful time for no particular reason.

     The problem, of course, is that the economics of the situation are arranged to guarantee too many warnings. If something bad does happen, ambitious politicians opposed to whoever is in power will screech that not enough warnings were given in advance; so the ambitious politicians currently in power try to preempt those screechings by giving warnings now, however unhelpful they may be. The media likewise are destined to be useless, as they are rewarded for helping to goad the public into hysteria. More people feel that they have to watch CNN, listen to news/talk radio, etc., to see whether there is a new warning or a follow-through on the old one. A nervous viewer is an attentive viewer.

     Since the politicians and media evidently are going to be no help, it falls to us individually to learn to live with a little (indeed, very little) extra risk without distraction and anxiety. Unless a warning is specific enough to call for clear precautions, the sensible and patriotic thing is to ignore it.

Friday, February 14, 2003


SOMEONE OUT THERE thinks the Harvard Law Review is publishing interesting stuff ("wonderful prose style," "deep thinking," "meticulous research," and by the way, a shorter version available here) -- or find the Feb. 14, 11:23 AM post if you run into the blogger archive bug. (Also check out here for more of similar.)


HOW MANY C (AND C-DIALECT) PROGRAMS HAVE CRASHED because "=" is an assignment, "==" is a comparison, and using "=" instead of "==" is quite syntactically valid, and thus doesn't even yield an error message (largely because many dialects of C don't much care about data types, so the fact that the condition in "if (a=b)" isn't of type boolean doesn't faze them)? I ran into it many times when I was a programmer -- granted, C wasn't one of my main languages, but I used it often enough to know it quite well once upon a time -- and now it almost happened again with the JavaScript for my page. What a !$*%#= design decision; but I guess we're all stuck with it now.


SHARES in President Saddam Hussein’s future performed well on the spread-betting markets yesterday as traders concluded that Hans Blix had given the Iraqi leader some breathing space.

The handful of internet betting websites offering odds about when Saddam will meet his doom saw frenzied trading from the moment Dr Blix began speaking.

Saddam’s chances of removal fell from a high of 45 per cent to 39 per cent. Even after Jack Straw made his hawkish comments, followed by Colin Powell’s unyielding tour de force, the market bounced back only to 42. of Dublin saw 2,000 contracts made in a few hours about Saddam’s chances of surviving to the end of next month as President of Iraq.

The market frenzy is driven by traders from both sides of the Atlantic and Australia. A “Mexican stand-off” has emerged, with European traders gambling on Saddam’s survival while Americans patriotically put money on his demise. . . .

“Saddam shares” are so popular that “Osama futures” have just been launched. Traders are pessimistic that the al-Qaeda chief will be “captured/neutralised” (as tactfully puts it) by June 30, with only 10 per cent support for this prediction. . . .
(Thanks to Mark Brady for the pointer.)


DON'T TELL THE CENSUS: From the St. Cloud Times:
Technical High School students involved with the play "Ten Little Indians" will make some changes to tonight's opening after people complained to the school's administration about the title. . . .

The program will be printed with "And Then There Were None," the name of the Agatha Christie book on which the play is based, in large print and the title in small print. . . .

Principal Roger Ziemann said he asked for the changes after some people involved with American Indian outreach at St. Cloud State University complained. They complained because the title is based on a children's counting rhyme from the early 1900s that is derogatory toward American Indians, he said. Nationwide, other schools have changed the name, he said.

"We count objects, not people," Ziemann said. "The times have changed since then and we need to be more sensitive. We don't want to give the impression that we're objectifying people." . . .
"We count objects, not people"? Huh? Either Ziemann or the reporter misquoting Ziemann or quoting him out of context -- impossible to tell which -- isn't making much sense. (Thanks to TongueTied for the pointer.)


"POLITICS (LEFT)": That's the category under which Memeufacture links to one of our posts and one of InstaPundit's. Yes, I know that the Memeufacture category headings don't stand for the same thing that they would if you'd seen a list headed "Politics (Left)" in a normal blog; and, yes, InstaPundit sometimes does say things that seem "left," as do we. Still, as InstaPundit would say, "Heh."


For three months, President Bush has supported U.N. weapons inspections in Iraq on the understanding that if they didn't get results fast, military action would follow. If, in Friday's Security Council debate, opponents of immediate war had offered a later deadline or a higher threshold for resorting to force, Bush might have gone along. They didn't. Instead, most members of the council converged on three assumptions that make military action impossible. In so doing, they stripped U.S. Secretary of State Colin Powell of any reason to ask Bush to wait. The U.S.-U.N. courtship is over.

1) Progress is enough. In his briefing to the council, chief inspector Hans Blix listed what Iraq had and hadn't done to cooperate. Most members focused on the bright side of Blix's report. Fourteen acknowledged the "progress" made so far. . . . The trouble with progress is that it can go on forever without reaching an absolute standard. . . . In Friday's debate, Russian Foreign Minister Igor Ivanov noted that Iraq had shown "movement in the right direction" on several matters that had been "pending" at the council's Feb. 5 meeting. By this logic, other Iraqi obstructions would become the new pending business, and Iraq could satisfy the council at its next meeting by showing movement on those obstructions.

2) Inspections can fix themselves. On Feb. 5, Powell presented evidence to the council that Iraq was moving things around to hide them from inspectors. In their briefings Friday, Blix and chief nuclear inspector Mohammed ElBaradei suggested that additional inspectors and surveillance equipment could help them catch the Iraqis in such evasions. On this view, if inspections are being foiled, the solution is more or better-equipped inspectors. Therefore, inspections never end. . . .

3) War is failure. Early in the debate, French Foreign Minister Dominique de Villepin declared, "War is always the sanction of failure." . . . But if you equate war with failure or forbid it as long as alternatives are conceivable, you'll never turn to it. Iraq can foster just enough promise in some compliance "process" to keep you from picking up your gun.

Years from now, I'll remember two moments from Friday's debate. One was when de Villepin raised the question of "how much time [should be] allowed Iraq" before giving up on inspections -- and proceeded not to answer it. The other was the concluding plea from German Foreign Minister Joschka Fischer: "There should be no automatism leading us to the use of military force." Not to worry. The United Nations' automatism leads away from force. That's why the choice in Iraq is boiling down to war now or war never.


"SHOULD NOT BE TAKEN SERIOUSLY BY ANYONE": Fred Kaplan in today's Slate:
Today's session at the U.N. Security Council proves, once and for all, what has been increasingly clear for the past couple of months -- that the United Nations will not be an instrument for war against Iraq. The session might also lead one to conclude, though more tentatively, that any future U.N. resolution that threatens the use of force should not be taken seriously by anyone, least of all the country being threatened. The situation has come down to this: Some members of the council are in favor of going to war, some members are not, and this score card is now fixed; no amount of debate, no further mountain of intelligence data, no further discoveries in Iraq itself are likely to alter the alignment. . . .

[The French and Russian pro-inspection] line of reasoning is not only an argument for permanent inspections (and a permanently deferred enforcement of U.N. resolutions), but also a thorough misinterpretation of Resolution 1441. Nowhere does that resolution say war is an option only after inspections have been utterly exhausted. Rather, it states a) that Iraq is already in "material breach" of several U.N. resolutions going back to the 1991 cease-fire; b) that the Security Council is giving Iraq one more chance to comply with its obligations; and c) that if it commits another breach -- by failing to disarm completely, by making false statements or omissions in its stockpile declarations, or by failing to provide inspectors with "immediate, unimpeded, unconditional, and unrestricted" access to everything and everybody they want to see -- then there will be "serious consequences."

Nobody today, except the Iraqi ambassador, tried to claim that Iraq has fulfilled its obligations. Nobody tried to argue that "serious consequences" means something other than military action. Nobody disputed that, just three months ago, the council's 15 members passed Resolution 1441 unanimously -- not casually or unwittingly so, but after seven weeks of negotiations, in which Secretary of State Colin Powell altered the language to meet French reservations. . . .

Finally, the French and Russian arguments constitute, in effect, a notice to Saddam Hussein that, as long as he keeps making trivial gestures and meaningless decrees (preferably on the eve of Security Council sessions), he can -- at least as far as the United Nations is concerned -- sleep soundly at night and get away with whatever he can manage. Jack Straw, the British foreign minister, made the point: If the council backs away from the resolution, the disarmament of Iraq "will get very much harder," not easier. Certainly, to the extent Saddam has made serious steps in the past, they have come when he feared his foes were getting serious. . . .


AND SPEAKING OF CLONING AND ALL THAT: This month marks the 50th anniversary of the Watson-Crick paper in Nature hypothesizing that the DNA molecule is a double helix with those 4 bases you remember from high school biology -- adenine, cytosine, guanine, and thymine -- linked together in the middle. There's a wonderful collection of material commemorating this anniversary on Nature's website, including the original paper (with its famous opening paragraph: "This structure has novel features which may be of considerable biological interest") and a host of really interesting after-the-fact commentaries (including one by Martin Kemp, The Mona Lisa of Modern Science on the iconic status of the double helix that was quite illuminating). 1953, as the editors put it, was an annus mirabilis for science. Highly recommended.


DOLLY IS DEAD That's Dolly as in Dolly, the first mammal ever cloned. Dead at age 6. A small milestone.


JONATHAN RAUCH ON FRANCE AND IRAQ: Another first-rate piece by Jonathan Rauch -- definitely very much worth reading. A key excerpt:
France has always treated weapons inspections as an end rather than a means. Inspectors, the French argue, would prevent Saddam Hussein from obtaining weapons of mass destruction, or at least nuclear weapons, and thus would suffice to contain him. Their argument was reasonable in 1999, and it still has force today; but its force is weakened by the recent example of North Korea, which successfully carried on a full-scale uranium-enrichment program under the noses of nonproliferation monitors. And, of course, Iraq can always admit inspectors today and obstruct or evict them tomorrow, after the United States has stood down militarily and the Security Council has moved on. It worked nicely in 1998.


GREEN CAR - OXYMORON? The development of fuel-cell powered automobiles would be an environmental triumph, right? Not necessarily according to Robert Bernstein, Transportation chair of the Sierra Club-Santa Barbara Group. He writes the following to Scientific American:
The biggest impact of private motor vehicles is the creation of sprawling land use, which in turn causes forced dependency on cars. Fuel-cell cars would also still injure millions of Americans in collisions, another problem with personal transportation, and would still leave stranded the one third of the U.S. population that doesn't drive. Cars would still sit in traffic jams and average a lower effective speed than bicycles.
I guess there's no satisfying some folks.


PLEASE DEFINE "SERIOUS CONSEQUENCES": UN Security Council Resolution 1441 "recall[ed] . . . that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." What exactly, according to the Council's sentiment this morning, are those "serious consequences"? And what happens to international bodies that keep resolving things, warn of serious consequences, and then don't deliver?


French Foreign Minister Dominique de Villepin used his response to this morning's Security Council briefing by chief inspectors Hans Blix and Mohamed ElBaradei partly to answer Donald Rumsfeld's recent barbs about French and German intransigence: "I am from an old country, France ... that does not forget all it owes to freedom fighters from the United States and elsewhere ... [France has] always stood upright in the face of history." Then, musing about the chaos of war, de Villepin reiterated his nation's commitment to building "a better world," and the applause erupted in Turtle Bay. . . .

[Hans] Blix reported this morning that, "At the meeting in Baghdad on the 8th and the 9th of February, the Iraqi side addressed some of the important outstanding disarmament issues and gave us a number of papers.... Although no new evidence was provided in the papers and no open issues were closed through them or the expert discussions, the presentation of the papers could be indicative of a more active attitude focusing on the important open issues." Could be indicative of a more active attitude? Was Blix listening to his own report?

The obvious point here is that if the Security Council wants to believe that Iraq's reluctant presentation of meaningless documents is a sign of future cooperation, we can all forget about that "better world" France is so committed to. . . .
Thanks to InstaPundit for the pointer.


HART CONTINUED: I've read TalkLeft's account of his interview with Hart. I've read the whole speech (indeed I had done so before posting the first time). And I just don't find the claim that Hart "had no specific group in mind" remotely plausible.
He was referring to any group with special interests, including any group that might put its concerns and feelings for the country of its heritage over the best interests of America.
But there are lots of special interests. From the perspective of Hart's civic republicanism, our foreign policy also shouldn't be dictated by partial economic interests (labor, agriculture, textile, steel, whoever); by pacifists who nurse the grudges of Vietnam too long; by utopian internationalists willing to sacrifice national security for global dreams; by politicians seeking electoral advantage; by university professors with their abstractions and ideological axes to grind; by the tobacco lobby or the anti-tobacco lobby; by the ACLU or the NRA insofar as their agendas conflict with the national interest of the United States. He named: ideologues, militarists, think-tankers, and unidentified ethnics. These categories don't descend from on high, to anyone who just asks "what might distract a country, any country, from pursuing the policies that were in its general, collective national interest?" They're prompted by some specific concern or set of concerns. He had someone in mind, or the category wouldn't have occured to him.

So, given that there was someone lurking in his mind: for whom has "dual loyalty" or "divided loyalty" most often been a concept up for public discussion? And: which group or groups most naturally fit into a list that includes think-tankers, ideologues, and militarists?

The answer to the first question is, clearly and simply, Jews. That means (Virginia Postrel's "Indeed, Armed Prophet and Tucker Carlson are the ones doing the disturbing word association. You say 'dual loyalty,' and they think, 'Jews.' Why?" notwithstanding) it's not crazy to at least perk one's ears up for intimations about Jews when the idea of dual loyalty is thrown around. The word association is generated by, well, the longstanding association of the two made by critics of America's Israel policy. True, there's been no single moment of the accusation against Jews as disastrous as the moment of the accusation against Japanese-Americans, but the charge against Jews stuck around for a much longer time.

And I think the answer to the second question, given the focus on Middle East policy right now, given the tendency to "blame" our current policy on a bunch of militarist ideological neoconservatives, and given the fact that "neoconservative" has gradually come to be treated as a synonym for "Jewish conservative," is at least pretty plausibly Jews, or perhaps Jews and Cubans (though my prior disclaimer about "loyalty" and Cubans applies.) For evidence that this set of associations is floating around near the front of people's minds, look no further than today's Kausfiles about "Likudniks." (See also Matthew Yglesias.)

On the other hand...

I agree with Eugene (and with Kaus) that there's a real and fair question to be asked here, and that it isn't evidence of anti-Semitism to ask it. Here, I think, we can take account of change over time. "Dual loyalty" has often been a charge made by anti-Semites, but I just don't think anti-Semitism is particularly rife in the higher reaches of American public life these days. Still, in this case as in many cases having to do with race, one expects a bit of reluctance to raise a charge that has been made to such poisonous effect in the past.

Finally, TalkLeft asks whether there is "anyone out there in the blogistan who believes the reverse of that proposition is true? If so, we'd like to hear from you," as a way of suggesting that Hart's comments were really quite straightforward and non-controversial. I'll say:

1) I don't think that Hart's proposition, with his stated list, is any more true than is the proposition that American foreign policy should not been dictated or unduly affected by: pacifists, university professors, labor unions, farmers, political parties, or any of the other groups that I listed above. If we're going to play the "general good vs. partial interest" Rousseauian game, then we must play it consistently. I don't think it's true that Hart's villains pose a unique danger to the impartiality of American foreign policy, or even that they pose the greatest dangers to it.

2) I'm a skeptic about that Rousseauian game in general. (Hart dresses it up as Jeffersonian, but Rousseauian is more accurate.) I'm not an IR realist and so don't think that the national interest of the United States is a simple, unitary, apolitical, objectively-defined-and-knowable characteristic. (See Matthew Yglesias.) There are components of it that are like that. (IR realism describes an important, maybe the most important, part of international politics.) But the whole thing isn't like that. And to the degree that it is like that, we lack infallible procedures for discovering it. Politics goes into the definition of the national interest. Politics affects who the United States perceives as its allies and who as its enemies. (This is true for any other country as well.) The electorate's, and the elite's, views about what countries share our basic character, goals, and aspirations matters. And ethnic politics is a part of that general political story.

I can point to lots of cases in which I think ethnic political considerations, or partial economic interests, or mistaken ideologies, have led to mistakes in U.S. foreign policy. Many of these I think Hart shares. (Though I think that more, and more important, mistakes have been made as a result of political pressure from partial economic interests, and from an excessive self-regard on the part of "native-born" white America, than as a result of immigrant-ethnic politics.) But I accept that such politics, such disagreement, is part of the business. An excessive suspicion of such diversity and disagreement, an excessive belief in the unified Rousseauian objective national interest, has proven to be bad for us; again, it's that suspicion and that belief that underlay the Alien and Sedition Acts.

I'll close by saying that I have no reason to think Hart is an anti-Semite; I'm glad Hart seems to be running (I like to see thoughtful and serious people run, and I think Hart is more thoughtful and serious than most); and I'm certainly not going to support him regardless of anything having to do with Israel. I don't have an axe to grind here, other than a skepticism about Hart's civic republicanism. But I can't believe that he didn't have Jews in mind, and more in mind than he had Hungarians or Czechs or even the Irish.

UPDATE: CalPundit asks "So what's your real beef?" To quote Dan Drezner quoting the Princess Bride: Let me explain. No, that would take too long -- let me sum up: My beef is 1) an undue selectivity in singling out special interests; 2) casually introducing the traditionally poisonous and anti-Semitic charge of dual loyalty, when he clearly knows it shouldn't be thrown around lightly as evidenced by 3) his absurd claim that he just imagined the threat of dual loyalty in the abstract, with no particular groups in mind.


DRUGGED DRIVING: Hit & Run complains about this item of federal spending:
funding research to develop a saliva field test for drug use so cops can apply the test to drivers they stop. This is in service of "targeting drugged driving," a menace for which no exact harm is identified.
I'm a bit puzzled -- as I understand it, the harm of drugged driving has generally been defined pretty clearly: Being on marijuana, cocaine, and many other drugs (though perhaps not all drugs) tends to make one a dangerous driver, because it impairs one's judgment, one's reactions, or both. Am I mistaken?

     In fact, when I've heard calls for drug legalization -- calls with which I have considerable sympathies -- the claim has generally been "Legalize them, and enact laws to prevent behavior that's genuinely harmful to others, such as distribution to children or driving under the influence." Has the claim now shifted to "legalize them, and don't worry about people driving under the influence"?


SECOND AMENDMENT CHAIR AT GEORGE MASON: The ABA Journal has a pretty balanced article on the NRA's endowing a Patrick Henry Professorship of Constitutional Law and the Second Amendment at George Mason University. The first holder of the Professorship is my friend Nelson Lund, who really is a top scholar both of the Second Amendment and other fields.


THE COSTS OF CONTAINMENT: Andrew Sullivan makes a good point:
I keep hearing from people who insist we should try "containment" of Iraq instead of war. . . . [W]hat can containment mean now? One thing it surely does mean is maintaining sanctions. As Tony Blair just noted, "The moral choice in relation to this is a moral choice that has to weigh up the moral consequences of war. But the alternative is to carry on with a sanctions regime which, because of the way Saddam Hussein implements it, leads to thousands of people dying needlessly in Iraq every year." Exactly. How odd that those who have long accused the West of murdering thousands of Iraqi babies because of sanctions now want to continue those sanctions indefinitely. Of course, some don't. As soon as the pressure is off, they'll get back to lobbying for an end to such sanctions and liberating Saddam to even further horrors. But it seems to me that those who sincerely want to maintain the inspections farce and the sanctions tragedy need to be more honest in confronting the moral cost of this policy: not merely doing nothing credible to deter the threat to the West of weapons of mass destruction; not merely the signal to every terrorist and nuke-hungry dictator that the West is too weak to deal with them; not merely perpetuating and reinforcing one of the most hideous police states on the planet; not merely fatally undermining the credibility of the U.N.; but also maintaining the cruelty of famine for the next generation of Iraqi children. . . . No-one should treat lightly the moral responsibility of waging war. But no-one should discount the moral burden of the alternative either.
I'd make the same point as to the danger that our actions will infuriate Muslims and lead to more terrorist attacks, Islamist revolutions in neighboring countries, and so on. There definitely is a risk that war will lead to that. But there's also a risk that containment will lead to that -- wasn't the stationing of U.S. troops in Saudi Arabia part of Bin Laden's stated reason for attacking on 9/11? If so, why should we think that a war will lead to more such reactions than the drawn-out process of "containment" would? And as Hussein has the time to develop still more weapons of mass destruction -- which he's pretty clearly trying to do -- the costs of containment, which is to say the dangers that a supposedly "contained" Iraq will have more ability to attack its would-be containers (directly and through proxies) become still greater.


SOMETHING NEW FOR ME: I've decided to put together a PowerPoint presentation that law review editors (students who have been on law review for a year, and are now running the show) can use to train law review staffers in writing student articles -- to accompany my forthcoming book, naturally. It's a novel and interesting experience; I'd put together lots of overheads before, and some PowerPoint presentations, which I usually just print out and copy onto overhead transparencies, but they've all been for my own talks. Now I'm trying to figure out what would work best for total strangers to use when they're giving a talk based on my book. Many textbook authors have had to do this for several years now; still, it's new to me. Hope the result is useful . . . .


JACOB LEVY FANS: I'm delighted that Jacob is coblogging with us, and I hope this arrangement will continue indefinitely. As I've mentioned before, I think this blog works well as a group blog, and I hope all our readers -- both new ones that came here for Jacob, and others who have discovered Jacob through this blog -- are happy with it.

     Nonetheless, in case some people would like to be able to read Pure Jacob, they can now do so -- thanks again to our anonymous technical helper -- by using the following URL (which they can bookmark):
Or, if they want to read several of the bloggers, they can write something like:,Orin,Sasha
(Yes, the "%3f" is necessary. The feature also only works if you haven't disabled JavaScript in your browser.)

     Do I encourage you to do this? Absolutely not! The coconspirators are a handpicked bunch, selected for your intellectual delectation; I like them, and so should you. If you go into a restaurant and ask the chef "Should I have your signature dish, but with most of the ingredients left out?," he'll surely say "No, I don't think you should."

     But the customer is always right -- but wait a sec, you folks aren't customers . . . . Still, whether you're right or not, we want to accommodate you; so if you want to have just one blogger, or just a couple of cobloggers, you now know how to do that. Still, we certainly don't advise it, and we much prefer that you love all of us as much as, well, we do.


NOTES ON THE ESTRADA NOMINATION. Some of the commentaries I have read on Miguel Estrada's nomination overlook a point about its historical context. Important seeds of the current filibuster were sown when the Supreme Court decided Bush v. Gore. Most Republicans don’t think about that decision so much anymore, but Democrats do. The Court could have ducked the whole matter easily on the ground that it involved political questions in the Baker v. Carr sense or on other prudential grounds. One reason why that would have made sense is the type of outcome we now see. When a Court decides to entangle Article III in the business normally associated with Articles II and I, a natural risk is that Article III will end up getting splattered with politics. Sure enough, soon after the Court’s decision came down many liberal academics and politicians apopleptic about the result talked together about its implications. Meetings were held. Advice was given. It included the importance of not letting members of Article III courts (i.e., the Justices) rig the composition of the Article III courts by picking the president who in turn picks the judges. Democrats have not forgotten this. (If a more liberal Supreme Court had done the same for Al Gore, conservatives would have had the same reaction.)

     One consequence of those discussions and decisions was that many of Bush’s nominees were stalled for the year and a half leading to last November’s elections. Another consequence is the filibuster now being played out. It might have occurred anyway, as DC Circuit nominations became an arena for various sorts of game-playing during the Clinton years. But this is an unprecedented upping of the ante, and I think it has to be understood as emboldened by the events of December 2000. The feeling remains among Democrats and their base that Bush, who won the election by such a close margin (and, in the view of many Democrats, didn’t legitimately win at all), has no mandate to put people on the federal bench who will steer it significantly to the right -- especially when his victory was helped along by members of the same branch this nomination will affect. (Ironically enough, of course -- or perhaps more than ironically -- Estrada was on the legal team that helped Bush secure his victory in the Court.)

     Of course there’s more to it than this. If the Democrats knew Estrada would stay on the DC Circuit forever they wouldn’t mind so much. It’s about the Supreme Court. Everyone knows Bush wants to appoint a Hispanic. Everyone knows Estrada would be on his short list for any opening that arises this year or later in his presidency. The Democrats understandably have no interest in seeing Estrada on the Court; he’s too conservative, too smart, and too young. Of course they could wait and filibuster if and when he gets the nomination, but then it would be more costly. Today most people in the country have no idea who Miguel Estrada is or that a filibuster is occurring, but the attention and pressure focused on it would be immense if it occurred in the context of a Supreme Court nomination. Filibustering today makes it less likely that a more high-profile filibuster will be needed this summer or next year. In addition to probably taking Estrada out of the running for the Court anytime soon (and this even if the current filibuster fails), it also serves as a show of strength warning Bush not to try to put anyone comparable on the Court. How Bush (or Rove) will respond remains to be seen, but a certain point has been made. The Democrats have the will to make a filibuster work. Bush can decide to try to outlast them, but he may have better things to do this summer than start a cage match over a Supreme Court nomination. We shall see.

     Incidentally, of course, don’t be distracted by the Democrats’ ruse of asking for Estrada’s memoranda from the Solicitor General’s office. It’s a frivolous request that has no chance of being granted, and both sides know it. If it were granted, it would give the lawyers in that office a bad incentive to write their recommendations and analyses with an eye toward how it might play in front of the judiciary committee. For some, of course, this would make no difference; for others it might cause some edginess at the margin. The SG’s office has produced some first-rate judicial talent over the years, and we shouldn’t want its lawyers who hope to follow that path to be looking over their shoulders when they should be giving disinterested advice. But the ruse has served its purpose. The Democrats wanted something legitimate-sounding to use as a basis for the filibuster – something better than complaining about things Estrada said when he was interviewing clerkship candidates for Justice Kennedy (which was the best the Democrats could do against him last fall). Complaining about the need to see Estrada’s memos works better, especially now that it’s clear that the Republicans rightly will refuse to comply.


FRIDAY THE 14TH: What's today again?

Oh, yeah, that's right.

Thursday, February 13, 2003


MORE ON THE GARY HART STORY: TalkLeft interviewed Gary Hart on this, and here's the summary:
Hart says he was not singling out any one group. He had no specific group in mind. He was referring to any group with special interests, including any group that might put its concerns and feelings for the country of its heritage over the best interests of America. His point was that where there is a difference between what is in America's best interest and what is in the best intererests of the homeland or country of origin of another group, America's interest must come first in shaping foreign policy.

Hart was not referring to Jewish Americans. He was not referring to the War with Iraq. He was talking about America's long-term foreign policy role in the 21st century. His comment applies equally to Cuban, Polish, Czech, Hungarian, Greek and Turkish -American citizens. He was talking about all Americans, wherever we come from.
I think Jacob Levy's response that it can't really be about Poles, Czechs, or Hungarians is right; and I think that the suggestions (which I briefly blogged about in an update to the original post) that Jews can't be included because Israel isn't Jews' "original homeland" are mistaken (consider the reference to "the country of its heritage"). But I also think that Hart's original criticism, even if it encompasses Jews as a substantial target of criticism -- as Jacob points it out it probably does -- is factually and morally defensible. One can, of course, also disagree with it (again, see Jacob's post), but I don't think it can be lightly dismissed as anti-Semitic.

     A couple of readers raised an objection to Gary Hart's claim that I hadn't heard before -- that Hart's assertions that ethnic groups dictate government policy are factually unjustified, and that they suggest that Hart is buying into the wrongheaded (and anti-Semitic) view that Jews run American policy as to Israel, as opposed to just saying that Jews try to influence American policy as to Israel (as other groups try to influence American policy as to countries to which they feel a bond). Here's Hart's original statement:
We must not let our role in the world be dictated by ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes, or by Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests.
I do not, however, read Hart's statement that way. He's listing several different groups, and I doubt that he thinks that any one of those groups is literally dictating, in the sense of clearly running, American policy towards its "role in the world." I doubt he sees think-tankers as being influential to the point of dictating American policy. I likewise don't read this as suggesting that Jews are so influential. I continue to read this as complaining that some people are trying to influence American policy based on considerations in addition to true American interests -- a charge that, as I said, can't lightly be dismissed as anti-Semitism, though of course a charge that can be contested on other grounds.


MORE ON THE IOWA PRISON AND RELIGION: Here are some reactions to the story I blogged this morning. This is from Chip Lupu, a leading religion-and-the-law scholar at George Washington University who's probably best described as mildly-liberal-to-moderate:
The Post got the "facts" from reading the complaints filed by Americans United. . . . I gave an interview to Barbara Bradley Hagerty of NPR on this yesterday and she said that she had been to the prison to do a story on this program last year. She admired its results, but she said the facts as she observed them are very close to what is alleged in the complaint (she said there were a few details of life in the InnerChange Wing of the prison that are embellished in the complaint, but not much). This seems like a Religion Clause nightmare -- state support of sectarian instruction; strong material incentives to enter the program; a program from one faith only; a wing of the prison essentially turned over to a religious group, raising all sorts of delegation/monitoring/entanglement problems. As I told Barbara in the interview, this seems to be so blatant a set of violations that I can imagine a judge ordering restitution to the state of monies paid to InnerChange. If that happens, it may discourage other faith organizations from becoming involved in the faith-based initiative.
And here's from Rick Duncan, a relatively conservative lawprof from the University of Nebraska:
Chuck Colson is a hero of mine (and I don't have many heroes), but if the facts are as the Post reports, this does seem to go well beyond accommodation and amounts to religious favoritism.
That's my view, too, as the original post (and the Post story) reports.


FILIBUSTER: Brandt Goldstein in Slate has a nice piece on the history of filibusters, which includes the following particularly amusing paragraph:
A single senator thus had the power to hold the entire body hostage on an issue, so long as he was prepared to keep talking about it. Hence the term "filibuster," derived from the Spanish filibustero, or freebooter, meaning "pirate." (That word ultimately goes back to a pair of Dutch words that mean "free" and "booty" -- which may or may not be relevant to goings-on in the Senate.)


WHAT'S THE WORLD COMING TO? Reader Michael Williams writes:
Here's a quote from a CNN article regarding Clara Harris and her murder of her husband:

In addition to the murder verdict, the nine-woman, three-man jury also found Harris guilty of the special issue of using or exhibiting a deadly weapon -- the car -- in the commission of the July 24 crime.

"We never thought it would come to this," a defense attorney told CNN shortly after the verdict was read. "It's as if (the jury) threw the whole case about the marriage and the mistress out the window."

I haven't been following the case, but the quote by the defense attorney just makes me feel good inside. Imagine, the victim's affair and mistress didn't get his client out of murder charges . . . what's the world coming to?


WELL, OK, JUST ONE POST... About the Gary Hart story. (See Armed Prophet, Eugene, Josh Chafetz, and Virginia Postrel, all discussing this quote:
We must not let our role in the world be dictated by ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes, or by Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests.
Virginia says,
Hart is indeed "talking about someone other than Jews." The language he uses"their original homelands"clearly refers to immigrants with loyalties to the old country. Jews come from countries they were only too glad to leave. And while people do refer to Israel as "the Jewish homeland," that doesn't mean Israel is "their original homeland" in this sense.

Nope. Hart is talking about immigrants. I'm not sure which ones: Mexicans? Arabs? Chinese? There are plenty of groups that might take offense. But absent further evidence, assuming he's talking about Jews doesn't survive Occam's Razor.

Indeed, Armed Prophet and Tucker Carlson are the ones doing the disturbing word association. You say "dual loyalty," and they think, "Jews."
(Eric Muller expresses similar skepticism.) I don't lightly disagree with Virginia, who's right about most things. But I'm not buying this. First of all, the list "ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes" sounds to me like a way of saying "neocons, neocons, and neocons." What other ideologues and think-tank theorists could plausibly be tagged with the charge of running American foreign policy right now-- especially in conjunction with "militarists"? And if the first three items on a list are "neocon" and the fourth might or might not be "Jews"-- well, I'm going to go with the hypothesis that it is. The idea that U.S. foreign policy is excessively driven by obeisance to Irish immigrants does have some currency-- but since the Good Friday agreement people have mostly lost interest. Arab immigrants have mostly been non-Muslim and Muslim immigrants mostly non-Arab; while there was a bit of Arabs-in-Michigan pandering in 2000, I've never heard anyone say that our permanent suck up to the House of Saud is driven by Arab-Americans' political power. Chinese immigrants are roughly balanced out by Taiwanese immigrants and by refugees and exiles from the PRC. More importantly, reading the passage as meaning one of these groups creates a "one of these things is not like the other, one of these things just doesn't belong" dynamic. If we read it as meaning "Jews," then all four items in the list are "groups [allegedly] driving us to war with Iraq."

Note that Hart's other proffered group, Cubans, could be the fourth item on a list that begins "neocons, neocons, neocons," but it doesn't really match his words. It's true that their political power, and their continued concern with their original homeland, disproportionately drive our Cuba policy. But a conflict of "loyalties" would be a bizarre way to describe the situation. Yes, Cuban-Americans are loyal to their idea of Cuba. But they're not "loyal to Cuba" at the expense of their "loyalty to the United States." They're avowed enemies of the current Cuban state. It's not as though they're supporting Castro over Bush.

So which group a) belongs in the company of groups that Hart thinks are pushing us to war with Iraq and b) naturally fits with the repeated use of "loyalties?"

It ain't the Armenians.

At some point I'll blog about the weird pseudo-Jeffersonian civic republicanism that Hart has picked up somewhere in his graduate studies and written a book about. It's odd to see the words "republic" and "republican" used so often anymore, in the sense Hart means them. And it's odd for some good reasons: because this kind of civic republicanism is an unappealing, illiberal ideal that was in its death throes during the American founding and is almost entirely irrelevant to modern liberal commercial democracies. Hart's creepy enthusiasm for mandatory national service predates his graduate studies, so my guess is that he went looking for a philosophical justification for his views more than being driven by a big new idea he found at Oxford. But the big new idea does seem to be organizing an ever-increasing share of Hart's worldview. (One of the last gasps of this kind of anti-pluralist republicanism was the Alien and Sedition Acts. Since then, we've become a bit more comfortable with the idea of conflict, argument, parties, factions, and democratic disagreement, without throwing around the idea that dissent was tantamount to loyalty to another state.)


PROFESSOR FIRED AND STUDENT EVICTED FOR CRITICIZING UNIVERSITY ADMINISTRATION: That's what The Foundation for Individual Rights in Education is saying has happened at Shaw University in North Carolina -- and they seem to have newspaper articles and copies of actual letters from the university administration to prove it. I haven't researched the matter closely myself, but I've found FIRE's factual accounts to be quite accurate in the past. Shaw is a private university, so there's no constitutional problem here -- but there seems to be a serious breach of academic freedom traditions. Shaw may have the right to behave this way, but others are, I think, right to criticize it. Here's an excerpt from FIRE's press release, but, as I said, you can find newspaper articles and original documents at FIRE's site:
At Shaw University during fall 2002, Gale Isaacs, long-time professor and chair of the Allied Health Department, was fired for co-authoring a faculty resolution that criticized the University’s president and Board of Trustees. President Talbert O. Shaw personally fired her for “faithlessness [and] disloyalty.” She had worked at the University for nineteen years. Four days later, Shaniqua Bizzell, a student who was preparing to graduate within a month, read aloud and distributed Professor Isaacs’ resolution in the student center. President Shaw summoned her to his office and expelled her without a hearing. Several days later, she received a letter from Vice President for Student Affairs Vaughan Witten that found her guilty of “causing damage to the reputation of those falsely exposed to the scurrilous accusations.” Although the letter rescinded the indefensible expulsion, she was given several days to “move out of housing.” . . .

On October 24, 2002, an anonymous resolution circulated among Shaw University faculty, lamenting “the present atmosphere of contention and distrust of the Faculty and Staff . . . with regard to the Shaw University Board of Trustees, the Academic Administration and the sitting President.” It called for President Shaw to honor his promise to step down at the end of 2002. On November 12, Isaacs admitted to being one of the authors of the letter. She was immediately stripped of her position as department chair. On November 18, she received a letter of termination from President Shaw. The letter stated that her involvement in the resolution “demonstrated faithlessness in and disloyalty to the University and exhibited an unwillingness to work for the common good of the University.” She was banned from campus, given until the end of that day to gather her belongings, and escorted from her office by campus security. . . .


ANOTHER SILLY POLL: Courtesy of The History Channel:
Which right or freedom is most crucial to America's democratic way of life?
  • Freedom of religion
  • Freedom of speech
  • Right to bear arms
  • Right to due process
  • Right to trial by jury
People are expected to choose one -- but how does that make sense? Liberty and democracy is protected by the combination of rights, not any one right in isolation; deciding which right is the "most crucial" is pointless. And, of course, there's the usual self-selection bias, coupled with the strong online networking of pro-gun forces, yielding this result:
Freedom of religion 7% 1073 votes
Freedom of speech 20% 2964 votes
Right to bear arms 67% 9856 votes
Right to due process 4% 567 votes
Right to trial by jury 2% 349 votes

Total: Total Votes: 14,809
Means absolutely nothing.


WHO IS JOSCHKA FISCHER? Michael Kelly writes in the Washington Post that pacifist Joschka Fischer was, earlier in life, a street thug and a likely aider of domestic terrorists. A well-written piece that's much worth reading.

     Naturally, all this doesn't undermine Fischer's arguments on the merits (though I think those arguments are unsound) -- but it does show that Fischer shouldn't be seen as having any moral authority, and that when he says "I am not convinced," we shouldn't be terribly moved by his judgment.

UPDATE: The Kelly piece is based on a longer New Republic piece; one reader says the New Republic piece shows Fischer in a considerably less troubling light -- check out both and see for yourself what you think about Fischer as a result.


OPERATION . . .: Daniel Wiener writes:
I haven't seen anyone else speculating on what the invasion / liberation of Iraq will be named. After "Desert Shield" and "Desert Storm" will it be "Desert Avalanche"? Or will they drop the "Desert" prefix and go in a completely different direction? Inquiring minds want to know . . . .

The creative minds of the blogosphere may also prefer to come up with their own suggestions. In case anyone is interested, I'm inviting people to post their ideas in my comments section.
Well, I have an idea -- because of the location, we should stick with the Desert theme, but maybe we should pluralize it, to show that it'll cover more territory than the previous operations. We should also work in an element from the successful Panama regime change, which was Operation Just Cause. The result:
Operation Just Deserts


Co-blogger Juan Non-Volokh takes me to task for suggesting that owning an SUV is "environmentally selfish." (And my oh my, you should have seen my inbox overflowing with outraged messages from SUV owners). The costs of SUV ownership (e.g., increased gas consumption), he suggests, are fully internalized:
"It's true that SUVs, as a class, consume more fuel per mile than other vehicles, but SUV owners pay for this choice. Because their vehicles require more gas, they end up paying more to travel a given distance than those of us who prefer to driver smaller and less fuel-hungry vehicles."
And again later:
"In my view, so long as people pay for the resources that they consume, there is nothing inherently "selfish" about an individual's choice of vehicle, home, or whatever. Until it directly impacts me, it's simply none of my business."
But not all costs associated with SUV ownership are internalized in that way. There is, for instance, the fact that the increase in the number of SUVs makes it more dangerous for me to drive a smaller vehicle; that is a cost imposed on others. So is the cost of increasing atmospheric CO2.

     Note to people about to send me nasty email: I'm not saying that people should be coerced into buying small cars. I'm not saying we should sign the Kyoto Protocol. I'm not saying that we should increase the ridiculous fuel economy standards. I'm not saying that every time there are externalities, the government should step in and fix the problem.

     I am saying that the world would be a better place with fewer SUVs, and that shaming is a viable and non-coercive way to bring this about.


"WHEN MUST THE GOVERNMENT DISCLOSE GUN OWNERS' ADDRESSES?" It turns out the Supreme Court's remaining major gun case this Term is actually a Freedom of Information Act case. David Kopel has a short piece about this in an American Bar Association publication; I'm not a FOIA expert, so I can't judge it directly, but I've generally found Kopel to be highly knowledgeable and trustworthy.


WHAT ARE BUSINESSES TO DO? InstaPundit reports the following:
SEVERAL READERS report that they emailed Daimler-Chrysler to express their unhappiness with Gerhard Schroeder's anti-American tilt. Here's the rather unsatisfactory reply they've been getting:
Thank you for providing us with your thoughts on U.S./German relations.

We recognize your concerns, and assure you they are shared by all of us both here in the U.S. and at our headquarters in Germany.

You may be interested to know that during a speech to metalworking companies in Germany last year, Daimler Chrysler Chairman and CEO, Juergen Schrempp, expressed the following sentiments: "The USA and Germany have always been historically closely connected with each other both through trade and capital, as well as through culture and society. And, this I say as chairman of a German-American corporation -- we will do everything to promote and foster this friendship."

We apologize for any distress this situation causes and hope that you continue to look upon your Daimler-Chrysler ownership with pride.
I wonder how much they're paying the PR genius who drafted this reply?
Well, I doubt the message is the work of a "genius," but what's a business to do? Say "we disagree with Schroeder, and support the war"? That will doubtless be picked up by the media, and will alienate more people; it might also get them into trouble with the German government, something that any business that is concerned about protecting its shareholders' investment should worry about. It might win them a few friends, but I suspect that the new friends will be less pleased with Daimler-Chrysler than the new enemies will be upset with it.

     Businesses' job is generally to enrich their shareholders by providing a competitive product to their customers, with the minimum of overhead -- not to speak out on controversial issues of social policy. They have a constitutional right to speak, but that doesn't mean that it's generally wise for them to exercise this right. I can imagine some unusual circumstances where we might feel it necessary or proper for businesses to speak up, either because the policy directly and substantially affects them, or where the policy is so outrageous that all decent people should say something. But those should be the exception, not the rule. Sounds to me like Daimler-Chrysler issued precisely the sort of mealy-mouthed, banal, noncommittal statement that they had to issue.


HISTORY OF POLITICAL THOUGHT: Does anyone know of good, recent articles or chapters or review essays on the state of the history of political thought, or on the state of methodological disputes thereof? Broadly construed is fine-- that is, the history of social theory or the history of legal thought or the history of moral philosophy might all be useful. But most useful would be, e.g, a review essay or synthetic article arguing about the Cambridge School and Straussianism and their methodologies and legacies. Substantial review essays of Skinner, Regarding Method, would also be useful (NB: Yes, I know the Tully edited volume Meaning and Context; I'm looking for work that's more recent than that.) Thanks! PS: Yes, this means I'm emphasizing my day job today rather than blogging...


ANOTHER "COLLEGIALITY"-BASED DISMISSAL AT BROOKLYN COLLEGE: Erin O'Connor writes about this. In principle, I agree that collegiality is valuable in a university department -- but in practice, I share Erin's fear that firing people based on their lack of "collegiality" risks instilling conformity and subservience to the administration, rather than true collegiality.

     If the administration wants to run the university and its departments through traditional command-and-control, that might be fine, if they don't interfere with scholars' ability to publish; I'm not sure, but it's a plausible management model. But if the administration stays with the tradition of departmental self-government, then this sort of collegiality test will damage self-government much more than it improves it.


SMALLPOX: A fellow UCLA Law grad writes, in reaction to Jonathan Rauch's column about health care workers refusing to be vaccinated against smallpox:
I am proud to say that both my wife and I were recently vaccinated against smallpox as part of a NIH study at Stanford University (see

The worst part was having to wear a bandage on my arm for two months until the scab fell off. Other than that it was less of a bother than my yearly flu shot.
Very happy to hear that people are volunteering for this sort of thing. Obviously, the risk isn't just the "bother" but also the slight chance of serious adverse reaction, but I agree entirely with Rauch and my correspondent -- we should be willing to run the risk (unless we have some specific reason to think that we're especially and highly at risk, for instance because we're immunosuppressed).

UPDATE: My correspondent also passes along the following:
By the way, one other comment on what led us to get vaccinated.

Immediately after 9/11, I was amazed that there was gargantuan efforts made to beef up airport security, as compared to security efforts for other vunerable areas. Did people really think that terrorists smart enough to stage the 9/11 attacks would do the same thing again? (I think the phrase is "fighting the last war.") So I promptly realized the next likely area of attack: smallpox, the perfect weapon of mass destruction against a totally unvaccinated world, particularly if you have at your disposal a dozen or more suicide volunteers who will ride the nations' subways while they are contagious.

Of course, smallpox vaccine was nowhere to be found. The Stanford/NIH study did not start until the fall of 2002. And I still can't get vaccine for my teenage kids, both of whom are old enough to consent to being vaccinated. (The Stanford study only vaccinated older people who had been previously vaccinated before they stopped in the early 1970's). If health workers don't want to be vaccinated, there are plenty of the rest of us who do.


NO SHAME IN SUVS: I don't much like to disagree with my co-bloggers, but I do not comprehend how owning an SUV amounts to "environmental selfishness," as suggested by David below. It's true that SUVs, as a class, consume more fuel per mile than other vehicles, but SUV owners pay for this choice. Because their vehicles require more gas, they end up paying more to travel a given distance than those of us who prefer to driver smaller and less fuel-hungry vehicles. Indeed, due to the substantial state and federal excises imposed on gasoline -- approximately one-quarter to one-third of the total price in most jurisdictions if I'm not mistaken -- SUV owners contribute a disproportionate share to the road maintenance and mass transit services that are funded through gasoline taxes.

The website to which David links isn't particularly illuminating. The lead complaint on the SUV "ticket" cites claim from the Union of Concerned Scientists that "If everybody in the U.S. who drives an SUV drove a car instead, we could cut out Middle East oil imports entirely." This is simply absurd. First, oil is a global commodity; there is no distinguishing oil by its source on the open market. The U.S. imports oil rather than producing more domestically because it is substantially cheaper to purchase oil produced elsewhere. Were the U.S. to reduce domestic oil consumption, the most likely result would be increase the proportion of oil obtained from overseas. There's another absurdity underlying the UCS statement: It assumes that no SUV drivers use SUVs because SUVs are capable of performing tasks -- transporting large numbers of people or cargo, for example -- that cannot be performed by a single automobile. Once this unrealistic assumption is relaxed, it must be acknowledged that replacing all SUVs with passenger cars would either a) increase the overall number of vehicle trips as people use multiple cars to perform tasks that otherwise would be performed by a single SUV, or b) deprive many Americans with the ability to do those things which require more passenger or cargo space than provided for in passenger cars. (Note: It's no answer to say that these people could use minivans or pick-up trucks, as these vehicles have the same environmental "problems" as SUVs.)

As for air pollution, it is well recognized that a small fraction of the vehicles on the road are responsible for a disproportionate share of emissions. For some pollutants, such as volatile organic compounds (VOCs) -- a component in tropospheric ozone (aka "smog) -- the ratio is truly astounding: the dirtiest tenth of the vehicle fleet is responsible for one-half the emissions while the cleanest half of the fleet barely contributes anything at all. To put this in more tangible terms: out of every ten vehicles on the road, the most polluting vehicle emits as much VOCs as the remaining nine. It makes sense to do something about this dirtiest ten percent -- but all this has absolutely nothing to do with SUVs, as SUVs (and other vehicles classified as light trucks) are not disproportionately represented in this dirtiest ten percent. The dirtiest vehicles tend to be those that have malfunctioning emission control equipment or that are improperly maintained. It is true that some SUVs emit several more times more than new passenger cars, but this means little. Five times an infinitesimal number is still next-to-nothing. In short, it may be reasonable to be concerned about air pollution, but this doesn't justify environmental charges against SUVs. (It should also be noted that increases in fuel economy do not correlate with reductions in emissions for all pollutants. In some cases, it's just the opposite.)

If owning an SUV is "environmentally selfish," then so must be any decision that results in an "unnecessary" increase in resource use. By this standard, "environmentally selfish" behavior would include owning a large house (better not have a separate home office!), traveling long distances for vacations (no flights to warmer climes!), or even having several children (each kid is an additional consumer!). I reject this analysis wholeheartedly. In my view, so long as people pay for the resources that they consume, there is nothing inherently "selfish" about an individual's choice of vehicle, home, or whatever. Until it directly impacts me, it's simply none of my business.

David may not like SUVs all that much. In matter of fact, I don't like them much either, nor do I like Cadillacs, Corvettes, minivans, or PT Cruisers. But I don't think one can charge that driving an SUV -- or any of these other vehicles -- is, in itself, a sign of "environmental selfishness." Whether a given vehicle choice smacks of "bad taste" . . . well, I'll just leave it at that.




PRISONERS GETTING PRIVILEGES FOR PARTICIPATING IN A RELIGIOUS PROGRAM: The Washington Post has a story about this case. If the facts are as the plaintiffs allege, this seems to be a clear violation of the Establishment Clause, on two separate but related grounds: it (1) involves preferences being given to prisoners based on their willingness to declare religious beliefs and participate in religious conduct, and (2) thus coerces -- not with a gun to the head, but with the offer of very substantial benefits, which is seen as coercion enough in the Court's Establishment Clause jurisprudence -- religious behavior. It may also (3) involve government money going to religious teaching (though again there's a controversy about this question) in a preferential fashion, rather than as part of a neutral program (such as the GI Bill, school choice, or the charitable tax exemption) that includes religious organizations on the same terms as secular ones.

     The religious program here -- InnerChange -- is said to be quite helpful in reducing recidivism, which of course is good. But under the Establishment Clause, the government may not serve even this worthy goal by preferences for a particular religious program, or by practices that coerce religious observance. If the state wanted to set up a true choice system where prisoners could participate in many programs, and get the same privileges for participating in any of them, that may well be permissible. But the government may not say "If you want these special benefits, you must participate in a program that requires you to 'agree to immerse [yourself] in Bible study and "the transforming love of Jesus Christ."'"


4 SHAME: If you are like me, and deplore the plague of SUVs and similar monsters on our streets, you might check out Earth on Empty, a group of artists out of Cambridge MA; they sell books of (fake) tickets that one can leave on the windshields of the offending vehicles, calling them to task for their (a) environmental selfishness and (b) bad taste. Shame may be the only weapon we have -- but it also may not be a bad one.

Wednesday, February 12, 2003


WATCHING THE ESTRADA FILIBUSTER: C-SPAN has been broadcasting the Estrada filibuster in the Senate all day. I’ve mostly been typing away at a law review article, but I’ve had the TV on for the last several hours and I can’t help but stop and watch from time to time. (With How Appealing turning into Estrada Update Central, it seems to be the thing to do.) I can’t decide whether it’s the U.S. Senate at its best, or the U.S. Senate at its absolute worst. It’s incredibly repetitive, of course, so I’m tuning in more for the spectacle than for anything else. But the spectacle is pretty good.


WEB PAGE RELATED TO MY ACADEMIC LEGAL WRITING BOOK: It's still in the early stages -- more a mockup than a final version -- and of course the book itself won't be out until April, but it should give you the flavor of what I'm shooting for. The page won't have the full text of the book, but it'll have most of the introductory material and part of the first chapter; and it will also have a good deal of supplementary material, such as pointers to law review addresses, sample document templates, sample cover letters, and so on. Suggestions for more items are most welcome.


LETTERS TO THE WASHINGTON POST ABOUT THE LOTT STUDY: Fellow lawprof Joe Olson forwarded these to a discussion list I run; I have no reason to doubt that they’re genuine. I don't know which, if any, will be published:
  1. Dear Editor:

    The Washington Post unfairly casts doubt about whether John Lott suffered a hard disk crash on his computer in 1997 (A Fabricated Fan and Many Doubts, February 11). I was co-authoring a paper with him at the time and I was affected by some data that were lost. We lost a very large data set that had been used to estimate the wage premium paid to workers exposed to long-term latent hazards in the workplace. The loss prevented us from performing additional research and significantly delayed publication.


    Richard L Manning, PhD

  2. John Lott and I worked together on a project examining the impact on government spending of women being granted voting privileges. Some of this research, utilizing older census data, was published in the Journal of Political Economy in December 1999. But the publication of other research utilizing recent survey data was set back when the basic data was lost in 1997 when John's hard disk crashed. Thus, assertions that John fabricated the story of his disk crashing are incorrect.

    Lawrence W. Kenny
    Professor of Economics
    University of Florida

  3. On February 11, 2003, in the article "A Fabricated Fan and Many Doubts", the Washington Post incorrectly questioned whether John Lott experienced a computer crash in the summer of 1997.

    I can testify that Mr. Lott's computer crashed at that time and that he lost everything he had on his hard drive. He and I discussed this crash many times. John and I were co-authors on a project that ended prior to the crash. Because he lost all the data from our project, I replaced as much of the data as I could.

    David B. Mustard
    Terry College of Business
    528 Brooks Hall
    University of Georgia

  4. Dear Editor,

    I believe you draw an inaccurate comparison between the issue of Dr. Lott's survey and the Dr. Bellesiles case in your article "A Fabricated Fan and Many Doubts" of February 11. I am not an expert on the Dr. Bellesiles case, but my understanding is that there was little or no contemporaneous corroborating evidence of the flood that he reported as destroying his records and that his results were not reproducible by other scholars in the field. Whatever the case is with Dr. Bellesiles, these are definitely not true in Dr. Lott's case.

    There are numerous contemporaneous witnesses to Dr. Lott's hard-drive crash - I am one of them. I began working for Dr. Lott as a research assistant shortly after the hard-drive crash in 1997 and I distinctly remember him mentioning it to me at the time. More importantly, Dr. Lott's general results have been reproduced in many peer reviewed academic journals and he has a strong reputation among academics for distributing his data and publishing reproducible research.

    Dr. Lott himself has now reproduced the survey and released the names of all people who worked on it and the phone records from the calls. The results are largely in line with his previous results and no one has questioned the integrity of the new survey.

    Dr. Lott has a strong academic reputation for remaining faithful to the scientific protocol. Your comparison was unwarranted and inaccurate.

    John Whitley
    School of Economics
    Adelaide University, AUSTRALIA 5005
UPDATE: Julian Sanchez says this is irrelevant, because there's no doubt that the computer crash happened -- the doubt is whether there was data from a specific survey that was lost in the crash. I think the confirmation of the crash is helpful, but I agree that it's surely not dispositive.


AN ALTERNATE MAP OF THE MUSLIM WORLD: From the Cleveland Scene; very funny. Thanks to InstaPundit for the pointer.


UK FOREIGN SECRETARY JACK STRAW PUTS IT WELL: "If Saddam bows to the UN's demands and co-operates promptly, what is the need for greater numbers of inspectors? If he maintains his refusal to cooperate, how will higher numbers help? Lethal viruses can be produced within an area the size of the average living room. In the absence of Iraqi cooperation, even a thousandfold increase in the UN monitoring, verification and inspection commission's capabilities will not allow us to establish with any degree of confidence that Iraq has disarmed." In the Guardian; thanks to

WHAT HAPPENS WHEN YOU CAN'T SPELL "GUN": I quite forgot that the Woody Allen connection (thanks to Sasha for the reminder).

UPDATE: Clayton Cramer has more along these lines.


Q & A WITH CHRISTOPHER HITCHENS: Some other blogs have already linked to this interview, but I hadn't seen it until someone e-mailed it around. It's both entertaining -- especially because of Hitchens' fearless (though sometimes excessive) bluntness -- and substantive; I highly recommend it, though I don't agree with all of it.

UPDATE: The same publication runs a piece by a writer whom Hitchens accuses of anti-Semitism, responding to Hitchens' charges. As I mentioned, I certainly don't endorse all of Hitchens' views, and I take no view on this particular matter (which is a small tangent from Hitchens' broader point); still, I thought it would be good to link to the response as well as the original charge.


AMERICAN JEWS AND ISRAEL: Gary Hart is being called anti-Semitic for the following statement (emphasis added):
We must not let our role in the world be dictated by ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes, or by Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests.
ABC's The Note writes:
For the second day in a row, former Senator Gary Hart gave a speech in the Bay Area in which he said, "We must not let our role in the world be dictated by . . . Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests."

The Note and others who still remember Pat Buchanan's talk of "New York bankers" wondered what exactly the Senator meant.

So after he was done speaking at the Stanford Law School yesterday, The Note waited patiently to ask him to whom or to what he is referring when he makes this point. . . .

[T]he Senator . . . seemed at first reluctant to give any specific examples, but then offered up Irish Americans and Cuban Americans as two of many examples of lobbying groups who exercise disproportionate power, sometimes, in his view, skewing US policy.
But Armed Prophet is not persuaded. (Thanks to InstaPundit for the pointer.)

     Now it may well be that Hart was indeed partly or entirely referring to Jews. But the problem is that the factual allegation can't easily be dismissed. I've certainly heard many Jews -- not particularly my family, but many others -- consider a political candidate's stance on Israel as a very important component of their judgment; that's the well-known "Is he good for Israel?" question. Many might have taken this view because they thought (as I generally do) that support for Israel is right on its own terms, and good for America. Still, I suspect that many others might have been more emotionally and intellectually committed to Israel's interests than to America's.

     This is not disloyalty to America: Israel and America have generally been allies, so setting aside a few incidents such as the Jonathan Pollard espionage case (on which I know too few of the facts, so I won't comment on it), American Jews have rarely had to clearly choose between "good for America, bad for Israel" and "bad for America, good for Israel." But it is divided loyalty -- a situation where some people's affection for another nation may at times distract them from deciding based on pure consideration of American interests. (I set aside those who care only about right and wrong, and not about the welfare of any particular nation; suffice it to say that plenty of people do focus on one or another nation's welfare.)

     Now this sort of mildly divided loyalty may not be that bad, especially when the other nation is in much greater jeopardy than America. Certainly lots of people from lots of groups, including some Irish-Americans and some Cuban-Americans, have acted this way; and even if it is a sin, then it may well a minor one, so long as the interests of the countries don't become strongly opposed. Moreover, it's hard to estimate -- and easy to exaggerate -- the precise magnitude of this divided loyalty. Many Jews doubtless focus on American interests (or on general morality) to the exclusion of Israeli interests; many others give Israeli interests only slight consideration. Finally, when people accuse Jews and only Jews of this, and don't notice similar behavior by other groups, that might indeed warrant charges of anti-Semitism.

     But I cannot simply condemn as anti-Semitism a suggestion like Hart's -- even if it does at least partly refer to Jews. The factual foundation for it seems to me too plausible, based on my own experience; and the implicit normative claim, which is that Americans ought to entirely set aside their loyalties to foreign nations, seems to me too credible.

UPDATE: Two readers pointed out that Israel is of course not the "original homeland" of most Jews, unless you reach over 2000 years back. But many Jews do think of it that way, because they are willing to think back 2000 years; and in any event, many Jews do have some feelings towards Israel that are comparable to the feelings that some third- or fourth-generation Irish-Americans have to Ireland, or that some first- or second-generation Cuban-Americans have to Cuba. Jews are therefore commonly seen as having this sort of "my original homeland" relationship to Israel; and I suspect that both Hart and his audience therefore saw some Jews as being included within Hart's criticism, rather than focusing on questions about how far back "original" goes.


BUT IT'S NOT CENSORSHIP: Responding to my post below, a reader writes:
For pete's sake -- this is not too far from book burning. A question for you as a free speech expert: If this nonsense were to happen here (maybe it already has) are there any free speech implications that would indicate one cannot ban the teaching of the spelling of a word?
I certainly think the Canadian school's action are foolish -- but they aren't free speech violations, and wouldn't be even in the U.S.

     The question here is what should a government-run school teach, not what should private people be able to say. Someone must decide which words to include in a test; and every decision to include, say, 20 words, is a decision to exclude all other words.

     Here, the teacher, acting on behalf of the school, originally selected some words including "gun." Now, the school's administrators seem to have changed this selection, to exclude "gun." They're constitutionally entitled to do that, and parents are entitled to urge them to do this. Government officials, influenced by and accountable to the voters, are allowed to decide the content of the government's speech. I think that this particular decision is unwise -- but it's not a free speech violation.


DON'T EVEN TEACH THEM THE WORD GUN: From the Ottawa Citizen, via Best of the Web and an anonymous correspondent; my comments follow:
The word gun was banned from spelling tests in one school only and not across the Upper Canada District School Board, board officials said Tuesday.

Terry Simzer, the Brockville-based board's public relations officer, said the word was removed from Grade 1 spelling lists at Lombardy Public School where a complaint originated from a parent, not from all schools as had been widely reported.

"The (complainant) and the teacher had an amicable meeting and it was agreed to remove the word from the spelling list,'' Simzer said Tuesday.

"It's up to the principals at other schools to decide whether that word is in use or not.''

Simzer said earlier news reports of the word's removal from all schools across the board had the board scrambling to clarify its position on the matter.

The whole thing started when Chloe Sousa, 7, brought home from Lombardy Public School a list of 10 words to learn. Each Friday her class is tested on these words. By last week, the class had worked its way through the alphabet to the letter G.

Amanda and Mark Sousa, who consider themselves to be pacifists and who are raising their two young children with this governing belief, were shocked when Amanda's spelling list last week included the word gun.

"I realize people hunt in this area, but I still don't think that warrants the teaching of this word to my daughter or any other child," said Mrs. Sousa. . . .

Mrs. Sousa wrote a letter to her daughter's teacher describing her views on the word gun, her unease with any child learning to spell the word, a few alternatives, and the wish to speak to the teacher about its inclusion on the list.

"The word gun is synonymous with death. I'm racking my brain trying to figure out why a seven-year-old would need to learn this word," said Mrs. Sousa . . .

"I don't think this is an issue of political correctness. It's an issue of protecting your child from violence. Guns are violent. End of story," said Mrs. Sousa. . . .
A few thoughts:
  1. Kids don't learn how to spell gun. This doesn't keep them from using guns -- you don't need to know how to spell the word to use it -- but it does make it harder for them to write effectively about guns. (Would you trust an article that complains about "guhnns and ryefels"?) Therefore, the kids of anti-gun people will grow up to be unable to persuasively communicate their anti-gun opinions. Say, that's not a bad idea!

  2. "'The word gun is synonymous with death. I'm racking my brain trying to figure out why a seven-year-old would need to learn this word,' said Mrs. Sousa." Hmm; the word gun is synonymous with death. (After all, consider all the competitive death sports in the Olympics, or the millions of Americans who like to go to death ranges and shoot death at paper targets.) Does it follow that seven-year-olds shouldn't learn the word "death," either? If they learn the word "death," why, then, they might die! Or kill people. Or something.

  3. Was there some odd Canadian holiday yesterday, maybe some sort of February Fools' Day?


L'AFFAIRE LOTT: The Chronicle of Higher Education devotes this week's prominent Hot Type column entirely to John Lott (link only accessible to subscribers, unfortunately.) It's a good, careful piece-- discussing Mary Rosh and Julian Sanchez but also the more general issue of the 1997 survey; the reporter quotes both Lott and James Lindgren.


DREZNER AT TNR: My colleague and fellow poli-sci blogger Dan Drezner has a new column up at TNR, about multilateralism.


LOS ANGELES CITY GOVERNMENT MAY ISSUE AN ANTI-WAR RESOLUTION: So says the American Reporter; my compliments to my former UCLA-Law-Review-mate Jack Weiss (editor-in-chief my year), who is opposing these moves:
The City of Los Angeles on Thursday may become the largest municipality in the nation to take a formal position on a possible war with Iraq -- and the issue has already sharply divided normally like-minded members of its City Council.

Two competing resolutions are scheduled to be heard at a meeting of the council's Rules, Elections and Intergovernmental Relations committee tomorrow morning, and could be forwarded to the 14-member City Council for a vote on Friday.

Both resolutions state they oppose a war with Iraq on humanitarian grounds, but the stronger of the two rejects any unilateral attack by the United States on the regime of Iraqi president Saddam Hussein, while the other urges diplomacy first and war only as a last resort.

The first, crafted by Hollywood-area Councilman Eric Garcetti, weighs in on the human and financial cost of the war -- estimated at $9 billion to $13 billion dollars per month -- and worries aloud about the possibility of a possible preemptive nuclear strike by the United States, an option Presdent Gerge Bush says he will hold open if Iraq attacks with chemical, biological or nuclear weapons it is believed to possess. . . .

The other, introduced by Hollywood Hills representative Tom LaBonge and Mayor James Hahn's sister, Councilwoman Janice Hahn, is backed by the council's lone Arab-American, former police union head Dennis Zine of the conservative western San Fernando Valley, and downtown Los Angeles representative Jan Perry, one of just two black councilmembers. It expresses support for U.S. servicemen, notes that 271 LAPD officers and 326 other city employees are military reservists who may be called up, and urges the President to exhaust all diplomatic measures before going to war.

"We give our unconditional support to U.S. military personnel serving at home and abroad in their tireless battle against global terrorism," the LaBonge motion said. . . .

In an early test of the stronger antiwar resolution, Garcetti -- a young, brainy, movie-star handsome former Harvard teacher and son of a former two-time Los Angeles District Attorney, now in his first term on the council -- barely prevailed, winning six votes to get it referred to the rules committee. A seventh councilman, Nick Pacheco, has also indicated his support, according to published reports.

But former Federal prosecutor Jack Weiss, whose council district includes most of the affluent and famously liberal West Los Angeles, said he would not support either resolution because they were not the proper business of the body.

"It's not the sort of work we should be doing," the Los Angeles Times reported him saying. . . .

Hahn's director of communications, Courtney Chesla, sent out an email over Hahn's signature saying, "The City Council is currently reviewing 2 motions relative to the war in Iraq. Both of these motions are attached. Your neighborhood council may also want to weigh in on this action item."

At the meeting of the Hollywood neighborhood group, interim board chairman Joel Fisher, a political science professor, defended the messages as "informational," but at least one speaker said the attachment of a flyer urging NO WAR ON IRAQ was not a neutral statement.

Antiwar activist Russell Brown, who has organized many of the neighborhood council meetings here, said he included the flyer because council members "wanted us to pass it on." . . .
UPDATE: The text of the resolutions seems to be up at the Lonewacko blog.




Dear Professor:

I have some UCLA School of Law trivia for you...

How many Native American students are, according to the most recent American Bar Association statistics, presently attending the UCLA School of Law?

(The ABA statistics show that there are a total of 951 law students at UCLA).

Would your guess be 50? Or perhaps there are 25 Native Americans attending ULCA School of Law?

Unfortunately, you'd be wrong on both accounts!

According to the American Bar Association, out of the 951 students enrolled at the UCLA School of Law, there are only EIGHT (8) American Indian/Alaska Native students attending!

As a professor at UCLA School of Law, I urge you to contact Dean Varat . . . and ask him to make it a priority at UCLA School of Law to recruit more Native American students.

Please understand, we are not asking the UCLA School of Law to lower its academic standards, we are simply asking them to increase their outreach into the Native American community.

Professor, we know that you understand and value a TRULY diverse student population. Given, the UCLA School of Law does have a "respectable" minority student population (28.2%). However, Native Americans only make up .8% (that's eight-tenths of one-percent) of the student population at the law school.

I note that the UCLA School of Law is not involved with the American Bar Association CLEO (Council on Legal Education) Program. As you might know, CLEO sponsors summer "boot camps" for minority and economically disadvantaged students to help prepare them for the rigors of law school. This might be an avenue for the UCLA School of Law to actively recruit Native American students.

Again, please accept this e-mail in the spirit that it is intended --- positive encouragement. We look forward to hearing from you.


Billie Black Crow Sarber
Native American Education Alliance
So here's my question: According to the Census, 0.8% of the over-18 population calls itself non-Hispanic American Indian. (Another 0.7% calls itself Hispanic American Indian, but I take it that these are people whom UCLA would probably count as simple "Hispanic," since very many Hispanics have some American Indian blood.) Even if I thought that there was something inherently wrong about racially disproportionate representation, or if I thought that such disproportionate representation was strong evidence of discrimination (which I don't), why should the numbers here bother me, or cause me to urge the school to change its priorities?

     Also, why would I guess that 50 out of 951 UCLA law students were American Indians? And if I did, would I be condemned as a racist, given that some people have argued that when white people grossly overestimate the fraction of the population who are non-white, that's evidence of racism?

     (I realize that the definition of who is and who is not an American Indian is quite ambiguous -- as I mentioned, for instance, most Hispanics are part American Indian, as are many whites who generally call themselves white despite their partial American Indian blood -- but the e-mail said nothing to suggest that the 8 students who called themselves American Indian / Alaska Native were using some broader definition than the one given by the Census.)


UNCERTAINTY & NPR: This morning on NPR, a news report referred to "terrorist suspect" Osama bin Laden. That's fine. I don't believe there's much uncertainty about bin Laden's complicity in terrorist acts, but perhaps some journalists believe that they have an obligation to err on the side of not using more definitive characterizations absent greater proof, such as a legal conviction or the like. So bin Laden is a "suspect" until "proven" guilty.

In the same news update, NPR characterized plaintiffs in asbestos class action cases as "people who have become ill from asbestos." Shouldn't NPR have said "people who claim to have become ill from asbestos" or "people who have allegedly become ill from asbestos"? After all, there's less proof that all those suing asbestos manufacturers "became ill" from asbestos than there is connecting bin Laden to terrorism. Indeed, bin Laden didn't dispute his guilt -- he celebrated it -- whereas asbestos companies certainy dispute whether each and every class action plaintiff actually got sick from their products. (Indeed, much of the controversy these days is whether people exposed to asbestos can sue even before they get sick.)


A SHORTER VERSION OF MY SLIPPERY SLOPES PIECE: If any of you might be interested in reading my Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003), but are daunted by its 109-page length, you might try an edited-down version that I just came up with, a mere 54 pages long. Still too long for most, I realize, but perhaps a bit better than the original.

     Also, I was hoping that some think-tank or other policy organizations might be interested in redistributing this shorter version. Slippery slope arguments, after all, are a mainstay of public debate, and are made by liberals, conservatives, and libertarians alike. I'd like to get these ideas out there, and while the long version is published in the law review and a 2000-word essay will be published in Legal Affairs in April, I thought there might also be room for the intermediate version. If you think your organization might be interested in reprinting or otherwise redistributing the piece -- or even just linking to it from some e-publication of yours -- please let me know. Thanks!


HAPPY BIRTHDAY! Today's the birthday of Abraham Lincoln, Charles Darwin (and, as it happens, my son Sam). Are there two individuals from the 19th century who had more of an effect on human history (however one might choose to assess that) than Lincoln and Darwin? Can't think of any offhand (Marx and . . . ?). Or two individuals from any century who had more of an effect on human history and share a birthday?


ALL ESTRADA, ALL THE TIME: That could be the U.S. Senate for the next several days as the majority the Senate Democratic caucus mount a filibuster to prevent confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Were there to be a vote on Estrada, he would receive at least 54 votes, including three Democrats. NRO's Byron York reports on the details -- and highlights the shallowness of the stated reasons for the filibuster. Opposition to Estrada is not driven by a need for "more information" -- only two of the ten Democratic Senators on the Senate Judiciary Committee bothered to submit written follow-up questions to Estrada after the hearing. Rather, Estrada's opponents are afraid he is a "Hispanic Clarence Thomas" (as some of his opponents have referred to him) and could be bound for the Supreme Court. Apparently his opponents believe it will be easier to mount an unprecedented filibuster against a lower court nominee than it would be to block Estrada if he were to become the first Hispanic nominee to the Supreme Court. That political calculus doesn't seem right to me, but I'm no politician. For regular updates on the nomination fight, check How Appealing early and often.

CYNICAL POLITICAL TIDBIT: Rumor has it the Bush Administration plans to nominate several more Hispanics to the federal bench, perhaps as early as this week. If so, expect the Administration's allies to note Bush's high percentage of Hispanic judicial nominees.

Tuesday, February 11, 2003


POEM FROM TODAY'S SLATE: I was quite struck by the second stanza from today's Slate poem ("Zeno at Zero," by Mary Kinsey). I'm not sure I understand whom this is referring to, if it is referring to anyone, and the first stanza (which struck me as quite a bit different lyrically, and which I didn't like as much) didn't help me. Still, this stanza really worked for me:
He had no life to speak of, no career
After the first depressions, waiting out
The world's compulsive exercise of skill
And constant, low-pitched bragging. His one fear,
That he would seem a supplicant. No doubt
He lasted as he did by rage of will.


SLATE ON THE SUN: Slate's Chatterbox (Timothy Noah) rightly castigates the New York Sun's editorial that called for suppression of antiwar speech; and he also faults the Sun's follow-up editorial for trying to recharacterize the Sun's earlier stance. But he also says the following:
In sum, the Sun was saying that the only way to defend free speech is to suppress it. The vileness of this argument was noted by Joe Conason in Salon; its illogic by Brendan Nyhan in Spinsanity; and its faulty grasp of the law by Eugene Volokh in National Review Online. (Incidentally, National Review Online is thus far the only conservative publication to raise a peep about the Sun editorial.)
I'm not positive how many liberal publications raised peeps about the Sun editorial, either, but I think the Chatterbox point is important: When there are right-wing-sounding calls for restricting speech coming, the moderate left, the center, and even some on the right properly ask -- are the supposed conservative defenders of free speech speaking up against the proposed restrictions, or are they laying low? We on the right, of course, ask the same of the supposed liberal defenders of free speech when free speech is attacked from the left; they are quite right to ask this of us.

     That's why I'm particularly happy, as I mentioned in my earlier post, that the National Review Online ran my piece on the subject. If the Right wants to be credible when criticizing the Left's censorship attempts (or the Left's calls for race preferences and the like), it needs to condemn the similar excesses of those on its own side.


REVISITING THE D.C. CIRCUIT: The U.S. Court of Appeals for the D.C. Circuit is arguably the most important federal appellate court for reasons I explained yesterday here. I stand by the post, but I do feel a slight clarification is in order. I did not mean to suggest that D.C. Circuit has a magical power that turns all of its judgments into the law of the land nationwide. Rather, when federal regulations are successfully challenged in the D.C. Circuit, the court will impose a nationwide injunction on the enforcement of regulation even in those cases in which the D.C. Circuit does not have exclusive jurisdiction. (See here -- it's at the end of the opinion.) This stands in contrast to the other Circuit courts, which will typically only enjoin enforcement of the regulation in question within the Circuit. Of course, as I also noted, the D.C. Circuit does have exclusive jurisdiction in a wide range of regulatory matters that result in a disproportionate impact on many policy questions and the development of administrative law. (Chris Mooney also has more to say about the D.C. Circuit here.)

There is a counter-argument, suggested by some, that goes like this: The D.C. Circuit’s decisions in many cases only affect people living within D.C., and that’s very few people. Thus, the D.C. Circuit is less important than, say, the Ninth Circuit because of the millions of people that live within that jurisdiction. I think this argument is correct for certain types of cases, such as private law diversity cases or employment discrimination suits. But in terms of overall effect on government policy, I believe that D.C. Circuit casts a longer shadow for the reasons I mentioned before.

As for what accounts for the low Supreme Court review rate of the D.C. Circuit, two possibilities I mentioned before are the D.C. Circuit’s wonky (read: very technical, administrative law-dominated) caseload, or a relative lack of far out opinions. A third possibility came to mind in thinking about the similarities between the D.C. Circuit and the U.S. Court of Appeals for the Federal Circuit. Both circuits dominate their respective fields – administrative law and patent law – due to their respective jurisdictions. As a result, there are relatively few Circuit splits between one of these two Circuits and the regional Circuits. As a result, there are fewer D.C. and Federal Circuit opinions that are “obvious” candidates for Supreme Court review. I don’t think that this is the whole story, but I suspect it is a factor.

Speaking of the Federal Circuit, several patent law partisans wrote in to remind me that the Federal Circuit’s patent law decisions have nationwide application as a matter of course if, for no other reason, than the Federal Circuit has exclusive jurisdiction over patent cases (barring patent claims brought as counterclaims, or so I am told). This is also the case for the other matters for which the Federal Circuit has exclusive jurisdiction (e.g. takings claims, etc.). This makes the Federal Circuit quite a unique beast, but it does not, in my mind, make the Federal Circuit more important to public policy than the D.C. Circuit.

Finally, one reader notes that one reason for the “second most important court” label is that D.C. Circuit nominations are not encumbered by the same sort of political considerations, such as the preferences of a home state Senator, as are regional Circuit nominations. As a result, D.C. Circuit nominees represent a disproportionate share of legal “superstars” on the bench. This is a fair point – and one that makes sense if one looks at many of the D.C. Circuit’s past, present, and potential future inhabitants.


CRITICISM OF CATO CIGARETTE TAX REPORT: An anonymous but apparently knowledgeable reader writes the following, responding to the Cato report linked to by my "Cigarette Taxes Causing Crime?" post; as I've said before, I'm not expert enough on the subject to have an informed opinion, but it seemed worth passing along:
The report has three main failings. First, it is significantly outdated, in that almost all (if not all) of the anecdotal support for its thesis is several decades old: While it does document a decline in tax-paid sales after the most recent tax increases, it puts forward nothing to suggest a link to criminal activity.

That brings me to the second failing, which is ignoring the effect of internet commerce. Whatever criminal and smuggling actvity took place in the past, shouldn't one consider whether today consumers who want to avoid state excise taxes simply order their cigarettes via the internet? A thriving internet cigarette market may cause some to question the efficacy of state excise tax increases, but it also may rebut the assertion that those increases lead to criminal activity.

Finally, there is pretty good body of academic research establishing that the effect of price increases -- which are necessitated by excise tax increases -- is to significantly decrease the number of adoloescents who take up smoking. It should come as no surprise that the market for cigarettes, like all markets, is elastic and that cigarette consumers, like all consumers, are price sensitive. Minors, with relatively ittle discretionary income, are more price sensitive than others. Frank Chaloupka, who is an economist at the University of Illinois at Chicago, has written extensively on this topic, as has Professor Gruber of M.I.T. The CATO report casually dismisses the public health claims that accompany excise tax increases without confronting the documented decreases in youth smoking that follow from those increases.

By the way, New York attempted to ban the direct shipment (via internet, mail or phone orders) and delivery of cigarettes to consumers, but that law was struck down on commerce clause grounds in 2001 (The decision, in Santa Fe Natural Tobacco v. Spitzer (SDNY, June 7, 2002) contains a pretty decent discussion of the price elasticity data.)
Oh, and here's a message taking a different perspective, from reader Gerald Dearing:
I can't prove that taxes are the cause. But as a truck driver, I can testify that cigarette loads are the number one highjacked load in this nation. We pick up from gated, locked, guarded facilities. Go through identity verification and security inspections more stringent than checks at military bases or the mint. We watch for cars following us out of the shipping facilities. We are satellite monitored, and report our trip plan and stops. In Los Angeles, my carrier maintains a secure, fenced terminal. We are required to have a police escort for the three mile trip from our terminal to the consignee. And we still have loads evaporate.

Cigarettes are high value and easily disposed of. We haul loads of higher value (computers, electronics) but none is as highjacked as frequently as cigarettes.

Can't blame it all on taxes. But higher taxes increase the street value and increase the demand.


JANES ADDITION: Besides the blogger RSS feed, available on the upper left-hand side of the screen, we've just added a feed produced by David Janes' RSS scraper. It looks like it'll be more reliable than the blogger-produced version; you can test it here, using SOAPClient. Thanks again to David Janes for providing this and other excellent free blog-handling tools.


OFFENSE: According to this Washington Post story,
The political correctness police have Vanity Fair on the run.

Among [Vanity Fair's] regular features is an advice column purportedly written by Dame Edna, the outrageous dowager played onstage by Australian comedian Barry Humphries. In the February issue, a reader asked if he should learn Spanish.

"Forget Spanish," the Dame replied. "There's nothing in that language worth reading except Don Quixote, and a quick listen to the CD of 'Man of La Mancha' will take care of that. . . . Who speaks it that you are really desperate to talk to? The help? Your leaf blower? Study French or German, where there are at least a few books worth reading, or, if you're an American, try English."

That little joke sparked a firestorm of e-mailed protests from Hispanics, including Mexican actress Salma Hayek, who appeared on the cover of the issue...
All I have to say is: if Edna is too much for American sensibilities, then Humphries had better never try to introduce us to Les Patterson. If you don't already know, don't ask...


OSCARS, CONTINUED: According to USA Today,both Charlie and Donald Kaufman have been nominated for the "Best Adapted Screenplay" award for the film Adaptation. Pretty funny, no? "Donald Kaufman," as I understand it, is a fictional character, invented by Charlie K. as part of the whole post-modernist ploy in the movie (life imitating art imitating life etc. etc); is this a true first in Oscar history, or just a mistake by USA Today?


REJECTED: Edsel David Barnes, Jr., also known as Wildman v. William J. Clinton et al., 2003 WL 245329 (6th Cir. Jan. 31), involved Barnes' claim that "the following statement in Article VII of the Constitution: 'the Seventeenth Day of September in the Year of Our Lord one thousand seven hundred and Eighty Seven'" unconstitutionally "grants a title of nobility to, respects, and is based on the establishment of the Christian religion." Barnes sought an injunction "directing the defendants to cease and desist from imposing the current dating system on him and directing them to adopt a new dating system for the United States of America."

     The district court rejected the claim on the merits, and the court of appeals rejected the appeal on procedural grounds too boring to mention here.


KRUGMAN: Those who've picked up the habit of skipping Krugman's column (I often skip it myself, if I read the first paragraph and get that feeling that blends deja vu with boredom): read today's anyway. There's an important degree of truth in it.

UPDATE: Perhaps unsurprisingly, I've gotten a bunch of e-mails that say "What? Where?"
First of all, Krugman's clearly right that endless little betrayals of those who are, or would like to be, or might be our friends does damage to our credibility. I'm not talking about Kyoto or the ICC, about which we're willing to stand up in public and offer our reasons, and which we never pretended we were going to support. The Pakistan-textiles switch is far from the only example. Think about the abandonment of the relationship with Mexico; the undermining of Latin American democrats with the flip-flop endorsement of the anti-Chavez coup; the farm bill; the steel tariffs; the lumber war with Canada; the support-and-rejection cycles with India and Israel... (See also Dan Drezner's essay on administration arrogance in interacting with allies-- again, not about Kyoto etc. but about needless stylistic offensiveness.)

Second, while things in Afghanistan aren't as dire as is often suggested, the U.S. is certainly missing out on a big, obvious opportunity. A greater, more serious, more thoughtful commitment to institution-building and support in Afghanistan would've bought us a wholenlot of credibility over the postwar reconstruction of Iraq.

Third, the budget. As Andrew Sullivan has been stressing this week, and as I've posted a few times, the administration seems unwilling to prioritize at all. Is it worth liberating Iraq? Yes. But mightn't one then think that it's important enough to take priority over some of the other profligate spending in the budget? Krugman of course would say "take priority over the tax cut." But there's something true even there-- though I support the tax cut. If the tax cut is important, then isn't it important enough to warrant some decisions about spending? Instead, the budget takes the everything-plus-two-kitchen-sinks approach. This is the worst kind of budgeting. Whether you care about seeing the Iraq war and reconstruction through (Sullivan), having enough money for health care reform (Kaus), being able to seriously cut taxes and to reform Social Security (me), making the next-generation leap in military technology (Bush 2000), or any other big project that is important, you have reason to oppose the mindless growth of everything in general. I think Krugman's right that the administration's budget has cost it a great deal of credibility as a priority-setter.

(Note to everyone who wrote in and said, "nyah, nyah, Krugman was right all along, and now you're going to have to see it and admit it"-- no. Social Security reform and the tax cut were and are important, and were and are credible policies. And it wasn't the case that spending had to skyrocket on everything in general and nothing in particular.)


FREE TRADE: I've previously wondered aloud: How can the U.S. independently negotiate the FTAA, a free trade agreement with Australia, and the Doha round, when agricultural subsidies will be among the central issues for all three? We can't offer to repeal the budget-busting, global-inequality-exacerbating farm bill as a negotiating tactic three different times; but if the farm bill isn't on the table then neither Brazil nor Australia has much reason to treat us as negotiating very seriously.

Asked and answered: agricultural subsidies are off the table for FTAA talks, because they're non-tariff barriers. I'm willing to bit that this means they're off the table for Oz, too. This means that neither Brazil nor Australia has much incentive to negotiate an agreement before they see how the agriculture talks proceed in the Doha round-- which in turn means that Zoellick's strategy of using bilateral and regional agreements to push Doha forward isn't going to work.

Just yesterday, however, I thought of one argument for that strategy that Zoellick (understandably) doesn't mention in public. Every bilateral or multilateral agreement has the potential to undermine, and maybe eliminate, the uncompetitive American producers who stand in the way of the bigger agreements. Those producers will either become weaker and politically less important, or will become more competitive and therefore have less to fear from subsequent agreements. And the same would be true for the domestic politics of each of our trading partners. Maybe. But for this to work we'd actually have to be able to conclude the bilateral and regional agreements, and that's going to be hard to do without ever talking about agriculture.

UPDATE: See posts by Brad deLong and Matthew Yglesias.


DEFICITS CON'T Missing from this NYT piece about how conservatives stopped worrying and learned to love deficits: any mention of when this effect of deficits restraining spending is scheduled to kick in. The federal budget is in deficit already, boys and girls -- where's the predicted spending suppression?

(Related posts here, here, here, and here. For a quick overview of the spending problem, visit Cato. And for other interesting thoughts, read the comments on Brad deLong's link to this post...)


VOLUMINOUS: Yesterday the Conspiracy posted more than 7,000 words. Sheesh.


I'M FAMOUS! PR Watch, which "offers investigative reporting on the public relations industry" and "help[s] the public recognize manipulative and misleading PR practices by exposing the activities of secretive, little-known propaganda-for-hire firms that work to control political debates and public opinion," is talking about me!

One of their features is the Impropaganda Review, a "'rogues gallery' of industry front groups, anti-environmental think tanks, and other classic examples of deceptive public relations campaigns." It's only got six rogues, but one of them is my old haunt, the Competitive Enterprise Institute. (Another is my friends at the American Council on Science and Health.) The CEI write-up contains a list of "current or past CEI employees," which for some reason doesn't include my name. But later on down the page, when talking about CEI's work against tobacco regulation, it says:

The tobacco industry has been a regular funder of the Competitive Enterprise Institute, which in turn has gone to bat repeatedly and eagerly for tobacco in its battles with government agencies such as the Food and Drug Administration and the Environmental Protection Agency. Following the 1993 release of EPA's risk assessment linking secondhand cigarette smoke to lung cancer, CEI cranked out opinion articles for major newspapers with titles such as "A Smoking Gun Firing Blanks," "EPA's Bad Science Mars ETS Report," and "Safety Is a Relative Thing for Cars; Why Not for Cigarettes?"

CEI policy analyst Alexander Volokh went even further. "Perhaps, in the fine tradition of civil disobedience championed by Thoreau, we should even think of smoking as a civic duty," he wrote in the July 1994 issue of the CEI Update. "Perhaps," he continued, "every January 11th -- the anniversary of the Surgeon General's original 1964 report on smoking -- we should all light up, giving a filter-tipped finger, as it were, to a health-obsessed government." Volokh admitted that the government's efforts to discourage smoking "may further the cause of health," but concluded that "there are things more valuable than health."

That's from my article Lighten Up. One of the articles mentioned above, Safety Is a Relative Thing for Cars; Why Not for Cigarettes?, is also mine -- my very first published op-ed! -- and appeared in Advertising Age. I've got my tobacco articles on my website, but sadly, I haven't had time to put either of those up yet.

Thanks to Hanah for bringing my new fame to my attention.


OSCARS: Cranky kvetching about the nominations: Not only is it bizarre to deny Peter Jackson a directing nomination; it's bizarre to give LotR:TTT a best-picture nomination while doing so. I think that the Two Towers wasn't as good an overall film as Fellowship, but that the sheer astonishing directing accomplishment was more even more impressive. LotR didn't get a cinematography nomination, either, or even one for makeup or costumes. Weird. LotR won't win best picture this year; but Jackson and Return of the King will both win next year.

I'm glad John C. Reilly (who, before last year, I always thought of as "that really good character actor who looks like Colm Meaney [Star Trek's Chief O'Brien] but isn't") was nominated for something, but I think it should've been for the Good Girl. Susan Sarandon deserved a nomination for supporting actress for Igby Goes Down. For that matter, Clare Danes, Jeff Goldblum, and Amanda Peet all turned in first-rate performances there as well, and I think the screenplay was better than the nominated Far From Heaven's; I think Igby qualifies for this year's Almost Famous award for wonderful movies unfairly denied recognition, with Monsoon Wedding as as a runner-up. Summer and fall releases (Thirteen Conversations, Sunshine State, Good Girl, Monsoon, Igby...) were pretty thoroughly shut out of the nominations.

I haven't even heard of any of the foreign film nominees, which is unusual for me (see Slate's Explainer on the absence of Talk to Her and Y Tu Mama).

Blogospheric bete noir Bowling for Columbine got a best documentary nomination.

I love Julianne Moore; but I found Far From Heaven dreary and thought Moore's part gave her so little to work with that the performance was nothing special. Dennis Quaid, given a meatier part, made the most of it, but was ignored.

UPDATE: Dan Drezner has some pretty similar thoughts. Matthew Yglesias, too.


UPPER HOUSES CON'T: Michael Jennings replies to my two posts about upper houses and the Australian Senate here and here, with plenty of interesting information. (The original posts are here, on upper houses, and here, on the Australian Senate's purported vote of no confidence in John Howard.) I'll be updating later on with some comments, and some thoughts about bicameralism in state legislatures-- prompted by what Michael had to say about bicameralism in the Australian states, much of which was new to me.

One embarassing correction, which I at least noticed myself rather than waiting for the inevitable mocking e-mails. I referred to the German upper house as the Landsraad rather than the Bundesrat. The house represents the German states, y'see, and a German state is a Land. From there, my neurons blooped and grabbed information, not from the poli sci corner of my brain, but from the SF geek corner. The Landsraad is the aristocratic pseudoparliament in Dune. It's been corrected in the original post, but I thought I'd 'fess up...


SPEAKING OF BLAIR... Back in the 1990s it was easy to regard Bill Clinton and Tony Blair as a pair; they were youngish, friendly with each other, and politically similar in a broad sort of way. It therefore was easy to assume that Blair also was callow in something like the same way Clinton was, if perhaps not quite to the same extent (let's not get carried away). But the recent months have made clear that Blair is a different animal. The account Eugene flags below (this one) illustrates the continuing and deepening political troubles Blair is enduring because of his position on Iraq. It is difficult to imagine Bill Clinton holding to a position on anything in the face of this sort of polling. I'd like to think that George Bush would, but he has not yet been tested in the same way. Just another remarkable feature of the most complicated diplomatic situation in decades.


COLOR-CONSCIOUS: Lawblogger extraordinaire Howard Bashman criticizes my palette. Heh.

Monday, February 10, 2003


TONY BLAIR SEEMS TO BE IN POLITICAL TROUBLE OVER HIS IRAQ STANCE: I haven't had a chance to read the survey on which this article reports -- I hope to do so soon -- but if it's true, then Blair seems to be in big trouble. At the same time, while England's abandoning the coalition (which of course might not happen, even given the polls) might make the war harder for us, I don't see how it can affect our bottom line. What struck me most was this line from the story:
Nearly nine out of ten voters think the UN weapons inspectors should be given more time to establish whether Iraq is hiding weapons of mass destruction, as France, Germany and Russia have urged. Meanwhile, just a third think that Britain and America have so far put forward a convincing case for military action against Iraq.
"Whether Iraq is hiding weapons of mass destruction" -- is there really a credible debate remaining about that? And if this isn't a convincing case as to military action, then we have to accept more than just Iraq's possessing and further developing weapons of mass destruction; we (or, to be precise, those of us who haven't already come to this conclusion) have to accept that the U.N. is a useless organization that is unable to enforce its own mandates. I hope British public opinion is not being accurately reported here. But if it is, then just reflects the errors of the British public, not the errors of a hawkish policy.


In the last 10 days, United Nations inspectors have been given what are described as "important, new and credible leads" from a recent defector, who also told ABCNEWS that Iraqi scientists involved in the nuclear, chemical and biological weapons program were systematically intimidated.

The defector, interviewed by ABCNEWS in an undisclosed European country, is an engineer described as close to several of the weapons scientists who, he said, live in fear.
Many of the scientists are eager to cooperate with the United Nations, but the intimidation is so effective that the scientists are terrified of meeting in private with the inspectors. One scientist who met with the inspectors this week was so frightened, it took an hour for him to stop shaking, according to U.N. sources.

"Iraqi scientists and researchers are under a lot of pressure and influence by the Iraqi authorities," the Iraqi defector told ABCNEWS. "They were scared and threatened in different ways, including threatening to go after their families if they leave Iraq to meet with inspectors and going after their relatives if their families go with them and going after them even if they were in exile.

"For these reasons, the scientist or researcher becomes scared to tell the secrets, even though he knows it's a way to lift the difficult, miserable conditions the Iraqi people are living under."
     On one level, well, duh.

     On another, isn't this just another reminder that the "send in more inspectors" proposals are just pointless? The inspectors will try to interview more scientists; the scientists will say no. The inspectors will try to interview them outside the country; Hussein will threaten a horrible death to their families and friends. And so it will go, just like it's gone until now.

     The U.N. and, if it goes along, the U.S. will be seen as increasingly, almost laughably ineffectual -- never a good reputation to acquire in a dangerous world. The "Arab street" will continue to be outraged by continuing sanctions (to the extent that the "Arab street" is indeed outraged by things, something that the experience with the Afghan war puts in doubt). The bill for the military buildup and the continued military preparedness will mount (after all, if we are trying to "pressure" Iraq to comply, we have to have a realistic threat with which to back up the pressure). Weather conditions, as I understand it, will deteriorate. Depending on the pace of Hussein's development, he'll get more and more weapons of mass destruction. And all for nothing, because Hussein often says he'll comply, but never actually complies. What exactly is the point?


CIGARETTE TAXES CAUSING CRIME? A Cato Institute study says yes. I haven't looked at this closely, and I'm in any event not expert enough on the field, but it seems like an interesting claim:
Smalltime crooks and organized
crime have engaged in murder, kidnapping, and armed robbery to earn and protect their illicit profits. Such crime has exposed average citizens, such as truck drivers and retail store clerks, to violence.


ALMOST NO KNOWLEDGE: Here's what a local newspaper says the publisher of The New York Times said at a talk at Kansas University:
[Sulzberger o]n how the Internet is like Speaker's Corner in London: "There's all these guys ranting on their soapboxes. How much knowledge is passed out on a given day? Almost none."
So I was ready to make some snide remarks about this, and then I realized -- why should I have any confidence whatsoever that the statement is in fact correctly quoted, and quoted in context? I e-mailed the publisher's office asking them whether they can confirm the quote, but I don't expect an answer, and for good reason: Obviously the publisher of the New York Times can't take the time to respond to every correspondent who wants to check this sort of quote, and his assistants can't just respond for him, since they weren't there and don't know what's said (I highly doubt that his talk was scripted).

     Yuck. Once you drink from the well of skepticism, no newspaper account will ever taste as sweet. Or some metaphor to that effect.


A QUESTION FOR ALL CURRENT LAW REVIEW EDITORS: Does your journal accept electronic submissions -- and, if it does, are there any glitches or serious delays in the process that would lead you to recommend that people not submit electronically? Please e-mail me at volokh at and let me know; I will keep both your name and the journal's name confidential.

     I'm trying to figure out whether to recommend, in my forthcoming Academic Legal Writing book, that students send their manuscripts by postal mail (my current suggestion), or whether I should encourage students to save time, money, and effort by submit the manuscripts by e-mail. Thanks very much.


SLATE'S TIMOTHY NOAH ON THE "MORE INSPECTIONS" PLAN: Slate's Timothy Noah (Chatterbox) -- a self-described reluctant convert to the pro-war cause (the Powell speech did it for him), puts it well:
Among anti-war types, there's been a lot of talk since Powell's speech about steps Iraq might take to prevent war. We should get them to allow surveillance flights, we should get them to provide greater access to weapons scientists, etc. None of these steps would be meaningful now that we know Saddam has chemical and biological weapons. There's nothing left for the U.N. inspectors to do, except perhaps buy a little time to allow the Bushies to win over the Security Council holdouts. The only card Saddam has left to play is exile for himself and his family. Barring that, Chatterbox sees no alternative to war.


THE FRENCH PROPOSAL: Tom Friedman in the New York Times puts it well:
The French position is utterly incoherent. The inspections have not worked yet, says Mr. de Villepin, because Saddam has not fully cooperated, and, therefore, we should triple the number of inspectors. But the inspections have failed not because of a shortage of inspectors. They have failed because of a shortage of compliance on Saddam's part, as the French know.
(Thanks to Andrew Sullivan for the pointer.)


EXPLAINING THE D.C. CIRCUIT: Is the U.S. Court of Appeals for the D.C. Circuit the second most important and powerful federal court in the land? Or is it just another run-of-the-mill federal court? This is the debate in the background of arguments over whether or not Democratic Senators should give President Bush’s appellate judicial nominations added scrutiny. On one side are critics of Bush’s judicial picks and commentators like Chris Mooney who argue that conservative control of the D.C. Circuit will have a profound impact. On the other are those who dismiss the importance of lower court nominations generally or, in the case of Slate’s “explainer” column, dismiss the importance of the D.C. Circuit. Who’s right?

On the one hand, it is easy to overstate the importance of federal appellate judicial nominations. The various federal appellate courts – the eleven numbered circuits, the D.C. Circuit, and the Federal Circuit – are all required to follow and apply relevant Supreme Court and circuit precedent. As a result, the outcome in the vast majority of cases is rather clear and non-controversial. Most appellate decisions are unanimous. Even where judges disagree, it is not always due to ideology. In some cases, different judges will simply see the facts differently. As Howard Bashman argued here, the obsessive focus on judicial ideology on the appellate level is misplaced. While I may think Bashman overstates his case a wee bit, he is correct that judicial ideology only comes into play in a small set of cases on the federal appellate courts. (The Supreme Court, however, may well be a special beast.)

Be that as it may, is it fair to argue that there’s nothing special about the D.C. Circuit? I don’t think so. The D.C. Circuit is a special court – but not for the reasons mentioned (and debunked) by Slate’s explainer. The reasons the explainer identifies are 1) “it has a prestigious alumni association”; 2) “the court’s wonky caseload”; and 3) “it's located in the nation's capital, where a huge number of federal agencies are based, the D.C. Circuit's docket is heavy on administrative appeals.” The explainer makes short shrift of these arguments, but that’s because none of them are the real reason the D.C. Circuit is so important. Simply put, the D.C. Circuit is the second most powerful court in the country because its decisions have the second greatest impact of any court’s in the country – at least with regard to federal law.

First, the D.C. Circuit has exclusive jurisdiction over many challenges to agency actions of nationwide application. So while an environmental group could challenge the details of a state implementation plan in a federal court within that state, if a group wishes to challenge the National Ambient Air Quality Standards or another nationwide regulation under the Clean Air Act, they can only file that challenge in the D.C. Circuit. In other words, the administrative appeals heard by the regional circuits are, on the whole, small individualized cases of a narrow scope, whereas many of those heard in the D.C. Circuit are quite a big deal. (Think major EPA, FCC, or FERC rules.)

Second, because the D.C. Circuit is in the nation’s capital, even where it does not have exclusive jurisdiction to hear cases challenging specific regulations, the D.C. Circuit remains the only federal appellate court the judgments of which will have nationwide application. Take this example (based upon a real case): Say a developer is prosecuted by the U.S. Army Corps of Engineers for illegally filling a wetland without a permit. The developer defends himself by claiming that the relevant regulation is itself illegal, having been issued without giving the required notice and comment. If the case is heard in a regional circuit, and the developer wins, the decision will only impact subsequent enforcement actions and court decisions within that circuit. Unless the case is eventually heard by the Supreme Court, the Army Corps will be free to continue to enforce the improper regulation in the rest of the country, unless and until other Circuits reach the same conclusion. If, on the other hand, the developer’s trade association challenges the regulation in the D.C. Circuit, and wins, the regulation is kaput nationwide. Slate’s explainer might not think this matters much, but I’d say that’s one heck of a difference.

The explainer also suggests that we should care less about the D.C. Circuit because so few of its cases end up before the Supreme Court. For reasons Chris Mooney explains on his blog, I think explainer may have this backwards. The less an appellate court’s decisions are reviewed, the more its decisions are “final.” This, in turn, may suggest that appointments to the appellate court are that much more important. Indeed, given the technical complexity of many cases on the D.C. Circuit’s docket – no other court has to plow through hundreds of pages of EPA rulemaking on whether marginal increases in ozone (“smog”) may shield UV-B radiation – the Supreme Court may be reluctant to review decisions that do not create conflicts with other circuits or raise other novel legal issues.

One other possibility, of course, is that the court in question is rarely reviewed by the Supreme Court because it rarely invents new legal doctrines or strays too far from the reservation, so there is less to review. That is to say, perhaps the Supreme Court rarely reviews the D.C. Circuit – as opposed to, say, the Ninth Circuit – because the Supreme Court has little reason to think that the D.C. Circuit is getting cases wrong. This is certainly another possibility – and one which might undermine Mooney’s fears about the restoration of a 6-4, Republican-Democrat split on the court. (And, it might also suggest that insofar as judicial nominations make other circuits more like the D.C. Circuit, that would be a good thing - irrespective of the political affiliation of the judges in question).

In sum, it may be that some overestimate the importance of appellate court nominations. Nonetheless, it is fair to think of the D.C. Circuit is the first among equals. Insofar as appellate judicial nominations matter, all else equal they may matter most on the D.C. Circuit.

UPDATE: I have an update and clarification here.


"WAR OF THE WEB ROSES": Slate seems to have a helpful column comparing various Web-based flower delivery services.


HELP ME! I'm wondering if I might again ask some of our readers for some free computer consulting -- our VOLOKH-L distribution list appears to work well for our subscribers (about 45 right now), but just a few days ago it started sending us bloggers several copies of the following error message pretty much every time a post was distributed:
Your message is being returned to you unprocessed because it appears to have already been distributed to the VOLOKH-L list. That is, a message with identical text (but possibly with different mail headers) has been posted to the list recently, either by you or by someone else. If you have a good reason to resend this message to the list (for instance because you have been notified of a hardware failure with loss of data), please alter the text of the message in some way and resend it to the list. Note that altering the "Subject:" line or adding blank lines at the top or bottom of the message is not sufficient; you should instead add a sentence or two at the top explaining why you are resending the message, so that the other subscribers understand why they are getting two copies of the same message.

------------------------ Rejected message (16 lines) --------------------------
Received: from ( [])
by (8.9.1a/8.9.1) with ESMTP id PAA08665
for ; Mon, 10 Feb 2003 15:26:01 -0800 (PST)
Received: from AspEmail ([])
by (8.11.6/8.11.6) with SMTP id h1ANEG411206
for ; Mon, 10 Feb 2003 15:14:16 -0800
Message-Id: <>
From: "Eugene Volokh"
Subject: [The Volokh Conspiracy] GUIDELINES ON PRAYER IN SCHOOLS:
Date: Mon, 10 Feb 2003 15:27:19 -0800
MIME-Version: 1.0
Content-Type: text/html

[Text of the post follows]
And, yes, all such messages that I've seen seem to be routed via, though none of the subcribers seem to have that as their host name. Any thoughts on this? Thanks in advance.


WHY THE PROPOSED CRIME OF 'UNLAWFUL USE OF ENCRYPTION' IS ALL BARK AND NO BITE: Section 404 of the new DOJ anti-terrorism proposal has a section creating a new federal crime, "unlawful use of encryption." Here’s the proposed law:
Sec. 2801. Unlawful use of encryption
(a) Any person who, during the commission of a felony under Federal law, knowingly and willfully encrypts any incriminating communication or information relating to that felony -- n, shall be imprisoned not more than 10 years, fined under this title, or both.
(b) The terms 'encrypt' and 'encryption' refer to the scrambling (and descrambling) of wire communications, electronic communications, or electronically stored information, using mathematical formulas or algorithms in order to preserve the confidentiality, integrity, or authenticity of, and prevent unauthorized recipients from accessing or altering, such communications or information.
     DOJ argues that this crime is "warranted to deter the use of encryption technology to conceal criminal activity." Civil libertarians worry that it will just thump pretty much every computer criminal with an extra five years in prison. As Declan McCullagh argues:
  When encryption eventually becomes glued into just about every technology we use, from secure Web browsing to encrypted hard drives, the DSEA would have the effect of boosting maximum prison terms for every serious crime by five years. It'll be no different--and no more logical--than a law that says "breathing air while committing a crime" is its own offense.
     I think both sides are a bit off here. DOJ is optimistic about the likely good of this proposal, and Declan overstates the harm considerably. If passed into law, this new crime would make little difference: it would be charged only rarely, and any rational criminal would go ahead and use encryption anyway. (Which reminds me: if you are thinking of committing a crime sometime soon, please do not read this post. There's nothing here for you, really. Thanks for understanding.)

    Why wouldn't this law make much of a difference? Let’s start by co sidering how law enforcement discovers uses of encryption in criminal cases. The FBI gets legal authority to conduct surveillance of a suspect in a particular case, and when they get the information, they find out it is encrypted. What to do? Decrypting the information by brute force is essentially impossible, so the FBI will either a) find the key that will allow them to decrypt the information, or b) never be able to decrypt the information and will try to crack the case in another way. If the FBI cannot find the key, the defendant will never be charged under the "unlawful use of encryption" statute because the government will lack proof: if the government can't decrypt a file, it cannot prove that the file is "incriminating" and that the information it contains "relat[es]'" to another felony the defendant is committing. The government can only bring the charge if they have successfully decrypted the communication, which to my knowledge has happened in only two cases (including the famous Scarfo case). This means that a smart criminal will use encryption anyway: encryption lowers a defendant's chances of getting caught considerably, and the difficulty of finding keys means that on balance it's still a smart move.

    But what if the government succeeds in decrypting a defendant's files, and finds out that a defendant was in fact encrypting incriminating information relating to a felony? Won't the government be able to add an extra five years in the slammer to that defendant's sentence? It's quite unlikely. First, the proposed statute requires that the government show that the defendant encrypted the incriminating communication willfully. This means that the government must show not only that the defendant knew that he was concealing the information, but that he knew that it was illegal to encrypt the communication. Proving this would require a smoking gun: the government would have to show that the defendant knew about the law, and also knew he was violating the law when he used encryption. But criminal defendants have a constitutional right not to testify, which means that the government would have to prove based on the context that the defendant must have known that his use of encryption was criminal. Given that the law only applies to the use of encryption to further federal (not state) crimes that are felonies (not misdemeanors), this would be nearly impossible in most cases.

    But let's say a defendant sent an e-mail to the FBI when he encrypted his files, saying "Dear Mr. FBI Agent, I am hereby encrypting files in furtherance of a federal felony offense, and I realize it is a crime." In that case, the government would be able to prove the defendant encrypted his communications willfully. Wouldn't it add five years to a defendant's sentence then? Not necessarily. The trick is that the “five year” penalty for this proposed crime is only a theoretical maximum penalty: the actual sentence would be imposed under the federal Sentencing Guidelines. (This is true for all federal crimes, actually, and means that you need to be skeptical when you read about people being arrested and facing zillions of years in prison. It’s not uncommon for a defendant to be arrested on 10 felony counts each with a maximum of 10 years in prison, and for the defendant to plead guilty and get a sentence of 6 months in prison or even just probation).

     The real question of how the proposed law would impact criminal sentences depends upon how it would be treated under the Sentencing Guidelines. There are no guidelines for this crime, of course (this just being a proposed law, not an actual one), so the effect of a conviction under the proposed crime is a matter of speculation. But it’s worth noting that the most common approach to grouping related offenses under the guidelines is for the most serious offense to control the sentence. So if I go on a cr me spree and commit one serious federal offense along with three minor federal offenses, the offenses will normally be “grouped” and only the most serious offense will actually determine the sentence. Why does this matter? It matters because the proposed crime is by its nature a dependent crime: a defendant would be guilty of unlawful use of encryption only if he was also guilty of another federal felony crime, and the government could prove that. As a result, if the independent crime is the more serious crime under the guidelines, a conviction for unlawful use of encryption could have no effect whatsoever.

     If the law would have so little effect, you may be wondering, why would DOJ propose it in the first place? One reason is that more people are likely to read Declan’s column than this post. If people think that the law will send them to jail for an extra five years for using encryption to further a crime, they might be deterred from using encryption to further a crime -- even though for subtle reasons it’s quite unlikely that the law would actually make any difference to their punishments if they were caught. I imagine that's the thinking, anyway.


WEBLOGS AND INEQUALITY, II: Clay Shirkey's very interesting essay on the highly asymmetrical distribution of links to various blogs (to which Eugene pointed to in an earlier post here) is worth looking at; these "power law" distributions are of fundamental importance (as we are just coming to understand these days);they are ubiquitous in the natural world, and appear to be generated by a kind of 'rich get richer' underlying dynamic: if, for instance, the probability that someone links to your webpage is a function of the number of people who have already linked to your webpage, the overall distribution of links will follow a power law. Several years ago I recall a lot of discussion about how a few big web portals -- Yahoo, AOL, Lycos, Netscape, and a few others -- were the recipients of a vastly disproportionate number of visitors, compared to a randomly selected webpage, and many people could be heard suggesting that this was the beginning of the much-dreaded "concentration" and agglomeration of internet services (and that we needed to intervene somehow to preserve "equality"). I took a look at some of the numbers, and the distribution of website visitors was almost identical to the distribution of city-sizes in the United States and across the globe -- the implication (as I saw it, anyway) being that we should be no more alarmed by this degree of concentration on the net than we are in realspace . . . .


NO CONFIDENCE: Speaking of the Australian Senate: last week it passed a motion of no confidence in Liberal Prime Minister John Howard for deploying troops to the Persian Gulf. I've blogged before about Howard: he's committed gross injustices in refugee policy and exploited them for electoral gain, and he's been on the wrong side of Aboriginal issues I care depely about; but he is also an extraordinarily faithful and reliable friend to the United States. His support, like the Australian alliance in general, is in my opinion underappreciated by Americans. And now, unlike Tony Blair, Howard has been formally institutionally rebuked for his commitment to the coalition against Saddam Hussein.

The motion received a flurry of coverage internationally (not, of course, in the U.S.). Much was made out of this being the first time in the 102-year history of the Australian Senate-- that is, the first time since the Australian constitution was written and the Australian federal government came into being-- that the Senate had done such a thing. Motions of censure have been passed, but not motions of no confidence.

But it seems likely to me that no one has ever done this before because no one thought that motions of no confidence were within the Senate's purview before. In a parliamentary system a motion of no confidence ordinarily means something-- it is the rejection of the ministerial government by the parliamentary body that elects it, or by the party caucus that controls that body. Upon a motion of no confidence, the government falls or the Prime Minister is replaced; new elections are held-- either a new general election for Parliament or a new party caucus election for Prime Minister. This is the pillar of "responsible government"-- that is, ministerial government that is responsible to Parliament (rather than, as in Restoration France, serving at the pleasure of the King and independent of Parliament's wishes).

In a bicameral parliamentary system, only one house elects the government. In every case I know of the "lower" or more popular house-- the House of Commons, the House of Representatives, etc. It's that house that passes motions of no confidence. I've never heard of a motion of no confidence even being introduced into the House of Lords or the Australian Senate or the Bundesrat; because "no confidence" from such a body is just venting. It lacks the constitutional significance of "no confidence" from the house to which government is responsible.

I can't quickly find much evidence one way or the other. I did find some tidbits. This discussion, and this proposed text from the days when Australia was considering fundamental constitutional reform to become a republic, went into some depth about the meaning of the House of Representative's power to vote no confidence. The Senate is never even mentioned. In this discussion, it's treated as obvious that the Senate should be kept away from "any questions of no confidence." As MP Price puts it, "standing orders and House practice codify what a vote of no confidence is; it is already there. If you remove the concept of the House as the sole arbiter of the approval or disapproval process, you then negate the accountability of a vote of no confidence."

Do any readers know more? Has any upper house in a parliamentary system ever done such a thing? Ever even tried to do such a thing? It seems to me like something between a violation of the separation between the two houses and emotive nonsense-- not quite as bad as the U.S. Senate purporting to pass a motion of impeachment before the House has acted but worse than the endless silliness of Sense of the Senate and National Goat Cheese Week resolutions. But I don't have an instinctive understanding of the constitutional norms governing parliamentary systems.

UPDATE: A source who, I am assured by one of my co-conspirators, is Usually Reliable, writes
re the Oz Senate's "vote of no confidence".
Essentially, they invented a form of rebuke that has no constitutional meaning, but sounds mighty fancy. As you noted, in the Westminster system a Prime Minister serves at the will of the House of Commons, the lower house, and only they can pass a motion of no confidence to any effect.

In Australia, in 1975, the Senate voted down a money bill, the upper house's equivalent of a vote of no confidence. The Governor-General, Sir John Kerr, then dismissed the Prime Minister, Gough Whitlam, and invited the Leader of the Opposition, Malcolm [Fraser], to form a government. Howard went on to win the subsequent election. Whitlam portrayed this at the time as essentially a question of who called Buckingham Palace first - had Whitlam managed to reach the Queen to fire Kerr before Kerr had reached the Queen to fire Whitlam, things would have been very different. [No] serious constitutional expert takes this argument seriously: what Kerr did was within his power, but, precisely because it was so controversial, no Governor-General would lightly think of going
nuclear again unless he absolutely had to. In this case, the viceregal authority will regard the Senate's vote as a bit of political posturing which it has both constitutional and practical reasons to pay absolutely no attention to.
Yep, the 1975 precedent was in my mind when I wrote the post. The Senate can, in extraordinary circumstances, trigger new elections (up to an including a double dissolution of both houses in their entirety, IIRC). But "no confidence" is not the rubric under which this is done. "[I]nvented a form of rebuke that has no constitutional meaning, but sounds mighty fancy" was my guess. The fact that this has never been done before in 102 years is therefore of no special interest; it shouldn't have been done this time. Words and concepts that are associated with moments of great constitutional importance shouldn't be thrown around in such a silly way.


WEBLOGS AND INEQUALITY: A persuasive and apparently scientifically sophisticated essay from Clay Shirky on blogs and social networks more generally; much worth reading. Thanks to InstaPundit for the pointer.


NEW SECOND AMENDMENT LAWSUIT CHALLENGING THE D.C. GUN BAN: Two people from the Cato Institute (though not the Institute itself) and a couple of other lawyers have filed a lawsuit challenging the D.C. gun ban on Second Amendment grounds. Here are the press release and the complaint.

     I think the plaintiffs should win; for the reasons I mention here, I believe the Second Amendment secures an individual right to keep and bear arms, and a near-total gun ban such as the one in D.C. (which prohibits the possession even of rifles and shotguns, unless they are unloaded and either locked or disassembled) surely violates that right. Whether the plaintiffs will win is, of course, a harder question.


NEW YORK MARCH: Phil Carter passes along the following AP story:
Citing safety concerns in "this time of heightened security," a federal judge Monday upheld the city's refusal to allow anti-war demonstrators to march past the United Nations on Saturday.

U.S. District Judge Barbara S. Jones said the demonstrators' First Amendment rights were not violated by the city's decision to confine the protest to a plaza near the U.N. complex.

"The city's restriction on marching is not a restriction on pure speech, but rather a restriction on the manner in which plaintiff may communicate its message," Jones wrote. . . .

Leslie Cagan, a leader of the [organizers], said the group will appeal. . . .

In her ruling, Jones noted that the United Nations was "uniquely sensitive among locations in New York City because of its function, our country's treaty obligations and its history as a terrorist target."

She said that since the Sept. 11, 2001, terrorist attack on the World Trade Center, the city has banned all demonstrations, parades or other public events in front of the United Nations.

"This policy is all inclusive, makes no reference to the content of the regulated speech and does not distinguish between event organizers or their views," she said.

Jones also agreed with the city's argument that the march is expected to be too large for the police department to secure the landmark.

Saying that police concerns about security threats were "far from theoretical," the judge noted that the United Nations was among five landmarks targeted by terrorists in a failed plot in 1993. A dozen men were convicted and sentenced to long prison terms.

Chris Dunn of the New York Civil Liberties Union had argued that the city was using "a theoretical possibility something terrible is going to happen to cancel the right of people to participate in peaceful protest."
As I mentioned before, it's often hard to tell just when these content-neutral speech restrictions (also known sometimes as "time, place, or manner" restrictions) are permissible; a lot depends on the particular factual details of each case. I'm therefore not sure how the court of appeals will rule, though I suspect that it will try to consider the matter promptly.


TOTAL FAILURE: A couple of weeks ago I blogged quite a bit about the Cynthia McKinney misquote. The first reference to the misquote was in David Horowitz's column, then in the Washington Times, The Hill, the Providence Journal and in some newspapers that reprinted that piece. Recall that McKinney was ridiculed for saying:
In no other country on the planet do so many people have so little as they do in this country.
But as this CSPAN video reveals, she actually said (at a bit past 1:31:20) (emphasis added),
In no other rich democracy on this planet do so many people have so little . . . .
While one can of course still disagree with the relevance of this statement, it is far more plausible than the obviously silly claim that she was quoted as saying. I have listened to the rest of the McKinney speech, and found no other place in which she says what people claim she said; I suppose it's conceivable that she got up some other time during the rally -- I didn't watch the entire thing -- and made the "no other country" statement, but I have no reason to believe this, and it seems quite implausible.

     Bothered by this, I e-mailed all the media outlets that reported on the McKinney statement, and all the bloggers that I saw reporting it. Several of the bloggers promptly took down the quote; not a single newspaper issued a correction. Only one journalist got back to me, saying that he was probably mistaken, and that he'd discuss the matter with his editors -- but there was no correction published. All my attempts to try to set the record straight were total failures, at least as far as the traditional media goes.

     Moreover, to my knowledge not a single other blogger, including those on the Left who might have been ideologically interested in pursuing the errors of the conservative media, picked up on this point. Perhaps they don't read this blog, though I have indeed had e-mails and links before from bloggers on the Left. Or perhaps so few people like McKinney that even the Left doesn't feel particularly interested in coming to her defense.

     Finally, one other obvious explanation would be that this is a pointless little item, and that I was foolishly exaggerating its importance and newsworthiness. Still, I don't think so: Here you have some substantial writers (the Washington Times piece was written by its editor-in-chief) apparently misquoting a noted political figure in a way that makes her look like she's a fool, and one who is willing to say ridiculously false and disparaging things about her own country. This was probably an innocent mistake, abetted by McKinney's reputation for actually saying things that are indeed foolish. But still, it's a mistake that wrongly tarnishes McKinney, and, by extension, her fellow speakers at the rally -- the quote was indeed generally used as an example of the supposed folly of the entire event. It seems that basic journalistic ethics would require that the mistake be promptly corrected; but it wasn't.


CONTENT-BASED AND CONTENT-NEUTRAL SPEECH RESTRICTIONS: My National Review Online op-ed last Friday and the accompanying blog post criticized the New York Sun for urging the suppression of antiwar speech precisely because of the content of that speech. As you recall, the Sun's argument was that antiwar speech might help our enemies (which may indeed be so), and that therefore it should be suppressed with steps up to and including treason prosecutions.

     The op-ed and the blog post did not, however, criticize the NYPD or of the City for denying a parade permit to the antiwar demonstrators. And there was a good reason for this: The City might well be within its power to limit such permits for reasons that are unrelated to the content of the speech, such as the possibility that the parade would unduly snarl traffic. First Amendment law has long (and correctly) recognized a distinction between
  1. content-based speech restrictions that suppress speech precisely because of the information or ideas that the speech communicates, and

  2. content-neutral speech restrictions that suppress speech because of its content-independent side effects, such as excessive noise, traffic obstruction and the like.
Content-based restrictions are generally unconstitutional, unless they fall within certain categorical exceptions that don't apply here. Content-neutral restrictions, though, are often constitutional if they leave open ample alternative channels for communication.

     Whether such content-neutral restrictions are or are not constitutional depends on the facts of each case -- for instance, on how ample the alternative channels of communication are, how much content-independent harm (such as traffic obstruction) the speech would cause, what specific content-neutral policies the police have in place with regard to parades and rallies generally, and so on. I can't say for sure whether the NYPD's denial of the parade permit would be justified under these policies; but I can say that such a content-neutral justification for restricting speech is much more defensible than the content-based justification the Sun proposes.

     I thank Letter from Gotham for prompting me to post on this subject, but I leave it to readers to decide whether it's accurate, fair, or helpful to characterize the recent posts on this matter by "Volokh and a brigade of bloggers" as "hyperventilating on [our] own self-righteousness," as opposed to, say, justified criticism of a newspaper's call for viewpoint-based suppression of ideas.

     Also, one thing should be clear: It's a mistake to say that the denial of the permit is "not a First Amendment issue," but "simply a public safety issue." The Supreme Court has repeatedly, and correctly, held that content-neutral speech restrictions do raise "a First Amendment issue," though they may nonetheless be sometimes justified under the First Amendment because of public safety concerns.

UPDATE: Letter from Gotham posts a very gracious apology, which I much appreciate, and also has more commentary on the matter (scroll up).


UPPER HOUSES: I've been following Michael Jennings' and Iain Murray's postings about the House of Lords reform debacle in the UK with considerable interest. One additional thought: Federations seem to have a somewhat easier time figuring out how to have a second house of the legislature that differs from the first. Representation by state isn't the only possible solution, of course. One could have a lower house elected by district and an upper house elected nationally by PR. The upper house could have such long staggered terms as to make it effectively immune to rapid shifts in the electorate. It could be corporatist, giving representation by economic sector. It could be selected by lot. There's even Hayek's wacky idea for election by age cohort. The division of power between the center and the states/ provinces is the essence of federalism; giving the states a special status in the design of bicameralism is not. But, in practice, the U.S., Australia, and Germany seem to show that an upper house in some way dependent on federalism is a pretty stable solution that can offer real counterbalancing to the lower house and/or the executive.

Britain, devolution notwithstanding, isn't a federation and so doesn't have that resource to draw upon. Now that the traditional British constitution has been abolished, with astonishingly little debate and no clear sense of what to replace it with, that's proving to be a real disadvantage. The aristocracy no longer represents a plausible basis on which to build bicameralism, and there are no states on which to build it. So the UK has to try to come up with something de novo that both has democratic legitimacy and can serve some useful role that's different from the role of the Commons. It's tricky.

UPDATE: Chris Lawrence has more: "upper houses in general have proved themselves rather pointless without either federalism or feudalism as a justification." That seems a little strong to me; but they may be difficult to sustain without one or the other. Noah Millman has an idea for an upper house for Israel.


COBELL V NORTON: Continuing news from the Individual Indian Monies trust fund case:

Judge Lamberth is not pleased with the "repugnant" behavior of DoJ attorneys; "the conduct of defense counsel in this matter makes a mockery of all that the Department of Justice stands for." (The complete order is here; it orders the DoJ lawyers to pay the plantiffs' lawyers fees out-of-pocket.) The GAO says that Interior isn't making progress on fixing the problems.

(Don't know what I'm talking about? See here and here and here.)


MONDAY MORNING ROUNDUP: Hmm... What's new? Andrew Sullivan is really getting annoyed at the administration's budgetary irresponsibility. If tax cuts are supposed to act as a constraint on spendthrift Congresses, when better to start than right now instead of accelerating the spending binge of the last three years? Hey, Republicans who complained about Libertarians not voting for your candidates last November: this is why. And don't start yammering about the Democrats being worse still. Domestic discretionary spending fell during the first three Clinton years and is budgeted to rise by double digits during the first three Bush years. (See also my posts below on the balanced budget amendment. And remember that the problem needn't be understood as a resulting from the tax cuts. Agriculture bill, anyone? Bud Shuster, anyone?) Nick Gillespie asks, What color is the budget alert system on again?

In the Boston Globe's weekly Ideas section (have I mentioned how much superior it is to the NYT Arts & Ideas page?), Forget McDonaldization. Iain Murray has commentary on the partial draft of an EU Constitution.

Eric Muller continues to provide detailed coverage of Howard Coble's praise for the internment of Japanese-Americans, and to provide historical documentation showing that Coble's wrong.

The Oxbloggers have become activists; Matthew Yglesias and Kevin Drum have thoughtful posts about supporting the war from the left; Chris Bertram finds some telling documentation about Project Mirage and about France and Germany vis-a-vis the rest of Europe, in the European press. There's bad news from NATO and good news from Saudi Arabia.

And Chris Lawrence throws his hat into the ring.


WE'RE #2! A Right Wing News survey of a bunch of leading bloggers lists us as #2 among group bloggers, behind Samizdata. Very glad to hear it.


THE OXBLOGGERS AND THE MOVEMENT FOR PROMOTING DEMOCRACY THROUGHOUT THE WORLD: Seems like a great project, in which the Oxbloggers are taking a leading role. See their op-ed today in the Yale Daily News, and their on-blog summary of the movement's principles.


GUIDELINES ON PRAYER IN SCHOOLS: The Department of Education has just released its "Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools" -- I skimmed over it, and it seems to be a fair summary of the existing constitutional law on the subject.

Sunday, February 09, 2003


AMUSING PROFESSOR QUOTES: This site collects them, and even lets you add your own. The site has a techie orientation and an international flavor (or should I say flavour?), but even U.S. law geeks can appreciate it.


ESTRADA & AFFIRMATIVE ACTION Why is it that some liberal commentators assume that every successful minority is a product of affirmative action? Michele Martin suggested as much this morning on ABC News' "This Week." In the case of Estrada, the "product of affirmative action" claim is particularly strained. First, while Estrada is Hispanic, he is Honduran, which would make him ineligible for admission preferences at many elite universities. Even if Estrada did receive an admission preference when he applied to college, he certainly has not needed any such preferences since. He graduated magna cum laude and Phi Beta Kappa from Columbia University, and magna cum laude from Harvard Law School, and went on to prestigious clerkships on the U.S. Court of Appeals for the Second Circuit and the Supreme Court. By all accounts, he shined while at the office of the Solicitor General, and I know he heartily impressed most of his colleagues at Gibson, Dunn & Crutcher. His unquestioned intelligence and skills led the ABA to give him a unanimous "well qualified" rating. So where's the affirmative action? Perhaps it is in the nomination of Estrada in the place. To be sure, to many Estrada's background makes him a more attractive nominee, but it's also incontrovertible that Estrada's qualifications are on a par with many prior nominees to the D.C. Circuit. What truly distinguishes Estrada is not the fact that he is Hispanic, but that he's overcome substantial obstacles and achieved substantial accomplishments. Perhaps that Estrada could accomplish so much without the need for affirmative action is really what has some of his critics so upset.


WAR ON TERRORISM HITS CLOSE TO HOME: Reports of the good possibility of "imminent" chemical or biological warfare attacks targeting the east coast in general and my own city of Washington, DC, in particular were more than enough to make the war on terrorism very real for me. Now I've just learned that the CIA officer killed in Afghanistan last week was a friend and law school classmate of mine, Helge Boes. Helge was killed in a live-fire exercise when a grenade exploded prematurely; you can read about him here.

     May he rest in peace.

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