Saturday, November 01, 2003

 
[Randy Barnett, 11/1/2003 08:31:45 PM]
War and Technological Development: War and Technological Development: I have always been skeptical that the spin-offs of war technology, or the space program for that matter, yielded better technology for civilian uses than direct R & D on civilian uses. I do not deny that military research sometimes ends up with very useful civilian applications. But apart from the huge amounts of tax money available for the former, it always seemed to me that you would be more likely to invent something useful for civilian use if that is what you were trying to invent, rather than trying to invent a better weapon and then eventually getting a spin off. Seems to me that claims to the contrary partake of the phenomenon of "the seen vs. the unseen." We see the military/space spin offs; we do not see the opportunities lost due to the military R & D--not to mention the destruction caused by war itself.

In response to my Star Trek post below, some readers write to disagree. Two readers sent me the following quote from Orson Welles' character Harry Lime in the film, The Third Man (though one did not endorse the sentiment):


"In Italy for thirty years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love, and 500 years of democracy and peace, and what did that produce? The cuckoo clock."
Pithy, I admit, but unpersuasive. Subsidies for artist produces art, some of which may turn out to be great. It's Perry the Cynic writes:


I think that the most scientific and industrial progress tends to come from societies that are successfully competing in a military threat matrix but are not militaristic in the sense of trying to solve their social problems through military means. In other words, societies that are balancing military strength with non-military focus.

This may just be a case of avoiding obsessive extremes. Strong militaristic societies tend to produce more military-oriented technological innovation, but miss the long-term wealth creation of "internally loose" societies that are not organized along military lines. Societies that do not believe in military strength either don't because they have no credible external enemies, or they don't last long as societies. Un-threatened creative societies tend to either lose focus (turn inwards and stall), or (much more often) develop internal fissures and break up into geographic sections, who then form the credible military threats to each other.

If that sounds like I think credible external military threats make a society more creative, then yes, I think as a statistical rule this holds. On the other hand, being war-oriented is not a long-term plus for technological prowess.

One interesting pattern is the strong, expansionist culture that grows and incorporates more and more of its neighbors. They tend to grow until non-mlitary factors limit growth, then stall in the "no external threat" pattern. (Various pre-Spanish south american cultures demonstrate this through limitations of food production and geography. The Roman Empire, arguably, stalled that way when it ran into communications technology
limitations due to its large size.)

Examples on request. You asked for thoughts, not proof. :-)
A nuanced view, but I remain skeptical. A case can be made that it is the absence of a major devastating war since the 1940s that has made possible the vastly increased levels of prosperity both in the US and abroad--and its corresponding technological progress.

 
[Tyler Cowen, 11/1/2003 12:28:32 PM]
Iraqi debt relief: Nobel Laureate Joseph Stiglitz calls for easing the Iraqi debt burden, which has been estimated from $60 billion up to hundreds of billions. (On top of this I can't believe that some Congressmen wanted to put them in debt further.) Both liberty and practicality are on the side of debt relief, and this is the correct conclusion no matter how you feel about the war and subsequent occupation. If the debts are enforced, Iraq will have no chance of recovering, to the detriment of us all. Read his article, this is one of the most important issues facing the world today. Here is a more general site on debt relief. Here is a blog on Iraqi debt relief. I don't always agree with Stiglitz, but this time he is bearing a very important message.

 
[Cori Dauber, 11/1/2003 03:01:15 AM]
We probably don't have a choice I suspect the Post is right: about the frontier provinces getting out of control, about Musharref not holding up his end of the bargain, about their concerns regarding the Pakistani army and intelligence services (although that's been true from the beginning, the issue in part there really does need to be not only how bad they are today but how bad they were yesterday and how fast they can be improved), and finally that the Bush administration feels it has no choice but to support Musharref. The problem we face is that Musharref can only move so fast, but that he probably sees no need to move as fast as he can as opposed to as fast as is comfortable so long as he knows he is our only choice. The question is are we making sure he is going at the fastest speed consistent with avoiding all those army and intelligence officers waking up one morning and deciding they can really do a better job with the country -- and are we constantly reminding him that sometimes it can hurt less to rip a bandaid off quickly. Hesitancy in these matters can sometimes be as dangerous as recklessness.

 
[Cori Dauber, 11/1/2003 02:49:30 AM]
Are You Kidding Me? No, really, are you kidding me? This is legal? They get accused of collecting money to launder or skim or support terrorist groups in whatever financially shady way they plan to finesses and massage the money, the money is frozen, and they get to use the money out of those accounts to pay the legal fees? This strikes me as outrageous. And if I were an ordinary Muslim who had mistakenly contributed to a dirty charity, and now saw my money going to legal fees instead of widows and orphans, I'd be outraged too. It this is legal, why is it legal?

 
[Cori Dauber, 11/1/2003 02:37:39 AM]
Why is This is a Sensitive Idea? I thought combatting the influence of the radical madrassas in the Islamic world, strike that, whereever the Saudis have managed to plant them, was a virtual consensus idea, not a sensitive one. Is this a war of ideas or not? Are we going to take seriously the repeated reports, some government sponsored, some independent, that keep telling us we have to invest in changing the way people in the Arab and Islamic worlds view us or not? Are we going to take seriously the reports that part of the reason resentment builds in that part of the world is that their people are ill-prepared to face the 21st century? -- maybe part of the reason is schools where students are taught nothing other than memorization of the Koran Will the mullahs scream if we, the hated Americans, try and change the way they teach their hate filled rants? No doubt; even efforts to force expanding the curricula in Pakistan were seen as "modernization" and fought tooth and nail. But I keep hearing a lot of these kids are in these schools because parents with no alternative send them there because it gets them some kind of education and a hot lunch. How many of those parents would choose that if there was an alternative that actually did teach, oh I'm just spitballing here, science and math? Are we in a war of ideas or not? If we are, we aren't going to win unless we admit that we are. If every suggestion for changing minds and influencing the way people think is "sensitive" we risk PCing ourselves into years more of war.

Friday, October 31, 2003

 
[Randy Barnett, 10/31/2003 09:13:29 PM]
I've Given up on K Street: Watching all these pols portraying themselves seemed cool at first, but now it just seems eerie to see, say, Tom Daschle or Don Nickles discussing the energy bill with an actor. In addition to eerie, the story lines are pretty dreary. So I am outa there. But I did notice something I thought was interesting. When the professional actors are acting, they seem like actors acting. But when Mary Matalin or James Carville are acting they seem real. I suppose the explanation is that they are playing themselves, but I also think acting technique may get in the way somehow of verite. For the same reason, you seem always able to tell the fake man-on-the-street commercial from one with real consumers. Acting may be too stylized to be real but we don't notice it because we don't normally surround actors acting with real people playing themselves. Then again, these so-called "real people" are politicos who are acting all the time. Maybe they are just better at it than the pros. All this sort of reminded me of my "When is faux real?"/"When is real faux?" posts over the summer here and here.

 
[Randy Barnett, 10/31/2003 08:50:44 PM]
Star Trek and Democracy: Provoked by my earlier posts on Star Trek (here and then here), Professor Robin Alta Charo writes:

As a serious trekkie, one of the things that has struck me is the disconnect between the Star Trek rhetoric of democracy and the reality of the life portrayed. In general, all the series and all the characters operate within a primarily military hierarchy in which there is little actual democracy in play. The Federation Council is rarely seen acting as a democratic body and the individual characters never seem to be concerned about voting or otherwise participating in democratic governance of their home planets. The Klingon political scene is more thoroughly covered, tho it is surely no democracy but rather an oligarchy-based council. What a shame, as this represents, to me, a lost opportunity to explore the future of government on Earth and elsewhere.

As to the comments about the various series, trekkies are surely a cantankerous and argumentative bunch, but I would like to put in a good word for DS9, at least, the DS9 before the final season went over the top into fantasy rather than science fiction. This was the only series to have made a real effort at multiyear story arcs that involve day to day politics as it evolves in response to changing exernal threats and opportunities. In that particular respect, it was far superior to the other series on the sociopolitical life of the federation.

On the political issues represented in the various series, I find it fun to track the social angst of the day against the year in which the series are being written. For TOS, it's arms control and racism. For TNG, it's environmentalism, artificial intelligence and eugenics. For DS9 it's terrorism and for both DS9 and Voyager it's genetic engineering. And for ENT it looks like it's weapons of mass destruction. Seems like the series are a window on our current world even more than on the future.

Who knows? Maybe something like no government is the future of government. When I was a kid, I was never afraid of the possibility of first contact with aliens because I figured that, to get technologically advanced enough to become interstellar, a species would have had to have adopted a pretty purely peaceful, free market society eons before.

UPDATE: A reader responds:

Do you still believe that? I think that more technological developments have come from war-like civilizations than peaceful ones. Look at our space program during and after the Cold War. Peace does not necessarily foster progress. War is a very powerful motivation for development. And even if an alien species were peaceful among themselves, that's no reason to think they would be peaceful toward humans.

Any thoughts?

 
[Randy Barnett, 10/31/2003 08:20:10 AM]
�Those Jews�--If only Israel and its supporters would disappear: Victor Davis Hanson writes this lengthy column this morning on the increasingly fashionable anti-Semitism, a phenomenon about which, in my experience, far too few American Jews are concerned. Since I was a kid, I have always questioned the wisdom of the Zionist vision of getting all those Jews conveniently in one place--though not a lot of alternatives presented themselves, I had to admit. Moreover, for me as a youth contemplating the Holocaust, even while experiencing the anti-Semitism of the predominently Polish-Catholic Calumet City Illinois where I grew up, the United States of America was still the Promised Land. But the wisdom of Isreal's creation to one side, I think those American Jews who try to distinguish widespread and rabid anti-Israelism from anti-Semitism, and who even nurture it themselves, are making a big big mistake. Here is how the Hanson column ends:

This fashionable anti-Semitism and anti-Israelism � especially among purported intellectuals of the Left � reveals a deep-seated, scary pathology that is growing geometrically both in and outside the West. For a Europe that is disarmed, plagued by a demographic nightmare of negative population growth and unsustainable entitlements, filled with unassimilated immigrants, and deeply angry about the power and presence of the United States, the Jews and their Israel provide momentary relief on the cheap. So expect that more crazy thoughts of Israel's destruction dressed up as peace plans will be as common as gravestone and synagogue smashing.

For the Muslim world that must confront the power of the patriarch, mullah, tribe, and autocrat if it is ever to share the freedom and prosperity of the rest of the world, the Jews offer a much easier target. So expect even more raving madness as the misery of Islamic society grows and its state-run media hunker down amid widespread unrest. Anticipate, also, more sick posters at C-SPAN broadcast marches, more slips by reasonable writers, and more anti-Israeli denunciations from the "liberals."

These are weird, weird times, and before we win this messy war against Islamic fascism and its sponsors, count on things to get even uglier. Don't expect any reasoned military analysis that puts the post-9/11 destruction of the Taliban and Saddam Hussein's evil regime, along with the liberation of 50 million at the cost of 300 American lives, in any sort of historical context. After all, in the current presidential race, a retired general now caricatures U.S. efforts in Iraq and quotes Al Sharpton.

Do not look for the Islamic community here to acknowledge that the United States, in little over a decade, freed Kuwait, saved most of the Bosnians and Kosovars, tried to feed Somalis, urged the Russians not to kill Chechnyans, belatedly ensured that no longer were Shiites and Kurds to be slaughtered in Iraq, spoke out against Kuwait's ethnic cleansing of a third of a million Palestinians � and now is spending $87 billion to make Iraqis free.

That the Arab world would appreciate billions of dollars in past American aid to Jordan, Egypt, and the Palestinian Authority, or thank America for its help in Kuwait and Kosovo, or be grateful to America for freeing Iraq � all this is about as plausible as the idea that Western Europeans would acknowledge their past salvation from Nazism and Soviet Communism, or be grateful for the role the United States plays to promote democracy in Panama, Haiti, the Balkans, or the Middle East.

No, in this depressing age, the real problem is apparently our support for democratic Israel and all those pesky Jews worldwide, who seem to crop up everywhere as sly war makers, grasping film executives, conspiratorial politicians, and greedy colonialists, and thus make life so difficult for the rest of us.

While I am not sure I would include Greg Easterbrook's imbroglio along with the others Hanson discusses, the rest of the column merits reading in its entirety.

UPDATE: A reader brings to my attention the following sentence from Hanson's piece: "There are certain predictable symptoms to watch when a widespread amorality begins to infect a postmodern society: cultural relativism, atheism, socialism, utopian pacifism.� I had missed the reference to atheism and would strongly disagree with its inclusion. But I hasten to add that I do not endorse every claim in articles to which I link, even articles with which I generally agree. I link mainly because I think an article will be of interest to readers as it was to me. I find that sometimes readers forget this.

 
[Tyler Cowen, 10/31/2003 07:22:51 AM]
The Palestinians against the RIAA "As for the risk of a lawsuit from the Recording Industry Association of America, the selling point for new versions of peer-to-peer networks in recent months is that they can guard the identity of users. The most popular now is Earth Station 5, based in, of all places, the Jenin refugee camp on the West Bank. After the RIAA said it would sue, its software was downloaded more than 16m times in 90 hours. So far, it seems to work."

Stephen Ketcham pointed me to this quotation from the October 31st issue of The Economist.

At any point in time, fifteen million people are using the service. There seems to be no legal danger, though I wonder whether terrorists could use the service to wreck or commandeer computers. When told it was engaging in copyright infringement, the service offered the following defiant response. Here is just one bit from it: "The next revolution in P2P file sharing is upon you. Resistance is futile and we are now in control".

A story such as this has so many angles, not all of which I would find sympathetic. A blow for Palestinian self-esteem? (Can we be sure it comes from the West Bank?) Striking back against cultural globalization? Will the RIAA now take a stance on foreign policy in the Middle East? Will users start getting anti-Israeli pop-up ads? And so on.

My perspective is more mundane. I've said it before and I'll say it again. IPod or not, file-sharing is with us to stay. Brace yourself for the new musical world, and that is only the beginning.

Addendum: Matthew Dessem warns about potential malicious code inserted in the software, read here.

 
[Tyler Cowen, 10/31/2003 05:25:58 AM]
Who owns the word "Catholic"? "does he [the Pope] also hold a copyright on the word "Catholic"? Readers of a dispatch from the Associated Press last month might well have wondered. The story reported that "a lawsuit filed by the Roman Catholic Archdiocese of Atlanta accuses a network of Spanish-speaking churches of falsely claiming to be Catholic.""

Here is more:

"Mark Chopko, the general counsel of the United States Catholic Conference, said as far as he knows the Altlanta lawsuit is one of a kind and that the national church took no official position on it. The American Roman Catholic Church is not declaring open season on other groups that use the "C" word in their names.

That's just as well, because it could prove impossible under the First Amendment to cabin the terms "Catholic" or even "Roman Catholic."

Lots of people who don't recognize the Bishop of Rome consider themselves just as Catholic as John Paul II. Many Protestants on Sunday recite the Apostles Creed, which contains the affirmation "I believe � in the holy catholic church.""

Slate.com offers the full story, although I worry when the author starts by noting that the Pope is supposedly infallible, without qualification, that is not Catholic doctrine as I understand it.

Addendum: Note that much of this blog post is in quotation marks, it is not my opinion, it is from Slate.com. The article struck me as sloppy. For one thing, trademark law might be more relevant, not copyright.

 
[Cori Dauber, 10/31/2003 03:02:55 AM]
Did She or Didn't She? David Sanger begins this article with the clear, precise writing for which he is known, "President Bush's national security advisor said on Thursday that the Clinton and other past administrations had ignored growing evidence of terrorist threats and that despite repeated attacks on American interests, 'until Sept. 11, the terrorists faced no sustained, systematic and global response,' from the United States."

Well that sounds like both a damning and a surprisingly explicit critique given the charged nature of this political season. We have come to expect more subtle statements from Dr. Rice. It is not until the fifth paragraph that we read, "Without ever naming Mr. Clinton or other past presidents, she argued that Mr. Bush had no choice but to take a far more muscular approach to American security, one in which she said the biggest threats to American security were never taken seriously enough." That puts a slightly different spin on things, no?

 
[Cori Dauber, 10/31/2003 02:43:34 AM]
Soldier Dies in Afghanistan "An American soldier has died in Afghanistan from wounds sustained in a combat action." That is all MSNBC tells us this morning. As other stories trump Iraq coverage, but when there are stories they can't cut out, generally the deaths of American soldiers, this is the level of information we get -- and of course we rarely get more than this with Afghanistan. Here's the problem. There is a general consensus of research that the American people will tolerate combat casualties so long as they do not believe those deaths are meaningless deaths. I am not talking now about the balance between good news and bad news, I am talking about the way the bad news is presented.

"An American soldier has died." Doing what? In an offensive act? Being ambushed? Were bad guys caught, an arms cache found? Or did they all get away? Without any narrative context any possible hope for meaning for this death is striped away -- there is no hope for seeing meaning here because no meaning is given. There may well be a debate to be had over whether American combat deaths in Iraq (or Afghanistan, I suppose) have meaning, but that debate is over before it has begun when the press presents those deaths with any meaning already stripped out.

Is it any wonder support for the mission erodes? When the casualties are presented this way, people will see these deaths as meaningless because, forget the larger purpose, the abstract, many of the individual deaths are, in fact, night after night, presented without any meaning whatsoever.

 
[Cori Dauber, 10/31/2003 02:26:42 AM]
It Shouldn't Take a Blogger I found this via Little Green Footballs. That strikes me as absurd. Why isn't it fronted by the New York Times and the Washington Post? Should we fly into a panic and change the way we live every time al Queda issues a threat from their caves? Certainly not. But if we do not at least take their threats seriously enough to mention the fact that they have occurred, how can we be surprised that Americans do not report in polls that terrorism ranks particularly high in their list of concerns? They are being signaled in every possible way by the media that terrorism in fact is not one of their very great concerns -- after all, didn't we just hear a very great deal about Liza Minelli's divorce? Coverage should not be pitched to panic to people but it has to be pitched to reminding people that a threat still exists, and is more of a concern to them than either Scott Peterson's fate or whether Diana's butler did it.

Thursday, October 30, 2003

 
[Cori Dauber, 10/30/2003 08:26:54 PM]
The Tragedy Template We have a cycle and a geography of tragedy in this country. On the west coast, earthquakes and fire, in the square states, more fire, floods and tornadoes for the midwest, hurricanes for the southeast, blizzards for the northeast, and horrifying transportation accidents anywhere anytime. Whatever the tragedy, the networks immediately launch into their utterly predictable, by now completely ritualized disaster protocals -- a template for the coverage of tragedy. The greater the magnitude of the disaster, the more coverage there has to be, whether extra coverage is more information, or more ritual, as if to give less air time is to be disrespectful to those suffering, who no doubt have more on their minds than watching news coverage. The anchors must fly to the scene forthwith, donning khaki, even if it means anchoring, in Peter Jennings striking words the other night, "from the ruin's of someone else's life."

And the abstractions of grieving are unacceptable. They refuse to believe that, seeing homes burning, and hearing that 700 families are out on the street, we can make the necessary connections without seeing representative families in their grief. The greater the violation of the intimacy of grief, the better the story is presumed to be. And the template ends, not with the resolution of the disaster, but with the next story big enough to allow them to justify moving on with any level of grace.

While in normal times this may be problemmatic for the way the news media portray disasters, it is problemmatic now for the way the fires wiped virtually everything else from the air. Monday we were told the weekend of attacks in Baghdad suggested the war there was approaching some kind of tipping point, or crisis point, or turning point, or some kind of point anyway. Tuesday it was hard to find Iraq coverage of much detail at all. What lingers is a sense of chaos, of events spinning out of control, because that is where the story was left off, when in fact if the city was in chaos, surely they would have squeezed two minutes of air time out of the heartwarming stories of courage and sacrifice that were everywhere. (I do not mean to minimize what is happening in California. I mean to suggest that the routinization of this kind of coverage makes it legitimate to ask where the line is drawn, and whether there has been enough California coverage to inform us, versus coverage that allows the media to wallow in the grieving of others.) A bit back the most important political story of the season was the willingness of the Senate to hand the administration a defeat by making part of Iraqi reconstruction loans, and this was seen as vital to the substance of the story too. Now when the Congress reverses that, it is barely worth mentioning?

No matter. Tonight the economy was the big story. The anchors have returned home, and the amount of coverage has shrunk back to a more manageable level, if the fires have not quite yet. They have their graceful exit from the media feeding frenzy, in advance of the end of the story, and soon they will have exited all together, leaving California to clean up, and rebuild, and grieve, without the attention of the national media. But there will be no recapturing what has been lost in terms of momentum on the Iraq story. What do Americans believe is the current state of play there because of the way the fire story was handled -- and was it worth it given how much we really got out of the way the Tragedy Template was applied this time around?

 
[David Bernstein, 10/30/2003 05:55:51 PM]
Washington Post on Janice Brown: The Post's editorial today suggests that any judicial nominee who has sincerely praised the Lochner case and its progeny, as Brown has, should be defeated. This raises the question of what was so terrible about Lochner. There are several possibilities:

(1) One common traditional criticism of Lochnerian jurisprudence, that constitutional protection of liberty of contract was essentially made up by willfully political or formalistic judges, has been persuasively rebutted by revisionist scholars. These scholars--including political scientists, historians, and law professors--argue that Lochnerian jurists genuinely tried to enforce what they saw as the mandates of the Fourteenth Amendment. Scholars now believe that the Lochner Court relied on one or both of two long-standing American intellectual traditions that heavily influenced American conceptions of liberty and the proper role of government in the postbellum era when the Fourteenth Amendment was framed: the natural rights and "free labor" tradition, and opposition to "class legislation"--legislation that aided politically powerful interest groups at the expense of the public at large. (Howard Gillman focuses on the class legislation angle; I am persuaded that the Court was primarily concerned with protecting natural/fundamental rights.) The revisionist viewpoint seems well on its way to becoming the conventional wisdom among legal scholars.

(2) The Lochner-era Court was practically out of control; it struck down approximately two hundred economic regulations on substantive due process grounds. In fact, Michael Phillips has shown that the 200 cases figure is a gross exaggeration. Moreover, careful scholars have known for years that the Court upheld far more legislation than it invalidated, including such innovations as residential zoning, workers' compensation, medical licensing, child labor laws, and estate taxes.

(3) Lochnerian decisions overturned "social legislation" that would have aided the poor and necessitous at the expense of the wealthy and powerful. In fact, the redistributive consequences of the laws that the Supreme Court invalidated were far more complex than the standard myth allows. Indeed, some of those laws clearly would have redistributed wealth upwards by creating monopolies or monopsonies at the expense of consumers, or by restricting entry into an occupation by new workers. Consider, for example, New State Ice Co. v. Liebmann in 1932, in which the Court invalidated an Oklahoma law creating a government-sponsored monopoly in the ice industry. Justice Louis Brandeis wrote a preposterous disssent, which is unjustly celebrated as a Progressive masterpiece.

(4) The Lochner era Court's reactionary nature is demonstrated by the fact that it limited its concern for "liberty" to "liberty of contract." Yet liberty of contract cases were only one application of substantive due process, and not necessarily the most important one. In an era before modern First Amendment and Equal Protection jurisprudence, the Court increasingly invoked substantive due process to protect the rights of racial and religious minorities. The Court invalidated on Lochnerian grounds laws requiring housing segregation, laws banning private schools, laws that placed special regulatory burdens on women, and other laws that violated civil rights and civil liberties. Many modern decisions championed by liberals, including last term's Lawrence v. Texas, are direct descendants of these cases.

All things considered, I think Lochner itself was a dubious decision as a matter of constitutional law, because the regulation of hours of labor had been considered a traditional police power regulation, not a violation of liberty. But certainly merely praising Lochner and like-minded decisions--which an appellate judge like Brown would have no ability to resurrect in any event--should not be grounds for disqualification from being confirmed to a seat on a federal appellate court.

UPDATE: For more, see this post by Clayton Cramer, and this post by Will Baude.

 
[David Bernstein, 10/30/2003 05:15:39 PM]
Pickering and Brown: While I'm a staunch supporter of Janice Brown, I'm glad Charles Pickering apparently won't be joining the 5th Circuit. It's unfortunate, however, that Pickering was defeated through a filibuster, which I don't think is appropriate for judicial nominees.

 
[Cori Dauber, 10/30/2003 04:21:33 PM]
An Introduction I'd like to quickly introduce myself. My name is Cori Dauber, and I've been invited to guest blog here by the co-Conspirators for a week or so. I'm an Associate Professor in Communication Studies, and also in Peace, War, and Defense, at the University of North Carolina, with a research specialty in the media coverage of war and military affairs. My work generally appears over at Rantingprofs.typepad.com/rantingprofs and focuses (no surprise) on the media coverage of the War on Terror, including Iraq.

 
[David Bernstein, 10/30/2003 12:49:32 PM]
Appearances: You can catch me on the Rush Limbaugh Show, guest host Walter Williams, tomorrow (Friday) at around 2:05. Next week, Monday I'll be speaking at Whittier Law School in Orange County, CA, at 12:30, and at Chapman University at 7:00; Tuesday at Loyola Law School in LA, time TBA, and UCLA Law School at 6:00 pm; Wednesday at Santa Clara Law School at noon, Hastings at 3:40, and University of San Francisco Law School at 5:30; and on the Gene Burns Show at 8:00 pm PST.

 
[David Bernstein, 10/30/2003 11:59:25 AM]
Typical NPR "Balance": I listened to part of the "Kojo Namdi Show" on WAMU, Washington, D.C. today. The promos said there would be three women Jerusalem residents on the phone, one Christian, one Moslem, and one Jew, talking about their daily lives. As it turned out, the Christian and Moslem weren't typical Jerusalem residents, but Palestinian spokespeople who had clearly undergone extensive media training, and parroted the Palestinian authority line. And the Jew? An extreme leftist, who, at least in the segment I heard, seemed unwilling to defend Israel's right to exist as a Jewish nation. The Christian and Moslem (and the Jew, for that matter) went on and on about the suffering of the Palestinian people under the "occupation." Yet almost everything they complained about--roadblocks, curfews, massive unemployment, etc.--did not exist, or was much less common, before the onset of suicide murders, with the attendant Israeli security responses. Kojo completely failed to raise this point, and when he looked to the Jewish guest to respond to the Palestianians, she served as their amen corner. Kojo did try to note that none of the political movements represented in the current Palestinian government believe in non-violent resistance, but he backed down when the Palestinians objected. Disgusting.

UPDATE: I've received a few emails from readers suggesting that it's unfair to criticize NPR based on one local show. NPR, however, is well-known for its pro-Palestinian bias; I'm just providing an especially egregious example.

 
[Sasha Volokh, 10/30/2003 08:21:26 AM]
Mixed messages from the Post: The Washington Post, in today's article about the sun, twice debunks ancient wisdom. First (and you can treat this as a reaffirmation of an even more ancient wisdom):

[I]t's no longer safe to assume, as most educated people have for hundreds of years, that the sun is a boring, inert yellow object in the sky, trapped in a hamster-wheel existence, unable to think of anything to do with itself other than shine.

No: The sun is more like a god.

And the second debunking:

[A]lthough it appears in the sky to be roughly the size of a Sacagawea dollar, and seems like something you could easily reach if you built yourself a pair of wax wings and flapped really hard, it's actually a very large, distant object.

So we're getting mixed messages, or perhaps this is just the Post's biased reporting. The sun is a god, and yet we can't reach it with wax wings? That makes no sense! But at least they seem to get one thing more or less right, commenting on the "fierce debate" over the role of sunspots in global warming:

The sun is old. It formed at about the same time as the Earth, 4.6 billion years ago. Barring an unforeseen calamity the likes of which one doesn't even want to ponder, the sun will be around for billions of years yet. But it'll change. Eventually it will cool, expand and turn into a "red giant" that completely consumes the Earth -- which may finally end the global warming debate.

Wednesday, October 29, 2003

 
[Tyler Cowen, 10/29/2003 06:34:28 PM]
Pure rumor "As rumors continued to swirl around whether President Vladimir Putin had or had not accepted the resignation of his chief of staff Alexander Voloshin on Wednesday, a new political figure suddenly emerged from the wings in a reminder that strange intrigues never end in Russian politics.

That figure is jailed Yukos CEO Mikhail Khodorkovsky. And, politicians and analysts suggested, he could be used as a third opposition force in the presidential elections to force Putin into a second round and into compromise with big business.

The yakking started with a report in liberal daily Gazeta saying that the Communist Party had held an emergency meeting over the weekend to discuss forwarding Khodorkovsky as its candidate for the presidential elections. The party was quick to issue a denial, but by the afternoon, the idea that Khodorkovsky could run had stuck.

Ekho Moskvy radio conducted a poll to see who listeners would vote for if confronted with a choice between Khodorkovsky and Putin. Khodorkovsky won by a long margin among the station's liberal audience. He gained 87 percent of votes cast by Internet and 75 percent of votes called in.

Politicians and analysts polled by The Moscow Times said there was a chance Khodorkovsky could try to run in opposition to Putin in the 2004 presidential elections.

"Khodorkovsky will be forced to run in the presidential campaign," said Ilya Ponomaryov, the Communist Party's chief information officer, who worked for Yukos from 1998 to 2002. "Once he has registered as a candidate, he will be set free. He will gain immunity before the law.""

From The Moscow Times. Please don't view me as validating this rumor, but it is bracing enough, and interesting enough, that I thought I would pass it along. Here is some background on the whole story, which I posted a few days ago on MarginalRevolution.com.

 
[David Bernstein, 10/29/2003 05:15:41 PM]
Sukkah Survivor: An interesting strategy to encourage interest in, and observance of, the Sukkot holiday among young Latin American Jews. Query whether "strip Israel trivia," broadcast worldwide via the web, is an appropriate marketing tool for religious/cultural observance.

 
[David Bernstein, 10/29/2003 11:10:06 AM]
"I'm a Metrosexual--Whatever that is"

Dean declared himself a "metrosexual," the buzz phrase for straight men in touch with their feminine sides, as he touted his accomplishments in "equal justice" for gay and lesbian couples.

But then he waffled.

"I'm a square," Dean declared, after professing his metrosexuality to a Boulder breakfast audience with an anecdote about being called handsome by a gay man. "I like (rapper) Wyclef Jean and everybody thinks I'm very hip, but I am really a square, as my kids will tell you. I don't even get to watch television. I've heard the term (metrosexual), but I don't know what it means."

(Via Drudge)

 
[Jacob Levy, 10/29/2003 10:05:36 AM]
Globalization's future: Over at TNR, trade expert Philippe Legrain suggests that things are really quite dire in the post-Cancun trade world. Sometime-Volokh-guest-blogger and trade expert Dan Drezner looks at Latin America, and says the prospects for trade agreements may not be as bad as they appear.

 
[Eugene Volokh, 10/29/2003 08:09:24 AM]
You can make anyone sound stupid, if you insist on completely ignoring the context. Here's today's Bushism of the Day, from Slate:

"[A]s you know, these are open forums, you're able to come and listen to what I have to say."�Washington, D.C., Oct. 28, 2003

The supposed error on Bush's part, I take it, is in calling something an "open forum[]" when he's the only one talking. Open forum, the theory goes, means forum open to all speakers.

     But, for crying out loud, Bush was talking about fundraising events! (Did you think that would be so from the out-of-context sentence that the Bushism includes?) Here's a longer excerpt:

THE PRESIDENT: . . . Ed, and then Bob, and then I'm going to go eat lunch.

Q: Are we invited? (Laughter.)

THE PRESIDENT: It depends on your question.

Q: Fair enough. Mr. President, you talked about politics. For weeks, if not months now, when questions have been posed to members of your team, those questions have been dismissed as politics, and a time will come later to address those questions. You, indeed, have said that, yourself. How can the public differentiate between reality and politics, when you and your campaign have raised over $80 million and you're saying that the season has not started?

THE PRESIDENT: You're not invited to lunch. (Laughter.)

Look, we are -- we're arming, raising money to wage a campaign. And there will be an appropriate time for me to engage politically; that is, in the public forum. Right now, I'm -- yes, no question, I'm going out to our friends and supporters and saying, would you mind contributing to the campaign for the year '04? To me, that's -- and that's a part of politics, no question about it. And as you know, these are open forums, you're able to come and listen to what I have to say.

To me, there's a difference between that and actually engaging potential opponents in a public discourse in a debate. And there will be ample time for that. There will be ample time to differentiate views and to defend records in the face of political criticism. And I know that the campaign has started for some, in terms of the public debate from a political perspective. It just hadn't for me yet.

     Bush is talking about his fundraising events. Of course he's the one speaking there; that's one reason people come to a politician's fundraising events -- to hear him speak. In context, it's perfectly clear that the "open" means not that other people are welcome to speak at Bush fundraisers; rather, "open" means that the media are welcome to attend (presumably after paying the requisite entry fee) and hear his pitch.

     On top of that, he then proceeds to acknowledge that, yes, this isn't the same as "actually engaging potential opponents in a public discourse in a debate," but there'll be plenty of time for that later. In context, the "open forum" line isn't just a forgivable slip -- it's no slip at all. It makes perfect sense, unless you strip out the context.

     This isn't just misplaced humor -- it's plain bad journalism. Whether you're trying to be funny or serious, stripping a quote free of its context (context that most readers have no way of knowing), and trying to making the speaker look foolish when including the context would show that he's making perfect sense, is wrong. It certainly has no place in an otherwise thoughtful and fair-minded publication such as Slate.

     Finally, note that the full context appears on the Web, but it's not findable through google. I found it only because I figured out that I should look on U.S. Newswire for the transcript. Most readers, I suspect, wouldn't have done that. Slate is a Web-based journal -- if you're going to be criticizing someone based on a snippet from what he said (and again, even if there's humor here, it's still humor that aims to criticize Bush), why not include the link to the whole piece, so readers can examine it for themselves? What possible excuse is there for that?

 
[Sasha Volokh, 10/29/2003 07:50:16 AM]
Supporting the enemy? With respect to International ANSWER's support of the Iraqi resistance, I think it's important to distinguish between "support[ing] the enemy" and being "our nation's enemies." The question the Communist movement is facing now is the same question they faced in the first Gulf War and in other wars, like the Italian invasion of Ethiopia in 1935, where a developed power invaded a less-developed country.

In the 1930s, not all Communists supported Haile Selassie against the Italians, pointing out that Ethiopia was a feudal state, while Italy, though fascist, was, if anything, closer to socialism. The party line (or at least the party line among some wings, including the Trotskyists) became that Western imperialism was a greater evil than the victory of a much less powerful feudal state; so the duty of Communists was to oppose Italy and therefore to desire the victory of whoever's opposing the Italians.

But it seems to me this is different than actually favoring the Ethiopians in a deeper sense. First, they only favored the Ethiopians as a means to the end of defeating Italian imperialism; and second, they weren't against Italy as such but only against its fascist government, and a defeat of that government's plans would actually make Italy a better country by their standards. (This is a version of the "dissent is patriotic" line, taken a step further: it's proper to desire "your country"'s, that is, your country's government's armed forces', defeat in an unjust cause -- an idea I don't disagree with.)

The same issue arose again during the first Gulf War -- I know because I was in college at the time and was reading the Trotskyist-Maoist publications Workers' Vanguard and Revolutionary Worker. Workers' Vanguard, run by the Spartacists -- these are types of Trotskyists -- was specifically criticizing the mainstream left's tendency to say "We oppose Iraq but the war is an even worse idea" as giving up the high ground; the true anti-imperialist, pro-worker policy is to actively support Iraq in any way possible as a way of defeating American imperialism.

Anyway, this is the same thing that International ANSWER is pushing today. They're supporting the other side, not because they like it in itself or have any brief for Islamofascism, but because they see the defeat of American military plans as the overriding objective. This still makes them the enemy of our nation's government and its armed forces; whether to call them our nation's enemy is another matter.

Now one can quarrel with some of their factual assertions: for instance, is American imperialism really anti-worker? If you support a workers' revolution abroad, then a weak U.S. military is indeed less likely to intervene to put it down; but on the other hand, it's standard Marxist fare that an industrially developed nation with its own proletariat is a more fertile ground for a workers' revolution than a feudal state, so U.S. intervention in Iraq, to the extent it brings Iraq further into the world economy and makes it more industrialized, may be more likely to encourage workers' revolution (under this theory) in the future.

Similarly, one can quarrel with the view of the domestic consequences of a U.S. defeat: is the U.S. military bad for U.S. revolutionary prospects? Of course, if you elect a leftist, he's more likely to end the war and more likely to enact leftist policies, but if you exogenously defeat the U.S. military, what effect does that have on U.S. government policies? Not totally clear; observe, for instance, U.S. policy during and after the Vietnam War (though I'm not necessarily making a general contrary claim).

But while one can quarrel with many of their factual assertions, I think that on their own grounds, they're trying to work for what they see as a better world. One can further say that they favor a better America, though they don't express this in nationalist terms, since they're internationalists, as am I.

Of course, one can also quarrel with the fundamental predicates of their argument: workers' revolution, either at home or abroad, isn't the overriding goal and, indeed, isn't even desirable; U.S. military action isn't the principal evil and, indeed, can be a force for good (and shouldn't even be called "imperialism"). To the extent International ANSWER argues otherwise, are they perhaps "our nation's enemy" in a broader sense, because they seek to destroy everything that's good about America? Perhaps. But then I didn't need to read how they support the Iraqi resistance to figure that out. Every Communist movement, even a totally peaceful and democratic one, is "our nation's enemy" (and, indeed, the world's enemy) because they support policies that would harm our nation (and the world).

P.S. I entirely agree that as the vast majority of anti-war protesters don't subscribe to International ANSWER's true agenda as I've characterized it above, "when [they] next hear about a supposed "anti-war rally" [they should] remember who is using the protesters as dupes, and what the rally organizers' true goals are."

 
[David Bernstein, 10/29/2003 07:40:00 AM]
SATs For Life? My colleague Lloyd Cohen passes along these thoughts:

A most interesting article in yesterday's Wall Street Journal. Apparently, there is an increasing trend among employers to ask applicants for their SATs long after graduation from college. I find this heartening. The SAT is fundamentally an IQ test. While not the only measure of likely productivity on the job, intelligence is probably the most powerful and robust predictor. In the past college of attendance, major, and grades, while always subject to unreliability, were more powerful indices of both intelligence and other productive inputs than they are now. As these other predictors have become more debased it is good to see that the market is responding.

Precisely because of its value as an IQ test there are those who wish to transform the SAT into something else, and wish to narrow its employment. One wonders how--if they succeeed--the market will respond.

Of course, the SAT does have some limitations as an IQ test, not least that taking a preparation class can boost results, and that language skills for the Verbal section will be affected by the quality of English spoken in one's home. But in the push to raise high school graduation rates and college attendance rates, graduating from high school or even attending college is no guarantee that a job applicant has basic literacy and math skills, much less advanced ones. It's not surprising that employers are looking for substitute signals.

 
[Eugene Volokh, 10/29/2003 07:02:23 AM]
Roger Williams University strips student newspaper of funds over anti-gay views: From the Providence Journal (registration required):

The flap began when the College Republicans published a series of articles and images in their newspaper, The Hawk's Right Eye, that accused "militant homosexuals" of trying to squelch free speech by pushing for hate-crime legislation. Another article, entitled "The Thought Police," asserted that a well-known gay-rights group indoctrinates students into homosexual sex.

The stories were accompanied by a brief article from WorldNet.Daily that describes, in sexually graphic language, the rape of a young man by an older man.

"Homophobic stories are always dwelt on," the article says, "but when homosexuals are the culprits, the news is swept under the rug."

The Republican group was responding in part to the campus appearance of Judy Shepard, mother of slain Wyoming homosexual Matthew Shepard, during freshman orientation this fall.

When university President Roy Nirschel saw the newspaper, he sent an e-mail to the entire campus on Oct. 9. In his letter, he said that the Republicans had crossed over the lines of propriety and respect.

"In the past, this organization has flirted with racist and anti-Islamic rhetoric," Nirschel wrote. "The most recent issue of their publication is pornographic in nature, puerile, mean-spirited and stereotypes gay individuals as child molesters, criminals or deviants.

"While we affirm the right of campus organizations to hold different points of view and to disagree," he said, "the university will not condone publications that create a hostile environment for our students. We are a university too busy to hate."

The administration temporarily froze funds for printing the student newsletter . . . .

Provost Edward Kavanagh, a self-described conservative, denied that Roger Williams's actions are an attempt by a liberal university to suppress a contrarian point of view.

"Should we have a conservative publication? Absolutely," he said. "Should we have someone who takes unpopular points of view? Absolutely. But this is not gutter politics. It should be done with the decorum and ethical standards expected of a university." . . .

"I have been attacked by College Republicans," said Winter Lavier, who sits on the Student Senate . . . . "They called me a rabid jackal and a homosexualist. Attacking me personally is very unprofessional."

Lavier said one student group, Sexual Advocacy For Everyone, has filed a formal complaint with the Student Senate, arguing that the Republican newsletter targets homosexuals. And Lavier has sponsored a bill that would withdraw university funding from the College Republicans.

Lavier called some of the material in the newsletter pornographic because, she said, it contains sexually explicit material that has no social, political or moral value.

"We want to protect the student body from such a hostile paper," she said. "We don't feel we have to pay for their free-speech rights. They can pay for it themselves." . . .

Meanwhile, Kavanagh met with the five leaders of the College Republicans on Friday and told them that their funding would be restored as long as they allow their adviser to review their work before publication. While this has always been an informal policy, the university now says it's necessary to put it in writing. The guidelines will apply to all student publications. . . .

     Well, Roger Williams University is, I believe, a private school. It isn't bound by the First Amendment, so its actions aren't illegal. And I disagree with the viewpoint of the student publication, which is apparently available here, and think that at least some of the argument is sophomoric.

     But should a university that aspires to be a place for debate and learning -- a university that claims to endorse professors' duty to "protect [their students'] academic freedom" -- operate this way? The withdrawal of funds is obviously an attempt to get the newspaper to stop saying things the administration dislikes. The requirement of faculty prescreening confirms that RWU wants to censor student views. And if the speech really creates a "hostile environment," then the University wouldn't just be claiming a right not to fund it. After all, according to the Student Handbook, "harassment" (which "hostile environment" generally refers to) is actually grounds for disciplining students -- the Handbook prohibits, in relevant part,

Harassment of an individual or group, where the action is a course of conduct . . . which seriously . . . alarms a person or group.

Likewise, according to the RWU computer use policy, students may not use RWU computers to, among other things:

a. Infringe upon the rights of another person. Harass, intimidate, threaten, or slander any individual or group.

b. Transmit or make accessible material, which in the sole judgment of the University, is abusive, offensive, pornographic, profane, or sexually offensive. . . .

e. Harass via sending or posting annoying, threatening, libelous, sexually, racially, or religiously offensive messages. . . .

     So the university is trying to stop groups from expressing viewpoints that the university concludes contain "hate" or "create a hostile environment" (note again the lingo of hostile environment harassment law, spreading from workplaces to universities and beyond) for certain groups -- which presumably means messages that "seriously alarm" groups, "slander" them, or are "sexually, racially, or religiously offensive" (since that's what the University seems to view as "harassment").

     Somehow, the university claims that this can coexist with "the right of campus organizations to hold different points of view and to disagree," but obviously there are certain points of view and certain disagreements that the university wants to banish. If you criticize homosexuals -- if you are "anti-Islamic" -- if you express views that the university thinks are "racist" (I wonder exactly what those are) -- you risk defunding, being labeled a harasser (one who creates a "hostile environment"), and, if I read the Student Handbook right, potential discipline and loss of computer access.

     This is not, it seems to me, how debate on gay rights, or for that matter on race or on Islam should proceed -- by trying to shut out one set of voices, while supposedly "affirm[ing] the right of campus organizations to hold different points of view and to disagree."

 
[Randy Barnett, 10/29/2003 06:37:37 AM]
Restoring the Iraqi Constitution: In today's OpinionJournal.com (available for free with registration), Bernard Lewis and R. James Woolsely offer an interesting suggestion of how to speed the Iraqi transition towards constitutional government:

. . . There may be a path through this thickening fog, made thicker by the rocket and suicide-bombing attacks of the last three days. It is important to help Ambassador Paul Bremer and the coalition forces to establish security. But it is also important to take an early step toward Iraqi sovereignty and to move toward representative government. The key is that Iraq already has a constitution. It was legally adopted in 1925 and Iraq was governed under it until the series of military, then Baathist, coups began in 1958 and brought over four decades of steadily worsening dictatorship. Iraqis never chose to abandon their 1925 constitution--it was taken from them. The document is not ideal, and it is doubtless not the constitution under which a modern democratic Iraq will ultimately be governed. But a quick review indicates that it has some very useful features that would permit it to be used on an interim basis while a new constitution is drafted. Indeed, the latter could be approved as an omnibus amendment to the 1925 document. . . .

While I find their idea promising, I do have a quarrel with the last sentence in this summary of their proposal. As historian Edmund Morgan emphasizes in his wonderful book, Inventing the People (which I highly recommend), and as our founders well understood, constitutions are meant to govern legislatures and the other branches of government and should not be modifiable by them without approval from some outside body. In our case it was state constitutional conventions; other alternatives are possible including multiple referenda. But it is of utmost importance that no precedent be established that the constitution can be altered or amended by even a super majority of the body it is most needed to constrain.

 
[Jacob Levy, 10/29/2003 05:52:31 AM]
Oxford prof suspended: Following up on a much-blogged-about story from a few months ago:

According to the Chronicle (subscription required) Oxford University has suspended Andrew WIlkie for two months without pay, and he has resigned from the fellowship of Pembroke College and from its governing body, after an investigation into his refusal to consider a graduate application from an Israeli.

Choice quotes from the article:

According to a statement issued by the university, "This ruling reflects that there can be no place for any form of discrimination within the University of Oxford other than on the grounds of merit.

(When's the last time you heard an American university in a moment of high passion about equal opportunity remember to insist that "discrimination" isn't always a bad thing?)

the Oxford University Student Union released a statement arguing that the sanctions imposed on Mr. Wilkie were insufficient. The student union also called on Oxford to require equal-opportunity training for the entire university staff, and it criticized the "informal nature of admission into graduate-study groups" as a process that makes discrimination like Mr. Wilkie's possible.

Hurm. Is there any evidence that Oxford has a faculty-wide problem with not understanding antidiscrimination codes? Training for the entire (academic?) staff of the university in response to one e-mail-- that, as I recall, even Wilkie pretty quickly realized was out of bounds, not that that excuses his actions-- smacks of overreaction.
The other question-- the informal and personalized nature of graduate admissions-- is more difficult. I may blog further about it-- I have to think about what's appropriate. But thought I'd post the news, in any event.

 
[Tyler Cowen, 10/29/2003 05:09:24 AM]
The new Charles Murray book: I started Human Accomplishment: The Pursuit of Excellence in the Arts and Sciences, 800 B.C. to 1950 on a long plane trip, and found it gripping reading. In a nutshell, the book exalts the West, capitalism, Christianity, and the creative human spirit. The very best parts are the pages that show just how concentrated in space and time European high culture has been. Germany, France, Italy, and the Netherlands account for an astonishing percent of the total. Throw in Vienna, if you wish.

Murray essentially has written two books bundled into one. The first measures artistic achievement by looking to the secondary literature, namely who is cited and discussed. Murray then uses statistics to see which historical features correlate with artistic and scientific achievement. Commerce, cities, and war all show positive correlations with achievement. The first two correlations I already knew, the third result on war I don�t believe. The seventeenth century, for instance, had much war, and much achievement, but I don�t credit war here. It turns out that the number of previous peers in a given field, in a particular geographic area, is the strongest predictor of subsequent achievement in that area. This may be an emulation effect, or simply that the preconditions for notable achievement persist in a geographic area through time.

Unlike some critics, I have no objection to Murray�s methods, his desire to measure achievement, and his pro-Western findings. Instead he spends too much time setting up his methods and apologizing for them, and not enough time cracking the data. One reviewer calls this part of the book �tiresome.�

The second part of the book starts on p.391, and it will prove of more interest to most readers. Murray forgets about the statistics and eloquently defends the importance of the worldview of the artist, a belief in goodness, and a belief in transcendence. There is no formal evidence at all, many loose claims, and these seventy pages could have been, and should have been, a large book of their own. They leave you hungry for more, and many readers will have an objection on every page. He ends the book by citing the medieval stone masons, who carved beautiful sculptures on the top of churches, or in their hidden parts, because they believed that God was watching.

My bottom line: On the plus side, I read it straight through, and could blog about it for a month or more. On the down side, it is too unwieldy for the general reader and has too many loose ends. But do take a look, there is certainly something for you to sink your teeth into.

 
[Tyler Cowen, 10/29/2003 04:40:33 AM]
Rorty reviews Posner: Read here. Philosopher Richard Rorty defends romance and idealism against Posner's pragmatism, and offers the usual whacks at the Bush Administration. Thanks to www.politicaltheory.info.

Tuesday, October 28, 2003

 
[David Bernstein, 10/28/2003 11:06:54 PM]
National Review Review: The Oct. 27 issue of NR has a nice review of You Can't Say That! The review is not yet online, but here is a brief highlight: "This excellent book demonstrates that, in case after case, 'activists' for one cause or another have shown a willingness to trample on the rights of others .... The book offers a wide array of these horror stories; against them all, Bernstein offers a reservoir of common sense and fair play."

 
[Eugene Volokh, 10/28/2003 09:46:52 PM]
Leading "peace movement" group admits that it supports the enemy: International ANSWER, which co-organized last Saturday's Washington protest, now openly admits that it wants "the Iraqi anti-colonial resistance" -- which, as Michael Totten points out, apparently consists of "three primary groups[:] Saddam�s Baathist remnants, local theocratic Islamists, and foreign foot soldiers for Al Qaeda" -- to win:

The anti-war movement here and around the world must give its unconditional support to the Iraqi anti-colonial resistance.

Yup, that's right. They fully admit it: They want people to give unconditional support to our nation's enemies, and a particularly evil set of enemies at that. (What do you think will blossom in Iraq if "the Iraqi anti-colonial resistance" will win? Democracy? Religious freedom? Women's equality? Gay rights? Free speech? "Civil rights & civil liberties," which the International ANSWER Web site urges people to defend?)

     Really, as others (notably Glenn Reynolds) have said, they're not anti-war, they're just for the other side. That's not hyperbole or guesswork; that's the literal, admitted truth. By their own admission, they are our nation's enemies, in a time when our soldiers are being killed. Remember that when you next hear about a supposed "anti-war rally"; remember who is using the protesters as dupes, and what the rally organizers' true goals are.

     Thanks to Andrew Sullivan and Michael Totten for the pointer.

 
[Eugene Volokh, 10/28/2003 09:12:54 PM]
Misreading polls at NRO: A National Review Online item by Byron York refers to a poll conducted by Democratic strategist Stanley Greenberg, and says:

[M]ost analysts have ignored what may be the poll's most stunning finding.

The survey focused on Democrats who take part in the nominating process in Iowa, New Hampshire, and South Carolina. And, Iraq aside, what it found was that Democrats, at least those who are most active in politics, simply don't care about terrorism.

Just don't care.

In one question, pollsters read a list of a dozen topics � education, taxes, big government, the environment, Social Security and Medicare, crime and illegal drugs, moral values, health care, the economy and jobs, fighting terrorism, homeland security, and the situation in Iraq � and asked, "Which concern worries you the most?"

In Iowa, one percent of those polled � one percent! � said they worried about fighting terrorism. It was dead last on the list.

Two percent said they worried about homeland security � next to last.

In New Hampshire, two percent worried about fighting terrorism and two percent worried about homeland security. In South Carolina � somewhat surprisingly because of its military heritage � the results were the same.

Democrats in each state were then given the same list of topics and asked to name their second-most concern. Fighting terrorism and homeland security still placed near the bottom of the list.

     The trouble, as Michael Drake (Strange Doctrines) points out, that the numbers as the article itself reports them simply do not support the "Just don't care" assertion. The poll simply shows that most of the politically activist Democrats don't place terrorism or homeland security at the top of the list of twelve topics, or apparently in number two. But that says next to nothing about whether those Democrats "care about terrorism." You can care a lot about terrorism, and yet conclude that the economy, crime, education, or the situation in Iraq worries you more. In fact, even in 2001, non-terrorist crime took more American lives than terrorism, by a factor of about five. One can of course still plausibly think that terrorism is more worrisome in various ways -- for instance, it poses the small risk of truly vast carnage -- but one can also plausibly put crime at the top of the list, and terrorism below it, or even crime and education at the top of the list, followed by terrorism. And even if that ranking shows, in your view, a mildly misplaced sense of priorities, it most certainly does not mean that "Democrats, at least those who are most active in politics, simply don't care about terrorism. Just don't care."

     As the Strange Doctrines post points out,

It's as if a representative group of Americans were asked for their number one priority from among a list including, say, family and friends, and then someone were to conclude that Americans don't care about friends when the respondents ranked family first.

This is a pretty serious error, it seems to me -- and, unfortunately, the linchpin of the article's argument. I generally much like NRO, but here they've seriously slipped.

 
[Eugene Volokh, 10/28/2003 08:04:23 PM]
Help! My radio has taken control, and is coercing me! From the Bismarck Tribune:

Democratic lawmakers in Washington are asking a North Dakota radio personality to take on Rush Limbaugh, Sean Hannity and other conservative talk show hosts.

Ed Schultz, who earlier considered running for governor, has been tapped by national Democratic leaders for a talk show to start in January.

Democratic lawmakers in Washington are raising money for the show, and Democrats have pledged about $1.8 million over two years to get it off the ground, Schultz said Monday. He said a half-dozen stations are looking at whether to carry it.

"The Democrats are getting the tar beat out of them constantly by Limbaugh and Hannity, and they feel they don't have a platform," Schultz said. "There's this conservative mantra that's being jammed down the throats of the American people, and the other side of the story is not being told."

     Nice framing: It's not that lots of American people choose to listen to conservative talk show hosts -- it's that the conservative message is being jammed down their throats. Vivid metaphor; too bad it doesn't quite match the reality.

     Of course, "jammed down their throats" is a metaphor. But metaphors are used for a reason; while the speaker expects that readers realize the statement is figurative, the speaker's hope is that the reader accepts the underlying premise behind the figure of speech. When we say someone is a wolf in sheep's clothing, we don't literally mean that he's a large land mammal related to a dog, wearing wool. But we do mean that he's a figurative wolf (i.e., someone dangerous) wearing the clothes of a figurative sheep (i.e., someone unthreatening). "Jammed down their throats" figuratively means "forced onto people who aren't really willing to hear it." And that is nearly the opposite of how radio actually works -- people who really believe that this is how right-wing talk show hosts have gotten their influence are just deluding themselves.

     Thanks to Eye On The Left, which got there first, and to Mike Daley for passing it along. I should mention, though, that I also don't agree with Eye On The Left's statement that "the phrase ['jammed down the throats'] does apply when you have members of a political party raising money to pay radio stations to carry an unpopular program (and message)." No, that's not jamming the message down anyone's throats, either. So long as the radio only works when you turn it on, it's a nice, voluntary business all around, whether it needs a subsidy or not.

 
[Tyler Cowen, 10/28/2003 05:44:31 PM]
More on the top ten list A few of you have written me and asked me more specifically what I thought of David Frum's list of landmarks in contemporary culture.

Here goes, my comments are in bold:

1. A. Solzhenitsyn, One Day in the Life of Ivan Denisovich. A wonderful book, but too narrowly political, not in my top ten by any stretch. I have trouble putting a novel on this list. Our time offers many very very good novels, but I wouldn't cite any one of them as up with the all-time greats, such as Joyce or Cervantes. Pale Fire was perhaps the last stunning novel..
2. Frank Gehry�s Guggenheim Museum at Bilbao. I haven't been there, but by all photos and accounts a very strong masterpiece, an easy candidate for my list.
3. The paintings of Jackson Pollock. If you didn't see the Pollock retrospective at MOMA a few years, you won't know how good he is. A good pick.
4. The Godfather I & II. I prefer I to II, but in any case these are in the running.
5. C. Milosz, The Captive Mind. Ehh.
6. West Side Story. I admit it might be good, but I can't stand it. I wouldn't sit through it for $100. Bernstein's composing pulls too many sleazy tonal tricks, and the book is now cliche.
7. M. Kundera, The Book of Laughter and Forgetting. I enjoy his books but for me he is a lightweight.
8. The collected �I Love Lucy.� Good pick, but I think you have to go with "Highlights" rather than "collected." Don't forget Lucy on the assembly line, trying to make, what was it, doughnuts? Or Vitameenie-Vegamin? I would put Seinfeld first, though, it is darker and more interesting, at least when they don't treat Kramer like a modern-day Fonzie substitute. It is the best ensemble comedy, ever, I think.
9. VS Naipaul, A Bend in the River. Stronger and deeper than the other books selected.
10. Watson and Crick�s discovery of DNA. Surely this one belongs in a different category.

If I get a top ten list from you that I really like, I will offer it up.

 
[Eugene Volokh, 10/28/2003 05:20:30 PM]
Dec. 1945 -- U.S. Out of Europe, Now: I've got a suggestion, or, better yet, a moral imperative:

I'd like to propose a simplification of the entire [US military in Europe] debate. It's this: If the reason we went into [Europe] really, truly was that the [Roosevelt] administration really, truly believed [the Nazis were a threat to the world], then there is nothing of which the administration need feel shamed -- but the United States must immediately leave [Europe].

We now know there is no [more Nazi military might in Europe] . . . . If we went in to stop [the Nazis], and now know [they do] not exist [any more], then our military must depart immediately. This is the only honorable course.

Alternative: The administration admits that other reasons, possibly valid, were the real reasons all along.

     What, you say? It's a bad idea? We shouldn't leave the Europeans poor and starving? We should stay longer to help them rebuild, and protect them against new threats (such as the Soviets) and also against some of the old ones (such as the Soviets)? It's more "honorable" to save the Europeans from a new round of slavery, anarchy, or hunger, even if this means that some people will complain that we're acting "imperially," creating "satellite states" that we can use in our future geopolitical battles, and just looking for an excuse to leave our troops in Europe for, oh, about 50 years?

     Well, yes, I admit it -- my error. The supposedly "honorable" suggestion isn't terribly logical. After all, we might have gone in for one reason, but find that once we're in, we have to stay for another (for instance, help people rebuild, and prevent future menaces). Or we might have gone in for several reasons, of which one was the most important one, and the one that justified our intervention, and was very much a "real reason[]"; but there were also other secondary reasons, that now justify our staying even if they wouldn't have (at least in the eyes of some us) by themselves justified our entering.

     And more importantly, the supposedly "honorable" suggestion is far from honorable: There's nothing much honorable to leaving the Europeans at the Communists' tender mercies.

     This little hypothetical is brought to you in reaction to Gregg Easterbrook's latest post at TNR Online (thanks to Steve Sachs for the pointer) -- and, yes, I know that there's more debate about the true reasons for going into Iraq than there was about the true reasons for going into Europe, but I think the analysis above nonetheless shows the problem with the "if the reason for going in no longer applies, we must pull out" logic:

IT'S THIS SIMPLE: COME CLEAN ON WMD, OR LEAVE IRAQ: I'd like to propose a simplification of the entire Iraq/WMD debate. It's this: If the reason we went into Iraq really, truly was that the Bush administration really, truly believed Saddam possessed weapons of mass destruction, then there is nothing of which the administration need feel shamed --but the United States must immediately leave Iraq.

We now know there is no significant banned-weapons program in Iraq. Any serious manufacturing facilities for banned weapons would have been detected by this point. If we went in to stop a banned-weapons program genuinely believing one existed, and now know one did not exist, then our military must depart immediately. This is the only honorable course.

Alternative: The administration admits that other reasons, possibly valid, were the real reasons all along.

Curiously, the word "simple" (as in "IT'S THIS SIMPLE") has, in this context, two possible meanings.

 
[Randy Barnett, 10/28/2003 02:24:35 PM]
What makes Star Trek so different? Alan K. Henderson has responded to my earlier posts (here and then here) on what makes Star Trek so different than other sci-fi space TV shows on ShastaCastel.com. His post then provoked further discussion on his blog. His reply includes this:

With one exception, the others fail to grow characters and character relationships as Star Trek so masterfully does. Everyday normal life is hardly seen on the space ship/moon base/futuristic Earth. Babylon 5 is the exception, but due to its weirdness it has little appeal outside of fans of of "hard" sci-fi. Star Trek is exotic but not (ahem) alienating; the viewers can relate to the plots even if they can't relate to gaseous blood-sucking creatures and overloaded plasma relays.

(Any responses to this opinion should be directed his way.) I also found it mildly surprising that probably a majority of readers who responded to my Star Trek posts were female. So far as I know, this is not the stereotype of Star Trek fans.

 
[Tyler Cowen, 10/28/2003 11:37:19 AM]
Contemporary landmarks: "Without disputing Charles� [Murray] main theory, his challenge makes for an interesting parlor game. So here�s my list, in no particular order, of 10 things from 1950 to 2000 that will still matter two hundred years hence:

1. A. Solzhenitsyn, One Day in the Life of Ivan Denisovich.
2. Frank Gehry�s Guggenheim Museum at Bilbao.
3. The paintings of Jackson Pollock.
4. The Godfather I & II
5. C. Milosz, The Captive Mind.
6. West Side Story.
7. M. Kundera, The Book of Laughter and Forgetting.
8. The collected �I Love Lucy.�
9. VS Naipaul, A Bend in the River.
10. Watson and Crick�s discovery of DNA.

Also (and in honor of Virginia Postrel) almost the entire corpus of mid-century decorative arts: the Concorde jet, the UN building, and the 1959 Cadillac Coup de Ville."

That is David Frum from National Review.

Not a bad list by any means, but my thoughts run more toward early John Woo movies ("The Killer,"), the Loveless CD by My Bloody Valentine, Brice Marden, Felix Gonzalez-Torres, and Finnish architecture, to name a few. The field of literature gives me the toughest fits, it is hard to pick what will last, and hard to imagine it will top the 1920s (Kafka, Proust, Mann, among others) or even come close. Movies, music, and design are, to my eye, the richest fields in recent times. I'll be writing more on this soon.

 
[Eugene Volokh, 10/28/2003 08:25:20 AM]
Saints and lawyers: Overlawyered.com -- the leading commentary on the excesses of litigation -- writes (see the site for the links), quoting an Australian journalist:

"If canonization of Australia's Mary MacKillop, who died in 1909, is taking a relatively long time, compared to that of Mother Teresa, six years dead, part of the reason is that Indians are less litigious." Among legal fears that might slow down the process at various stages: "A doctor who treated an individual might be miffed by claims that the cure had no medical explanation. There is also privacy legislation, which might be referred to by relatives objecting to church investigators nosing into the departed one's affairs. . . . According to Sister Maria Casey, who is handling the processing of Mother Mackillop, 'it is not very easy these days because of threats of litigation'". (Malcolm Brown, "Saint? Call the lawyers", Melbourne Age, Oct. 27; longer version, Sydney Morning Herald).

No word, however, about whether the devil's advocate's malpractice premiums have gone up.

 
[Sasha Volokh, 10/28/2003 07:50:49 AM]
For Edwin Arlington Robinson and "Zork" fans: The Richard Corey interactive adventure. Both silly and disturbing. Link through the lovely and talented Stacey Tappan, go see her in Siegfried at the Chicago Lyric Opera this November if you're in Chicago.

 
[Eugene Volokh, 10/28/2003 07:33:12 AM]
"The Useless New Ads for the $20 Bill": A nice and well-written piece in Slate's Ad Report Card e-column.

 
[Tyler Cowen, 10/28/2003 06:53:41 AM]
Watch what you say! "I didn't realize just how irresponsible we normally are in everyday private conversations until I encountered L.A. blogger Luke Ford. Ford goes around to parties with a tape recorder and immediately posts snatches of dialogue on the web. His reporting is impeccable. He has faithfully quoted me libeling dozens of people on two separate occasions. The second time I was even trying to be careful--but I was still operating under the conversational illusion that the range of my statements was limited. "

From Kausfiles. Here is Luke's blog. I've become more careful about what I say, and that is before having read this article.

Addendum: Eugene linked to this same article three minutes before I did, see his legal analysis immediately below.

 
[Eugene Volokh, 10/28/2003 06:50:56 AM]
Mickey Kaus on blogging, writing, speaking, and editing: A very good Slate piece -- calm, thoughtful, and persuasive. I don't entirely agree with the legal analysis, but the other points Mickey makes, which are the heart of the piece, are excellent.

     Since I'm on the subjection of the legal analysis, though (and I stress again that it's just a small and tangential part of Mickey's piece, which you ought to read), four thoughts:

     1. Defamation law has indeed historically recognized the distinction between writing (libel) and speech (slander), and has made it somewhat harder, though not impossible, to sue based on the latter (though Mickey is right that the main barrier to lawsuits based on oral defamation has been the difficulty of learning and proving exactly what was said). I don't think that this has been seen a constitutionally mandated distinction, but it has been one that tort law has recognized.

     2. This having been said, I doubt that it would be feasible or helpful for courts to try to distinguish print from blogging -- among other things, there would be too many complicated line-drawing problems between the two. I certainly wouldn't recommend it as a constitutional matter.

     3. We should, however, press for treating blogging as at least equal to other print media for libel purposes. It already is equal as to the constitutional rules; but some statutory protections that go beyond what the First Amendment requires, such as retraction statutes, are written in ways that are limited only to a few media. I discuss the issue in this column, and cite the two reported cases that I've found on the subject, two cases that seem to point in opposite directions.

     4. Finally, note that the law already provides more protection to bloggers than to print journalists: Service providers and other hosts are immunized by 47 U.S.C. sec. 230 (at least as it has been interpreted) from all libel liability for the speech of their users (though not for the speech of their employees), while newspapers and even bookstores are not. Part (though a small part) of why you have more freedom as a blogger than as a letter-to-the-editor writer is that while you could still be sued for libel, your publisher (your ISP or blogger.com) doesn't run that risk. Not perfect protection by any means, and not available for employee-bloggers like Mickey, but it's something.

Monday, October 27, 2003

 
[Sasha Volokh, 10/27/2003 05:26:06 PM]
Speaking of poems, if you're interested in nice poems (1) condemning the distribution of wealth or (2) favoring peace, you may enjoy these by Hilaire Belloc. First, from Verses and Sonnets (1896) (I especially enjoy the first two lines of the second stanza):

The Justice of the Peace

Distinguish carefully between these two,
This thing is yours, that other thing is mine.
You have a shirt, a brimless hat, a shoe
And half a coat. I am the Lord benign
Of fifty hundred acres of fat land
To which I have a right. You understand?

I have a right because I have, because,
Because I have -- because I have a right.
Now be quite calm and good, obey the laws,
Remember your low station, do not fight
Against the goad, because, you know, it pricks
Whenever the uncleanly demos kicks.

I do not envy you your hat, your shoe.
Why should you envy me my small estate?
It's fearfully illogical in you
To fight with economic force and fate.
Moreover, I have got the upper hand,
And mean to keep it. Do you understand?

And second, from Verses (1910). This has so many contemporary details that it's somewhat dated, but one can get the idea anyway.

Verses to a Lord who, in the House of Lords, said that those who opposed the South African adventure confused soldiers with money-grubbers

You thought because we held, my lord,
An ancient cause and strong,
That therefore we maligned the sword:
My lord, you did us wrong.

We also know the sacred height
Up on Tugela side,
Where those three hundred fought with Beit
And fair young Wernher died.

The daybreak on the failing force,
The final sabres drawn:
Tall Goltman, silent on his horse,
Superb against the dawn.

The little mound where Eckstein stood
And gallant Albu fell,
And Oppenheim, half blind with blood,
Went fording through the rising flood --
My Lord, we know them well.

The little empty homes forlorn,
The ruined synagogues that mourn,
In Frankfort and Berlin;
We knew them when the peace was torn --
We of a nobler lineage born --
And now by the all the gods of scorn
We mean to rub them in.

UPDATE: A Mrs. Tilton from England [UPDATE 2: Oops, Ireland] says (and I agree) that the second poem isn't philosophically pacifist or anything (see the third line); Belloc just opposed the Boer War and thought it was a conspiracy of the Moneyed Interests. Mrs. Tilton also says he saw Jewish financiers as a main component of the Moneyed Interests; these are the Ecksteins and Oppenheims of the poem, who in fact weren't dying at all. She says Belloc was "a dark and inveterate Jew-hater," though he may have himself been of distant Jewish descent (Bloch).

My own research: Wernher, Beit was a powerful South African financial house, and Eckstein and Oppenheim were a South African mining syndicate and the publisher of the pro-war Daily News, respectively. The Albu Brothers owned General Mining. Goltman, I haven't found.

Still, none of this detracts from the poem's value as a "We went to war because special interests pushed us there" ditty.

UPDATE 3 (for update 2, see the first line of update 1): Reader Dan Domenico sends a link to a Hilaire Belloc allusion in a column of Mark Steyn's, about the vanishing Sudanese penis.

 
[Eugene Volokh, 10/27/2003 05:16:12 PM]
National Association of Black Journalists condemns Hampton University: I'm very glad to hear it. Thanks to En Banc for the pointer. (See today's 10:06:48 AM post for more on this story.).

 
[Sasha Volokh, 10/27/2003 03:38:54 PM]
Looking for some favorite French poems: I'm trying to get some of my long-time favorite poems together in one place, and I can't find some of the French poems I studied and liked when I was in high school. Do any of you have a copy? If so, let me know. It would be nice to have not only the words but also a printed copy that has "authoritative" punctuation, though the latter isn't essential.

The first one is by Jules Supervielle and is called, possibly, "D�barcad�re" or "D�barcad�res" (unless that's the name of the poetry collection it's from). It begins:

Serai-je un jour celui qui lui-m�me mena
Ses fortunes m�rir aux tropicales plages?
Je sais une tristesse � l�odeur d�ananas
Qui vaut mieux qu�un bonheur ignorant les voyages.

L�Am�rique a donn� son murmure � mon c�ur.
Encore surveill� par l�enfance aux entraves
Prudentes, . . . . . . . une ardeur
Sans y m�ler l�odeur de mangues et de goyaves.

That's half or more (it might be a sonnet); the dots in the seventh line are a bit I don't remember. Supervielle was a French poet who grew up in Uruguay, and this is his homesickness poem for South America: "Will I one day be he who himself led his fortunes to ripen on the tropical beaches? I know a pineapple-scented sadness that is better than a happiness ignorant of travel. America gave its murmur to my heart. Still watched by childhood with its prudent fetters, I can't imagine an ardor without mixing in the scent of mangos and guavas."

The next one is by Raymond Queneau, is about the rain, and begins:

Averse averse averse averse averse averse
Pluie � pluie � pluie �
� pluie � pluie � pluie
Parapluie � parapluie � paragoutte �

This means, roughly, "Downpour downpour downpour downpour downpour downpour / Rain o rain o rain o / O rain o rain o rain / Umbrella o umbrella o umbraindrop o."

Finally, I'm also looking for another one by Queneau that begins:

Y avait une fois un taxi
taxi taxi taxim�tre
qui circulait dans Paris
taxi taxi taxi cuit

("Once there was a taxi / taxi taxi taximeter / which drove around in Paris / taxi taxi taxi cooked") I'm pretty sure I know the whole poem, but I just want to make sure; also, I think, but I'm not sure, that the title is the first line backwards: "Ixatnu siofenut i avay."

So let me know if you've got copies of any of these poems on you. Thanks!

UPDATE: The invaluable Will Quale, reference librarian in training, tells me that D�barcad�res is another name for the Supervielle collection Gravitations. Pr�c�d� de d�barcad�res; I've seen that in the lye-berry and will check to see whether the poem I wanted is there. Also, "Ixatnu siofenut i avay" is in the Queneau collection Courir les rues, while the "averse" poem, called "Il pleut" ("It's raining"), is in the Queneau collection Les ziaux, also listed as L'instant fatal, pr�c�d� de Les ziaux.

Most importantly, Will tells me that "Ixatnu" has been set to music. Woohoo!

 
[Eugene Volokh, 10/27/2003 03:25:44 PM]
Republicans sending precinct workers into black districts: Ralph Luker cites the story and its critics (for instance, Josh Marshall and two others, see Luker's post), and writes:

Of course, if what Kentucky Republicans want to do is suppress the African American vote, they are mistaken, but the story cuts close to my heart because I've been both a civil rights activist and a Republican precinct captain both in Jefferson County, Kentucky, and Orange County, North Carolina. . . .

When I captained a bi-racial precinct in Orange County, North Carolina, I helped elect Chapel Hill's first African American mayor, Howard Lee, in a non-partisan local election. In doing so, we turned out a record breaking number of African American voters. But when it was time to further organize the precinct, it was impossible to recruit any African Americans to serve as Republican precinct officers. We had few African Americans registered as Republicans and I was determined to get one of them to work with me. Community pressure was such that none of them would do it. I'd make an appointment to meet with them and might as well have been the bill collector or an insurance man. Nobody home, don't know when she'll be here ... etc, etc, etc.

Like it or not, Republicans have a right to be represented at the polls in largely African American precincts. If African American Republicans won't risk community pressure to represent the party, it will send people into those precincts to represent it. . . .

 
[Jacob Levy, 10/27/2003 01:53:30 PM]
A thought about academic group-blogs: I want to stress that the following question isn't motivated by any particular problem I'm facing. Indeed, since I'm a disciplinary oddball on the Conspiracy, I'm somewhat unlikely to face it (though academia is a small world and one never knows). This an attempt to stimulate some thought about norms before particular cases arise.

For purposes of academic conflict-of-interest norms, what sort of relationshio do co-bloggers have to one another?

To take two relatively well-known kinds of cases:

One wouldn't ordinarily ask an academic's frequent co-author to act as an impartial referee of his or her career, say, for purposes of hiring, tenure, or promotion to full professor, or for a variety of kinds of grants and fellowships. There are some collaborators who work so frequently and deeply together that a single-authored paper by one of them probably shouldn't be sent to the other for refereeing, either-- and if it is, the co-author has an obligation to at least mention the relationship to the journal's editor. This varies a little by discipline-- in fields where coauthorship is very common, it might be that the only competent referees of an article are people who've coauthored at some point with the current paper's primary author. But even in such fields, I assume one wouldn't ask a collaborator who is a co-PI on the overall study to referee a paper growing out of the study. (In some disciplines all the co-PIs on the big study get their name put on all the papers growing out of it anyways-- but this is not universal.)

On the other hand, people who jointly serve on the editorial board of a journal aren't thought to have any kind of conflicts of interest just as such. Never need to be mentioned or disclosed; just not an issue. Same for peopel who've been on a conference panel together.

So-- what about co-bloggers? Is this an activity that needs to be mentioned? One that disqualifies passing certain kinds of judgments?

I don't even have a tentative view here. Just asking. If people e-mail me responses and thoughts (or blog them elsewhere) I'll blog 'em en masse in a couple of days. If anyone has any stories in which something like this has already come up, I can of course strip off identifying information before posting.

UPDATE: The invitation for comment is not limited to academic group-bloggers! Indeed, I'm especially interested to hear the perceptions of academic non-bloggers (though by definition they'd be blog-readers). You're in the position of depending on disinterested opinions for, e.g., external evaluations of hiring decisions, publication at presses and journals, and so on. Would you worry about receiving such an opinion from one co-blogger about another? Would you view it as a violation of disinterestedness? Would you object if the co-blogging relationship wasn't disclosed, and you found out about it later?

I suspect many or most of the Timberites have never met each other. I've met very few of my co-Conspirators (well, to my knowledge, since we have some pseudonymous posters). Does that make a difference?

UPDATE AGAIN: Kieran takes up the invitation, and sparks a good comments thread, too. Kieran's judgment:

Being a co-blogger is not quite the same as being a co-author, and it�s not quite the same as being in the same department. But it seems closer to either than simply having been on the same conference panel. It�s more like, say, having been at grad school together. So my feeling is that an editor might legitimately weigh it against you when deciding whether to send you a paper, but it ought not to count as seriously as co-authorship or being a colleague, and reviewers shouldn�t have to fess up to it as a matter of course.

Some of the interesting discussion that follows is about how having been in grad school with someone counts. I've once declined to referee a paper on the grounds that the author was a grad school friend and the paper was one I'd heard him present and talked with him about so many times that I didn't think I could be disinterested and dispassionate; in my heart I knew I was cheering for the paper to get published in a top journal just 'cuz. But I haven't always recused myself just because a candidate was, or I recognized a paper as having been written by, even a close friend from grad school. I give a heads-up to the editor or equivalent, but that's all.

 
[Eugene Volokh, 10/27/2003 01:47:20 PM]
More on writers, publishers, amazon, and book searches: Steve Bainbridge has a further post on the subject.

 
[Tyler Cowen, 10/27/2003 01:04:56 PM]
No longer "jaw hits floor": According to one new poll, college students are now more politically conservative than the nation as a whole. Here is a summary of the results. Here is the survey itself.

And why not? It is common parlance that many people joined the anti Vietnam war movement "to get laid," but it doesn't take much thought to realize that the young have the greatest stake in economic growth. Now if only the Republicans would adopt some modicum of fiscal responsibility, maybe the affiliation would make more permanent sense...

 
[Juan Non-Volokh, 10/27/2003 10:28:14 AM]
Bernstein for the Bench: Just because Bush hasn't nominated Eugene for the Ninth Circuit yet, there's no reason not to join Instapundit's nascent campaign to get David a recess appointment for the D.C. Circuit.

 
[Eugene Volokh, 10/27/2003 08:51:47 AM]
More rock, paper, scissors: By the way, I never got this -- what's with this paper beats rock thing, anyway? I understand the scissors cutting the paper. I understand the rock blunting the scissors. But so the paper wraps around the rock; big whoop-de-doo. Like the rock is going to care.

UPDATE: I find this explanation, er, not fully persuasive.

 
[Sasha Volokh, 10/27/2003 08:28:09 AM]
Chaucer says: There was never chicken wallowed in cordon bleu as I am wallowed in love.

 
[Jacob Levy, 10/27/2003 08:22:10 AM]
RIP John Hart Ely, one of the most important left-liberal constitutional scholars in postwar America, died Saturday at 64. Ely was the author of the very-well-known Democracy and Distrust, apprciated by two decades of students of law and politics as the most sustained elaboration of a "footnote four" approach to constitutional jurisprudence.

"Footnote four" is a footnote to Harlan Fiske Stone's opinion in U.S. v Carolene Products:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Just a year after the Supreme Court's retreat in the face of FDR's assault, and in a case that didn't involve any of the questions discussed in the footnote, Stone placed a marker for an activist future for the court in what Ely would later call "participation-oriented, representation-reinforcing" jurisprudence. There's a great deal to criticize here, and I'm sure some of my co-conspirators have written serious critiques of Ely. But there's no gainsaying his work's importance and influence.

 
[Randy Barnett, 10/27/2003 07:07:58 AM]
Solum on Bernstein on Janice Brown: On his Legal Theory Blog today, Larry Solum has an interesting commentary on David's post below on the NYT's treatment of judicial nominee Janice Brown. Here is how it begins:

I worked extensively with Janice Brown several years ago when she was a member of the Commission on the Future of the California Judiciary. This was before her appointment to California Supreme Court--at the time she was serving as legal counsel to California's governor Pete Wilson. Brown was a quiet and intelligent presence on the Committee. I was serving as the author of a White Paper on alternative court structures, and towards the end of the interactive process of drafting, Brown provided several handwritten pages of sophisticated and thoughtful comments on the draft. Whatever you think about Janice Brown, you should not be hasty to reach the conclusion that she is a simple-minded blowhard for an extremist ideology. Quite the opposite, this is a quiet, sophisticated, and intellectual woman. . . .

 
[Eugene Volokh, 10/27/2003 07:06:48 AM]
Not the best way to run a university: From The Richmond Times-Dispatch (thanks to reader Toby Stern for passing along the cite to this article):

[T]he [Hampton University] student newspaper staff members were shocked when the hand trucks rolled in and bundles of their Oct. 22 issue were confiscated by the school's administration. . . .

This saga began when Hampton Roads media disclosed numerous health code violations at Hampton University's cafeteria.

Hampton Script editor Talia Buford figured that the student-run newspaper needed to be on top of this story.

So it printed a front-page story on the university passing a subsequent cafeteria inspection -- an article that included comments from acting HU president JoAnn Haysbert.

But Haysbert -- aware that the potentially embarrassing piece would be seen by alumni and parents during the week's homecoming festivities -- wanted her memorandum on the cafeteria matter on the front page.

"I took it as a request. And as a request, it was respectfully denied," said Buford, who referred readers of the front-page story to Haysbert's note on Page 3.

"And I thought that was going to be the end of it."

Not quite. The newspapers were seized before they could be distributed. Haysbert asked the staff to reprint the edition with her memo on the front. They refused. . . .

[Dr. Christopher Campbell, director of the university's Scripps Howard Journalism School,] said this culture is not uncommon among private, historically black schools such as Hampton, which don't have the same legal constraints as public institutions.

"At private schools, it's up to the university to decide whether the First Amendment is a good idea or not." . . .

On Friday, a compromise was reached: Haysbert's memo would run on the front page along with a disclaimer from the Script staff noting its objection. . . .

     This is a private university, so indeed the university administration isn't bound by the First Amendment. Moreover, this may not be quite a normal newspaper theft case, though I've heard it described that way in recent days: It's possible that, as a matter of property law, the university still owned the papers, and was thus just disposing of its own property -- it all depends on the legal relationship between the university and the newspaper.

     But in any event, this surely isn't a good way for the university to foster a climate of intellectual freedom or healthy debate, both things that I think are necessary for a university, and the university's students, to prosper. And I hope that prospective students and donors are more troubled by it than they would be even by health code violations at the cafeteria.

 
[Eugene Volokh, 10/27/2003 06:49:47 AM]
Rock, Paper, Scissors: The official World Rock, Paper, Scissors Society site is here. Thanks to Jonah Goldberg in The Corner for the pointer. My favorite item: The promotional poster archive, especially this:

See here for the historical explanation.

UPDATE: Dru Sefton of the Newhouse News Service, who wrote a piece about this a short while ago, tells me that there are indeed Rock, Paper, Scissors competitions, despite the site's looking like an elaborate (and pretty funny) joke. She writes that "They handle the 'sport' with much humor but it is, indeed, a real competition. And they have cool T-shirts!"

 
[Eugene Volokh, 10/27/2003 06:34:23 AM]
If you're a pastor, and you like porn, just don't try to hide your tastes by throwing the leftovers out your car window day after day:

A Greenwood minister has been cited with 20 counts of littering for allegedly tossing boxes once containing pornography into an alley behind a beauty shop.

The alley also was littered with hard-core pornography magazines.

Madison Avenue Church of God Pastor Allen D. Henderson admitted sporadically tossing bags containing the boxes from his car, Greenwood police Detective Eric Klinkowski said. . . .

Employees at Gabriel's hair salon, 150 N. Madison Ave., have found dozens of empty boxes. . . .

"It went on forever," [Julie] Worsham[, the beauty store owner,] said. "Sometimes it was two or three times a week, and sometimes it was multiple times a day."

Worsham said she became paranoid. "We didn't know if we had a stalker or what," she said. "We were worried about leaving at night. We were suspicious every time we had a new man who would come in, wondering if he was the one." . . .

Klinkowski said Henderson said he had no ill intentions.

"He told me he had an addiction to pornography," Klinkowski said. "It was his way of getting rid of it so that his wife, family and close loved ones would not find out he had this addiction.

"He said he had no intentions to harass anyone -- but just getting rid of his stuff." . . .

     As sin goes, I suspect that a pastor's viewing pornography isn't among the worst. But as stupidity (or, if you prefer, a subconscious desire to get caught and publicly humiliated) goes, this incident is right up there.

 
[Eugene Volokh, 10/27/2003 06:20:45 AM]
More on the Janice Brown cartoon: The co-publishers of blackcommentator.com wrote to me:

It was refreshing (and rare) to see that you (we assume it was you) were open to correction on the BC cartoon. The drawing appeared under our September 4 headline "A Female Clarence Thomas for the DC Federal Court?" The caption read: "News item: Bush nominates Clarence-like conservative to the federal bench." The two Clarences are identical, except for coif and clothing. They are positioned next to each other, and have the same facial expression. Nothing could be clearer than that the caricature was of Clarence Thomas. Yet the media almost uniformly followed the Orrin Hatch line, that we were depicting Brown as a "mammy-type" character. (That also appears to have been your initial impression.) It seems that people see what they expect to see, or what they have been told to see.

One can argue about our depiction of Thomas, but Janice Brown isn't in that picture, caricature-wise. We have since created Brown's very own cartoon, which will debut on Thursday.

Your site sent many thousands of visitors to our site. Thanks for the exposure, and for being fair and honest.

     I much appreciate my correspondents' kind words, but I'm afraid that their characterization of the cartoon is a bit too subtle for me to grasp. I take it that "Janice Brown isn't in that picture, caricature-wise" means that the caricature isn't supposed to be depicting Brown's facial features. But it seems to me quite clear that Janice Brown is in the picture in the sense that the figure on the left is supposed to be a representation of Janice Brown. (That's what being in a cartoon, it seems to me, is all about: Having a figure in the cartoon that's intended to represent you.)

     Perhaps "the caricature was of Clarence Thomas," in the sense that it drew on Thomas's face, but the point was that Brown is a copy of Thomas, no? If that's so, then we still have a fat-lipped figure who for some reason is wearing a heavy-afro-looking "fright wig," and who is meant to represent Janice Brown (even if the point is that Brown is really just Clarence Thomas in drag). Make of that what you will (see below for my ambivalence) -- but I guess I'm not quite sure what the "correction" here would be.

     For your reference, I reproduce the original post here:

This one is from the site The Black Commentator, and accompanies the People for the American Way / NAACP joint press release condemning Brown.

     I've never been quite sure what to make of complaints that cartoons exaggerate some stereotypical racial or ethnic features -- on the one hand, I can see why it might be offensive, but on the other hand, they are cartoons, and it's standard procedure for cartoonists to exaggerate everyone's features (though I've never understood why that's seen as so funny). Still, those who generally don't like cartoons that depict blacks with fat lips and vast Afros (and as best I can tell, Justice Brown has neither particularly large lips nor particularly large hair, so it's not like they're mocking her own well-known personal characteristics) might want to note this one.

UPDATE: A couple of readers suggest that I misunderstood the cartoon; one, for instance, suggested that it "does not seek merely to exaggerate racially stereotypical features . . ., but instead depicts Justice Janice Rogers Brown as Justice Thomas in drag with a fright wig." I suppose it might -- Brown's and Thomas's faces are supposed to look alike -- but I'm not sure why that explains either the fat lips (why not have normal lips on both of them?) or the fright wig / mega-afro (if you want Brown to be Thomas in drag, don't the other elements of the costume and the body already do the trick?).

FURTHER UPDATE: Reader Jason Rylander points out that I should have been clearer when I said that the cartoon is from the Black Commentator site, and accompanies the People for the American Way / NAACP press release -- it accompanies the release only on that site; the decision to combine the two seems to have been made the Black Commentator site operators, not PFAW or NAACP.

 
[Eugene Volokh, 10/27/2003 06:02:04 AM]
George Will praises Virginia Postrel's The Substance of Style, here.

 
[Eugene Volokh, 10/27/2003 04:29:22 AM]
How quickly we take things for granted: Kevin Drum (CalPundit) praises amazon.com's book search feature ("I am now willing to worship the ground that Jeff Bezos walks on") but notes:

However, at the risk of seeming churlish about this gift from the gods, it turns out there are a couple of hiccups. First, Amazon has available only 120,000 books so far. This sounds like a lot, but when I started experimenting by typing in random titles from my bookshelf, it took me nearly a dozen tries to finally find one that was searchable. When they get up to a million books or so, it will probably be more useful.

Yes, he's right. Yes, he acknowledged that this is still a very cool feature. Yes, it's my reaction, too.

     But still, think about it: "Amazon has available only 120,000 books so far" for full-text searching. Only 120,000 books so far. Until 10 years ago, the Internet in its current form didn't really exist. Until a few weeks ago, we couldn't even search through one book in full text, unless it was one of the relatively few and generally quite old books (a few thousand, perhaps) available on some computer archives, which weren't always the easiest things for people to track down, search, and read on the screen. Now we can search through bleeping 120,000 books. From our bleeping living rooms. For bleeping free. And we still complain (don't blame Kevin, you know you thought that, too) that they haven't gotten it up to a million books or so.

     No wonder it's so hard for humans to be happy.

Sunday, October 26, 2003

 
[David Bernstein, 10/26/2003 11:58:25 AM]
NY Times Editorial on Janice Brown: (Times in italics, Bernstein in plain text):

Justice Brown, who has been nominated to the United States Court of Appeals for the District of Columbia Circuit, has made it clear in her public pronouncements how extreme her views are. She has attacked the New Deal, which gave us Social Security and other programs now central to American life, as "the triumph of our socialist revolution."
That's her personal opinion. But has she ever indicated that she would disregard sixty-five years of Supreme Court jurisprudence holding that surviving New Deal programs (the horrible National Industrial Recovery Act, for example, was invalidated 9-0) are constitutionally permissible? Did she ever disregard such clear Supreme Court precedents while serving on the California Supreme Court? The Times is implicitly suggesting that no one with libertarian economic views may serve on a federal appellate court. Surely they can't mean that!

And she has praised the infamous Lochner line of cases, in which the Supreme Court, from 1905 to 1937, struck down worker health and safety laws as infringing on the rights of business.
Liberal Yale law professor Bruce Ackerman has the following to say about Lochner: "The Lochner Court was . . . interpreting the Constitution, as handed down to them by the Republicans of Reconstruction. Lochner is no longer good law because the American people repudiated Republican constitutional values in the 1930s, not because the Court was wildly out of line with them before the Great Depression." Besides, it's quite obvious that the modern line of Supreme Court cases protecting sexual autonomy under the Due Process Clause, especially last term's Lawrence v. Texas (invalidating laws banning homosexual sodomy), are direct descendants of Lochner. The Times can attack Brown for praising Lochner when it editorializes against Lawrence.

Justice Brown's record as a judge is also cause for alarm. She regularly stakes out extreme positions, often dissenting alone. In one case, her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets. Justice Brown dissented, arguing that doing so violated the company's free speech rights.
The Times implies here that Brown dissented alone. Actually, the decision was 4-3. Moreover, the dissenters were correct. A jury had found that an Avis Rent-A-Car outlet had engaged in employment discrimination, in part by allowing an employee to repeatedly utter racial epithets targeted at the Latino plaintiffs. Besides awarding damages, the trial court issued an injunction prohibiting Avis employees "from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of [Avis]." An appellate court limited the injunction to the workplace and attempted to narrow the scope of the injunction via a proposed list of specific words that the district court could ban. Not satisfied that these modifications made the injunction comport with the First Amendment, Avis appealed to the California Supreme Court.
The three dissenters argued that the injunction amounted to a prior restraint on constitutionally protected speech. They pointed out that U.S. Supreme Court precedent shows that prior restraints are not allowed for speech that might, but won�t necessarily, be illegal. The reason for this rule is that such restraints have a chilling effect on what could have been legal, protected speech. For example, a single future pejorative use of a racial epithet, although banned by the injunction, cannot be the severe and pervasive harassment required to create an illegal hostile work environment; in some contexts it might be severe, but a single comment cannot be "pervasive." For that matter, racial epithets can be uttered in contexts that do not evince hostility. For example, epithets could be mentioned during "diversity education" or could be used ironically, yet these uses of the epithets would be equally banned by the injunction�s prior restraint.

Last year, her court upheld a $10,000 award for emotional distress to a black woman who had been refused an apartment because of her race. Justice Brown, the sole dissenter, argued that the agency involved had no power to award the damages.
So? Being the sole dissenter does not necessarily make Brown wrong in her interpretation of the law, nor does voting to limit the scope of an antidiscrimination statute.

In an important civil rights case, the chief justice of her court criticized Justice Brown for "presenting an unfair and inaccurate caricature" of affirmative action.
The Chief Justice was dissenting, and taking an absurd legal position (that prohibiting racial preferences violates the Equal Protection Clause) to boot. And didn't we just learn that being in dissent in a civil rights case calls one's judgment into question? [UPDATE: Reader Kevin Murphy notes that "if a strongly dissenting Chief Justice is to invalidate a state court's majority opinion, shouldn't the NY Times have thoroughly casigated the Florida Supreme Court in the Bush v Gore fiasco? He didn't just dissent there, he RANTED at the majority." Further UPDATE: John Rosenberg points out that the California Chief Justice did not actually dissent from the majority's holding, even though the Chief's opinion is styled as "concurring in part and dissenting in part.]

The American Bar Association, all but a rubber stamp for the administration's nominees, has given Justice Brown a mediocre rating of qualified/not qualified, which means a majority of the evaluation committee found her qualified, a minority found her not qualified, and no one found her well qualified.
The ABA is hardly an unbiased organization, and the idea that a judge who has served with distinction for seven years on the most important state supreme court in the country is barely or not qualified to be a federal appellate judge is just ridiculous.

 
[David Bernstein, 10/26/2003 08:51:21 AM]
Al Qaeda Planning to Bomb British Synagogues: According to the London Telegraph (link requires registration):

Iranian spies have been photographing synagogues and other Jewish buildings in Britain, seemingly in preparation for terrorist attacks. MI5, the security service, and Special Branch officers have discovered Iranians photographing such buildings in London and the Home Counties for some time, with an upsurge of activity over the past two months. Up to 20 Iranians, most studying here legally as students at universities, are involved in the surveillance and two men have been asked to leave the country as a result.

 
[Eugene Volokh, 10/26/2003 06:40:30 AM]
Crime-facilitating speech: I'm finally finishing up a rough but distributable draft of my Crime-Facilitating Speech article. There's much that I'm not satisfied with: For instance, it's way too long (100 pages at this point), and I still don't have a clear solution to propose, though I might stick by proposing a few alternatives and explaining the pluses and minuses of each. But I am generally fairly happy with it, and excited about it -- I'm convinced that this is an important problem, that there are very few existing analyses of it, and that I have some significant points to contribute to the analysis.

     So I thought I'd take a brief break from my editing to post the rough cut to the Introduction, which I hope helps explain the issue, and why I think it's so important. Warning: This is still quite rough (I've barely proofread it), missing the footnotes that provide the concrete examples of the speech restriction I discuss (I have them, but just decided the text was long enough already), and naturally incomplete (it's just the Introduction -- I'll try to post the rest of the article on my Web site, with a link from here, late next week). It gives the flavor of the issue, but naturally not the whole argument. In any case, here it is:

     When should speech be punishable because it provides information that facilitates crimes, or other harms? This question arises in many different cases:

1. A textbook, magazine, Web site, or seminar describes how people can make bombs (conventional or nuclear), make drugs, painlessly and reliably commit suicide, commit contract murder, fight a guerilla war or engage in domestic sabotage, evade taxes, or more effectively resist arrest during civil disobedience.
2. A detective or mystery novel does the same, in order to add realism to its story.
3. A publication reports how one can organize one�s tax return to minimize the chances of tax audits, engage in file-sharing in a way that minimizes the chances that recording industry groups will identify one as a potential infringer, or better conceal one�s sexual abuse of children.
4. A Web site or a scholarly computer science article explains how one can effectively encrypt messages, something that can help stymie law enforcement, how one can illegally decrypt encrypted software, or exactly what security flaws exist in a prominent operating system.
5. A newspaper publishes the name of a witness to a crime, which may make it easier for the criminal to intimidate or kill the witness.
6. A leaflet or a Web site identifies boycott violators, abortion providers, strikebreakers, police officers, or registered sex offenders and perhaps even their home addresses.
7. A Web site posts people�s social security numbers or the passwords to computer systems.
8. A newspaper publishes information about a secret subpoena or secret wiretap, and the suspects thus learn that they�re being watched.
9. A newspaper publishes the sailing dates of troopships, or the names of undercover agents in enemy countries.
10. A Web site or a newspaper names or describes a Web site that contains copyright-infringing material.
11. A master criminal gives a less experienced friend advice on how to commit a crime, or how gang leaders should violently discipline their members.
12. A lookout�or a stranger, who has no relationship with the criminal but who dislikes the police, or dislikes the criminalization of the particular conduct (e.g., drug use or drug sales)�tells a criminal that the police are coming and it�s time to run.
13. A driver flashes his lights to inform other drivers that there�s a speed trap up ahead.
14. A Web site sells or gives away research papers, which helps students cheat.
15. When any of these kinds of speech is suppressed, a self-described anticensorship Web site provides a copy, not because its operators intend to facilitate crime, but because they want to protest and resist speech suppression.

These are not incitement cases: The speech isn�t persuading some readers to commit bad acts. Rather, the speech helps some readers more effectively commit bad acts�acts that they already want to commit.

     Surprisingly, the Supreme Court has never squarely confronted this issue, and lower courts and commentators have only recently begun to seriously face it. And getting the answer right here is quite important: Because these cases are structurally quite similar�a similarity that hasn�t been generally recognized�a decision about one of them will affect the results in others. If one of these restrictions is upheld (or struck down), others may be unexpectedly validated (or invalidated) as well.

     In this article, I�ll try to analyze the problem of crime-facilitating speech, a term I define to mean

1. any speech that,
2. intentionally or not,
3. makes it easier for some listeners or readers to (a) commit crimes or (b) other harmful acts (such as torts, hostile acts of foreign nations, or suicide), or (c) to get away with committing crimes or harmful acts.

I hope to ultimately provide (in Part IV) some potential solutions, and identify their advantages and disadvantages. My main goal, though, is to make some observations about the category that may be useful even to those who disagree with my ultimate suggestions.

     The first observation is the one with which this article began: Many seemingly disparate cases are linked by being crime-facilitating speech cases, so the decision in one such case may therefore unexpectedly affect the decision in others. For instance, it may be appealing to deny First Amendment protection to contract murder manuals or to bomb-making information, on the grounds that the publishers know that the works may help others commit crimes. But such a broad justification would equally strip protection from newspaper articles that mention copyright-infringing Web sites, mimeographs that report on who is refusing to comply with a boycott, and academic articles that discuss computer security bugs.

     If one wants to protect the latter kinds of speech, but not the contract murder manual, one would have to craft a narrower rule that distinguishes different kinds of crime-facilitating speech from each other. To do so�or to conclude, perhaps, that despite one�s original intuitions, some seemingly different kinds of speech should be treated similarly�it�s helpful to think about these problems together, and use them as a �test suite� for checking any proposed crime-facilitating speech doctrine.

     Second, crime-facilitating speech is an instance of what one might call a �dual-use material.� Like weapons, videocassette recorders, alcohol, drugs, and many other things, many types of crime-facilitating speech have both valuable uses and harmful uses, and it�s often impossible for the distributor to know which consumers will use the material in which way. Banning the material will unfortunately stop the valuable uses along with the harmful ones. Allowing the material will unfortunately allow the harmful uses alongside the valuable ones.

     It would be good if the law could draw some distinctions within the category that will minimize the harmful uses and maximize the valuable ones. This, though, is hard for legislatures to do with regard to dual-use materials generally�and, I�ll argue in Parts II, it turns out to be especially hard for courts to do as a constitutional matter with regard to crime-facilitating speech.

     I will start in Part I with the first questions that need to be asked about any dual-use material: How does it cause harm, what harms does it cause, and how can it be used valuably? In Part II, I�ll discuss some ways in which the law can try to distinguish different varieties of crime-facilitating speech, for instance by focusing on how valuable they are, how harmful they are, what the speaker�s intent was, and how they�re promoted. These distinctions are the possible building blocks of a crime-facilitating speech exception. The analysis may help suggest which blocks are worth including in the ultimate test, and which are best omitted.

     Part III will argue that crime-facilitating speech doesn�t fit well within the existing First Amendment doctrine. Part III.A will respond to claims that there�s no First Amendment problem with punishing crime-facilitating speech under generally applicable laws that deal with aiding and abetting. Part III.B will discuss the possibility that the strict scrutiny test can provide a solution to this problem. Part III.C will briefly do the same for arguments about �balancing.� Part IV will then outline what I think is the generally right approach�recognizing a new First Amendment exception for certain kinds of crime-facilitating speech�and will identify several possible boundaries for this exception, using the building blocks identified in Part II.

     Finally, in Part V, I�ll try to ask what this inquiry tells us about broader questions. I�ll consider what this tells us about, for instance, the First Amendment doctrine related to strict scrutiny, laws of general applicability, mens rea analysis, the marketing and presentation of speech, and the value to be placed on entertainment and scientific speech. I�ll consider what this tells us about Bill of Rights rules more generally�including both First and Fourth Amendment rules�that turn on the magnitude of the harm that the law is trying to avert. I�ll consider what this shows about the effect of the Internet on constitutional law. And, finally, I�ll discuss what, if anything, this tells us about courts� and legislatures� regulating dual-use materials more broadly.

 
[Tyler Cowen, 10/26/2003 05:09:45 AM]
Sadly, this is not a joke: Read this account of Jacques Derrida, speaking on the concept of "living together."

Maybe it is the reporter's fault, but having read, or rather tried to read Derrida's books, I don't think so. How about this bit:

"Derrida next confronted the audience with the question of how people are supposed to live together. In addressing this question, Derrida related the topic to contemporary issues, including the current hostilities between Israelis and Palestinians. He said that although Israelis and Palestinians are not living together peacefully, they are still living together.

Drawing upon the idea that two groups at war are still, theoretically, living together, Derrida decided to address the new question of how one lives together well. Derrida proposed numerous answers; however, he said that these solutions may be impossible and unsuccessful.

Derrida's first solution to the question of how to live together well was the paradox that "forgiveness must forgive the unforgivable." Derrida then said that to live together well, people must also comprehend one another and be in accord with one another.

Some of the audience found Derrida's lecture confusing and complicated.

"I found it very difficult to follow. My sense of it was that it was like a meditation, where there was no sequence of thought that I could discern. I sort of went into a quiet state and let it all go by," said attendee Steven Glauz-Podrask, the father of a UCSB student.

By the close of Derrida's lecture, Campbell Hall, completely filled at the beginning, was reduced to half capacity. There were very few young people present.

"I think it was good. It was certainly too long. I think it stretched the audience's patience," Assistant Italian Professor Jobst Welge said. "It was interesting but could have been shorter." "

Thanks to politicaltheory.info for the link.