Saturday, May 01, 2004

 
[Jacob Levy, 5/1/2004 07:19:04 PM]
Irresponsible: One quick note from sunny Portsmouth, New Hampshire, where I'm running back and forth from spending time with my family, attending the New England Political Science Association (where I took part in an enjoyable roundtable on Randy's new book as well as presenting new work of myown) and attending my 15th high school reunion (conveniently in the samne hotel):

My new TNR column, on accepting responsibility, is now online.

 
[Tyler Cowen, 5/1/2004 04:44:41 AM]
Cultural diversity revisited: I am continuing my work on cultural diversity, including my periodic trips to UNESCO. A central intellectual question for me is how national and regional feelings of identity can best be secured and strengthened, and in a manner consistent with existing instruments regulating the free trade of goods and services. I generally see the international flow of cultural ideas as leading to shifts in identity, and the creation of new identities, rather than destruction of identity. This view, of course, does not follow a priori. Rather extensive empirical work is required to trace the complex connections here. And certainly we can see some cases – Polynesia comes to mind most clearly – where it is hard to argue that outside influences have benefited the local cultural identity. That being said, when it comes to large and relatively prosperous polities, I am skeptical of predictions about cultural homogenization.

The hardest case here is probably Canada, which of course lies close to the United States geographically, economically, and in part linguistically as well. I recently had a fruitful visit to the University of Western Ontario. Although London Ontario is only a mid-sized town (325,000) it has an excellent selection of ethnic food. I also spent my last evening channel surfing the TV. I found an interesting program on Hasidic theology, stand-up comedians joking about the United States and Canada, NBA basketball, and minor league hockey. Whether NAFTA supports or damages this cultural diversity is surely a topic worthy of further debate.

It should come as no surprise that social scientists are looking into these issues more deeply. A recent NBER working paper, “International Trade and Cultural Identity,” by Eckhard Janeba, provides the first formal treatment I have seen of many of these issues (the paper costs $5 on-line). Janeba traces the different assumptions under which trade boosts or corrupts a nation’s identity. He is directing the attention of researchers to the issue of cultural consumption externalities, namely that people care about what their peers consume. I suspect that this notion of consumption externalities is the central missing piece of cultural economics. It helps explain why young people buy so much music, why most music bought is of recent vintage, and why someone might believe that trade and cultural identity could ever conflict.

I feel I have blogged about cultural diversity issues enough at VC, so I will be moving on to other topics. As I have done once before, I’ll issue an open invitation for topic requests, especially relating to economics and public policy. I won’t thank you all individually, but your input will be duly noted.

Friday, April 30, 2004

 
[Eugene Volokh, 4/30/2004 10:51:28 PM]
Right of publicity vs. the First Amendment: Arnold Schwarzenegger is threatening to sue a company that is distributing Arnold Schwarzenegger bobble-heads. Schwarzenegger's claim is not unprecedented, even among political leaders: The Martin Luther King, Jr. estate successfully blocked the distribution of busts of King; I discuss the case in my Freedom of Speech and the Right of Publicity article.

     But as I argue in this article, Schwarzenegger ought to lose, even though under current law he has a good chance of winning. The bobble-heads are hardly incisive political commentary, but they do send a message that Schwarzenegger ought not be taken too seriously. The message is ambiguous and contestable, as it is in much art (consider Andy Warhol's Mao print or his Marilyn Monroes print). But, as with other art, the expression should still be constitutionally protected.

     And, unlike with copyright law, there's very little justification for allowing the subjects of such works a right to block them: There's no reason to think that the right of publicity materially increases people's incentives to become celebrities, much less political leaders. Copyright law restricts expression in order to promote more expression and more creativity; moreover, reading the First Amendment as preempting copyright law would mean that the Bill of Rights largely eviscerates a constitutional provision (the Copyright and Patent Clause) that was passed more or less contemporaneously. Right of publicity law restricts the use of people's likenesses and names without promoting more expression and more creativity, and it lacks this specific constitutional hook.

     This litigation also illustrates, I think, the weakness of the "transformativeness" test that the California Supreme Court set forth in Comedy III Productions v. Saderup (again, discussed in my article). "Transformative" uses, the court held, are protected by the First Amendment, and the court gave Warhol's Mao print as a paradigm example of a transformative use, even though it just depicts Mao: "Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself." On the other hand, nontransformative uses, such as Saderup's charcoal drawings of the Three Stooges (in which the California Supreme Court Justices could "discern no significant transformative or creative contribution"), are unprotected by the First Amendment, and may lead to a right of publicity lawsuit.

     But which category does the bobblehead fall into? Is there as much "distortion and careful manipulation of context" in the bobblehead medium as in the Mao print? How do you figure that out in any objective way? Poll art critics?

     I think the answer should be simple (again, see the article for more details): Prints and sculptures (whether in stone or in plastic) should be as constitutionally protected as movies and books, and people -- especially political leaders, but also others -- shouldn't be able to block others from producing such items any more than they can block others from producing parodies, jokes, biographies, or news stories. But, as I mentioned above, Schwarzenegger's claim is hardly unprecedented under current law, and may even be a winner. I don't fault him, but I do fault many courts' willingness to let the right of publicity trump the First Amendment.

     Thanks to Shannon Maders for the pointer.

 
[Eugene Volokh, 4/30/2004 04:16:08 PM]
John Locke vs. law reviews: Clayton Cramer writes:

I was reading through John D. Cushing, ed., The Earliest Printed Laws of North Carolina, 1669-1751, and I found [this item] at 2:146 from John Locke's 1669 Fundamental Constitution of Carolina. . . .

80th. Since multiplicity of comments, as well as of laws, have great inconveniences, and serve on to obscure and perplex: all manner of comments and expositions, on any part of these Fundamental Constitutions, or on any part of the common or statute laws of Carolina are absolutely prohibited.

 
[Eugene Volokh, 4/30/2004 03:45:20 PM]
Alleged mistreatment of prisoners: I'm with Glenn Reynolds on this.

 
[Eugene Volokh, 4/30/2004 03:06:14 PM]
We won't defend you, and neither can you: Knight-Ridder reports:

As the insurgency and violence in Iraq intensify, the Department of Defense has proposed a new rule for most of the estimated 70,000 civilian contractors working in the war-torn region: They can't carry guns.

At the same time, a top Defense Department official this week acknowledged publicly for the first time that the war effort was suffering a "brain drain" of civilian workers who were fleeing Iraq because they didn't feel safe. . . .

Now I realize that contractors' carrying guns can cause hazards as well as benefits:

Supporters of the new rule -- including the biggest contractor in the area, Halliburton's Kellogg Brown and Root -- said there are three big drawbacks in allowing contractors to carry weapons. Armed contractors would be more likely to be shot at or kidnapped. Also, as civilians, they don't follow the same strict rules of force as the military. And by picking up weapons, contractors could lose any death and accident insurance coverage they may have. . . .

But "Nick Sanders, who chairs the contract finance committee for the National Defense Industrial Association, a trade group for traditional defense contractors," has it right, I think, on the bottom line:

The problem with the rule is that it tells contractors that they're responsible for their security, but then says they can't be armed . . . .

So while I may well be mistaken -- the rules for survival in war zones are complex, and inexperienced civilians like me are hardly the best judges of them -- it seems to me the government's proposal is not the right approach. (Thanks to Dan Gifford for the pointer.)

 
[Eugene Volokh, 4/30/2004 03:00:39 PM]
Conservatives and Republicans: Jonah Goldberg makes some good points on this. (Thanks to Dan Gifford for the pointer.)

 
[Eugene Volokh, 4/30/2004 02:13:35 PM]
Witches: Reader Paul Forsyth points out that C.S. Lewis beat me to my witches observation by decades (not surprising -- my point was pretty obvious). Forsyth quotes Mere Christianity, p. 26:

But surely the reason we do not execute witches is that we do not believe there are such things. If we did -- if we really thought that there were people going around who had sold themselves to the devil and received supernatural powers from him in return and were using these powers to kill their neighbors or drive them mad or bring bad weather, surely we would all agree that if anyone deserved the death penalty, then these filthy quislings did.

Indeed.

 
[Eugene Volokh, 4/30/2004 02:01:53 PM]
Europe or Asia? Where's the (necessarily arbitrary) dividing line between Europe and Asia? Setting aside the obvious water boundaries, I understood that Europe included all the USSR west of the Ural Mountains, so the Eastern and Southeastern boundary was the Urals, the Caspian, plus the Soviet-Turkish border. But now it appears that Armenia, Georgia, and Azerbaijan are being treated as Asian (see, for instance, this Slate piece, which suggests that it's odd that Georgia is outside Europe, though I've seen this elsewhere as well).

     Who decides these things? Is there some Official Europe-Asia Boundary Commission? Is it just a consensus of geographers? Or does such a consensus even exist, at least as to the Caucasus? Yes, it might be better to speak just of Eurasia, but the fact is that people do speak about Europe and Asia.

 
[Eugene Volokh, 4/30/2004 01:36:33 PM]
D'oh!

A federal drug agent shot himself in the leg during a gun safety presentation to children and his bosses are investigating. . . .

"The kids screamed and started to cry," said Vivian Farmer, who attended the presentation with her 13-year-old nephew.

"Everyone was pretty shaken up," Farmer said. "But the point of gun safety hit home. . . ." . . .

 
[Eugene Volokh, 4/30/2004 01:31:40 PM]
Caveats and conditionals A reader writes, apropos this post:

"But part, I think, might be the tendency of some people -- at least in some circles -- "

In the spirit of light hearted Friday afternoon banter, I offer the following suggestion:

You might, under some circumstances, evaluate, consider, or at least entertain the possibility of limiting, restricting or cutting back on the use of caveats, conditionals, and stipulations in your personal writing. At least occasionally.

     I appreciate the feedback; and I agree that such conditionals and caveats may make writing less forceful and persuasive. I also suspect that I sometimes use more of them than necessary.

     And yet some of this is necessary, if I am to be accurate, and to be seen as accurate. For instance, the post to which the reader alludes (my first one today about white men who prefer Asian-American women) was based on my personal observations of such relationships, and of the people who criticize them. I'm well aware that my personal experience on such matters is quite limited. I can't speak to what all critics think, or even what most critics think, or even what many critics think in other social groups than mine.

     So to be careful and precise -- and I like to cultivate both the perception and the reality of care and precision -- I decided to include some suitable caveats. They may make my writing less persuasive because they distract and annoy some readers. But they may make it more persuasive, because readers won't be alienated by what they will see as claims that go beyond the evidence. And I'll feel better, because I'll know that I'm not making such claims.

 
[Eugene Volokh, 4/30/2004 12:57:06 PM]
More about Asian-American women: My friend Jim Lindgren, who is a law professor and a demographic researcher, writes:

In the 1972-2002 NORC General Social Surveys of the US public, approximately equal numbers of Asian women (23%) and non-Asian women (24%) think that "Women should take care of running their homes and leave running the country up to men" (FEHOME, n=22,538).

On a related question (FEWORK, n=24,401), 85% of Asian women approve of "a married woman earning money in business or industry if she has a husband capable of supporting her," compared to only 77% of non-Asian women (a statistically significant difference). The answer to this question suggests that Asian women in the US are somewhat less likely to view women's working outside the home as secondary to men's work.

There is an interesting contrast when one moves out of husband/wife relationships to this question of submission to the law (OBEYLAW, n=2,985): "In general, would you say that people should obey the law without exception, or are there exceptional occasions on which people should follow their consciences even if it means breaking the law?" Here Asian women (55%) are not significantly different from non-Asian women (47%) in their submission to the authority of law, but Asian men (76%) express much more submissive views about legal authority than do non-Asian men (37%).

So, as I said below, white men who seek Asian-American women because they think those women are likely to be especially submissive will probably be sorely disappointed. And if the men keep seeking out Asian-American women, then this suggests that they aren't really looking for submissive women after all.

 
[David Bernstein, 4/30/2004 12:32:41 PM]
Jews and Immigration: There has undoubtedly been a marked change in American Jewish attitudes toward immigration since 9/11, with a much larger percentage of Jews expressing ambivalence or hostility toward liberal immigration policies. The unease Jews feel about immigration these days, with fears that American cities will become more like Paris or even Toronto or Montreal in terms of how safe Jews feel, has not yet filtered from the grassrooots into the American Jewish organizational hierarchy's agenda. A new, somewhat overwrought, paper by Dr. Steven Steinleight called "High Noon to Midnight: Why Current Immigration Policy Dooms American Jewry," addresses these concerns:

American Jews already live in a state of heightened threat. A visit to New York, home to America’s largest Jewish population, provides striking evidence that Jews no longer live in safety. Virtually every high-profile Jewish institution in New York is surrounded by concrete barriers to prevent car bombs exploding too close to the building, while being checked by security guards and passing through metal detectors are now a routine a part of attending religious services. Such vigilance is not confined to New York. Throughout the country, in communities with a substantial Muslim presence, security is a critical part of planning any sort of Jewish political or communal event — especially those intended to demonstrate support for Israel. An address by a representative of Israel or a speaker known as a critic of Islamism ensures an armed police presence.

Reality is dawning on many American Jews that something is amiss, although it seems lost on some of the country’s most venerable Jewish organizations. There’s a sad, if comic irony associated with the fact that employees at organizations like ADL, the American Jewish Committee, and the Presidents’ Conference must pass through a gauntlet of concrete barriers, armed guards, metal detectors, and double bulletproof anterooms as they come to work each morning to protect them from radical Islamic terrorists, in order to spend their days studying and disseminating reports on the "threat" posed by Evangelical Christians. Meanwhile, the legislative affairs staffs of these organizations are directed to lobby against immigration reforms that could minimize the danger.

After 9/11, Jewish organizations began devoting more attention to the activities of Islamic radicals in the United States. Their web sites document the ties many of these groups have to terrorists. Amazingly, however, these watchdogs fail to employ the most basic logic and ask the most obvious question: How did they get here? Not one has been willing to examine the impact of mass immigration, including mass Muslim and Islamist immigration, on American Jewry, much less take a position calling for changes in U.S. immigration policy.

I'm a bit too busy right now to analyze this paper in detail. Suffice to say that I don't agree with all of it (for example, Jewish organizations have had guards for years to deal with homegrown anti-Semites, and in a curious but almost certainly intentional omisssion, the author fails to note that most American Moslems are African Americans or from the Indian subcontinent), but I think the paper raises issues that many American Jews, raised to think that immigration is a good thing, sympathetic to liberal multiculturalism, and fearful of being seen as racist or intolerant, are too abashed to raise publicly.

As a related aside, to me, the most interesting "Jewish" statistic in the next election will not be what percentage of Jews vote for Bush over Kerry, but what percentage of "Jewish Jews,"--the ones who attend synagogue regularly, go to programs at Jewish Community Centers, foresee their great-grandchildren living as Jews, basically the kind of people who are being regularly exposed to having to go through unprecedented various levels of security at Jewish institutions nationwide, and are inevitably concerned about what this means for the future of American Jews--will vote for Bush over Kerry, in sympathy with the War on Terror.

 
[Eugene Volokh, 4/30/2004 10:04:30 AM]
Joseph Wilson says: Niger official thinks Hussein's Information Minister was trying to arrange uranium purchase. From the Washington Post:

It was Saddam Hussein's information minister, Mohammed Saeed Sahhaf, often referred to in the Western press as "Baghdad Bob," who approached an official of the African nation of Niger in 1999 to discuss trade -- an overture the official saw as a possible effort to buy uranium.

That's according to a new book Joseph C. Wilson IV . . . . Wilson wrote that he did not learn the identity of the Iraqi official until this January, when he talked again with his Niger source.

That knowledge has not altered Wilson's much-expressed view that the Bush administration distorted intelligence on Iraq's weapons capabilities to help make the case for going to war. . . .

Sahhaf's role casts more light on an aspect of Wilson's report to the CIA that was publicly disclosed last summer. . . . [CIA Director George J. Tenet's statement in 2003] noted that Wilson had reported back to the CIA that a former Niger official told him that "in June 1999 a businessman approached him and insisted that the former official meet with an Iraqi delegation to discuss 'expanding commercial relations' between Iraq and Niger. The former official interpreted the overture as an attempt to discuss uranium sales."

In his book, Wilson recounts his encounter with the unnamed Niger official in 2002, saying, he "hesitated and looked up to the sky as if plumbing the depths of his memory, then offered that perhaps the Iraqi might have wanted to talk about uranium." Wilson did not get the Iraqi's name in 2002, but he writes that he talked to his source again four months ago, and that the former official said he saw Sahhaf on television before the start of the war and recognized him as the person he talked to in 1999. . . .

Thanks to Nikita Demosthenes for the pointer.

 
[Eugene Volokh, 4/30/2004 09:52:31 AM]
More about Communists: A reader writes:

I just wanted to write in and take you to task for the quote, "While I wouldn't have excluded Communists, past Communists, or Communist sympathizers from all federal jobs (not because I like them, but because of the First Amendment), I surely think it's perfectly constitutional and proper to exclude them from secret nuclear weapons research."

Does being a communist guarantee that state secrets will be passed on?

How about we change your statement to,

"While I wouldn't have excluded CHRISTIANS, past CHRISTIANS, or CHRISTIANS sympathizers from all federal jobs (not because I like them, but because of the First Amendment), I surely think it's perfectly constitutional and proper to exclude them from secret nuclear weapons research."

Because, well, they might pass state secrets on to the Vatican, or say a pastor in Korea. Just because one is "X" and a repressive regime claims to be "X", doesn't mean I will give secrets because we share "X" in common.

Someone else e-mailed me a similar question, pointing to Jews rather than to Christians.

     I think this analogy is misguided. First, in fact we were not in a Cold War against an evil regime whose main ideology, as opposed to ours, was Christian or Jewish. Nor does Christian or Jewish ideology these days generally call for the destruction by revolution of non-Christian or non-Jewish states (back when it did, the matter might well have been different). Standard Communist ideology in the 1930s through the 1950s did indeed call for that. Not everyone who was a Communist might have adhered to that ideology, but that was the official view, and many did adhere to it.

     Second, I don't think that the test for secret nuclear weapons research jobs should be "[Is it] guarantee[d] that state secrets will be passed on?" When the danger of secrets being passed on is so great, the government should be able to eliminate even modest risks. That someone has only recently belonged to a group whose official ideology calls for the triumph of our enemies and the destruction -- likely violent destruction -- of our system is pretty substantial evidence that he is not entirely trustworthy. The government may exclude him from such very dangerous, top secret jobs even without a "guarantee" that he will betray us.

     In 1942, the government need not have hired in military intelligence or weapons research former Nazi party members, or even people who joined groups that appeared to have strong Nazi sympathies. In 1950, it need not have hired former Communist party members. Today, it need not hire people who had been members of radical Muslim groups whose official ideologies called for the destruction of America, or even people who had expressed such sympathies. If thirty years from now, there was a militant Christian denomination against which we were fighting, I'd say the same about members of those groups. And there'd be no need, I think, to wait for evidence that "guarantee[s] that state secrets will be passed on" before those members are excluded from such jobs.

 
[Eugene Volokh, 4/30/2004 09:41:34 AM]
Witches: A reader writes:

I wonder if you really meant this:

If there were witches, in the standard sense of people who could use black magic to harm the rest of us, then of course we ought to hunt them.

The reason I ask is that you're suggesting hunting witches because they could harm us, not because they are or are planning to. This doesn't seem to me to be a defensible position. Replace black magic with guns and I think you'll see my point.

As I understand it, the conventional understanding of witches was that they got their powers through an alliance with satanic forces, and that they acquired those powers partly to use them against innocent people (or else why did they need the powers?). Punishing them is thus no different from punishing someone who got some very nasty weapons by dealing with the Mafia, or someone who has -- but has not yet used, and as to whom there is no firm evidence that he is about to use -- a radiological bomb that he got from a terrorist organization with which we are at war.

     What to do about magicians, who have powers that they acquired without the help of demons, and who can use those powers for good as well as for ill, is a tough call. Likewise with people who have superpowers that they've always had, and that they can't shed.

     Imagine we discovered that there were telepaths living among us, people who could undetectably read our minds, in a way that we couldn't block. Or imagine that there were people who could undetectably control into our minds, in a way that we couldn't block. Would we be justified in locking them up, or even killing them? A hard question that I don't think we can answer firmly using our current morality, which evolved based on certain assumptions about the physical world, and which might have to change if those assumptions proved false. Fortunately, we live (or appear to live!) in a world where we don't have to make such tough decisions.

     In any case, though, witches -- as conventionally seen by those who went on witch hunts -- are an easier case: They not only have dangerous tools, but they acquired them by conspiring with the Dark Side, and this acquisition shows evidence of malign intentions on their part, as well as a concrete act of dealing in dangerous munitions with the enemy. I have little trouble with punishing them for that.

 
[Eugene Volokh, 4/30/2004 09:28:14 AM]
White men who like Asian women: At The Right Coast, Thomas Smith is criticizing New York Times ethicist Randy Cohen for, among other things, "[advising] a man who finds himself exclusively attracted to Asian women [that] he get help for his racism." I haven't read that Cohen item, but if Smith is characterizing it correctly, Cohen's advice is indeed bunk. There's nothing racist -- expressing hostility, hatred, or dislike or even (shifting subtly away from racism) expressing stereotypical generalization based on race -- about being physically or erotically attracted to women who have a particular look. It is racially discriminatory, but choice of spouse or sexual partner is one place where we rightly don't condemn race discrimination (or for that matter sex discrimination).

     But this brings up one point that I've observed: Whenever the topic of white men who prefer Asian women comes up, someone nearly always theorizes that this is because the men have a stereotype of Asian women as submissive and deferential. The man isn't so much being faulted for racism as for a desire to be the boss in the relationship. I've heard people say this time and again.

     And yet every man I know who is like this (I've known four fairly well) has ended up dating Asian women who are far from submissive or deferential. Likewise, the men I know who are married to Asian women (I put them in a separate category because I have no idea whether they generally prefer Asian women or just happened to marry an Asian woman) do not seem to be married to submissive or deferential women.

     Now perhaps this is just an artifact of my circle -- the men are mostly Los Angeles lawyers; I hardly have an unbiased sample. In fact, this is why I'm not relying on the fact that most of the Asian women I know aren't submissive or deferential; the women I know are an especially biased subsample. And I realize that in former generations, or especially in situations where American men married Asian women they met overseas, the matter might be quite different.

     Still, today, it seems to me that either (1) the men I know who prefer Asian women are repeatedly disappointed, since they seek submissive women but don't get them, and yet keep repeating their error, or (2) the men actually prefer Asian women for very different reasons -- chiefly their looks, since American Asian women (and especially those who are assimilated enough that they're willing to date white men) have very similar personalities to white women. As you might gather, I think item 2 is much more likely, at least for men of my circle, which is to say educated big-city men (though it might quite well apply to men of other circles; I just don't know enough to tell).

     Now I realize that preference for looks is itself complex, since looks can yield both a visceral physical response and what I call an "erotic" response rather than a physical -- a response that's triggered by psychological connections, such as a sense that this woman is exotic and different from most other women, something that some men may find attractive. Still, the preference seems to be for a woman's looks, and not for the woman's willingness to be dominated.

     If I'm right, then what's the reason for the "they just want submissive women" theory? Part of it might be that this was indeed once the preference for some men, for instance those bringing home war brides or mail-order brides -- I'm just purely hypothesizing here, since I have no reason to think that this is so, but at least I can't rule it out.

     But part, I think, might be the tendency of some people -- at least in some circles -- to like theories that place men, and especially white men, in a negative light, the "men are pigs" / "white men are oppressors" theories. Many people who like those theories don't actually hate white men (some might be white men, and some might sleep with white men). Rather, they adopt the theories because in certain circles those theories have a certain fashionable cachet, as signs of deep and power-structure-subversive understanding. And this is so even when the theory seems to have no empirical foundation.

     Or am I mistaken? Is there any real evidence that most white men, or even a substantial number of white men, today who prefer Asian women do so because they think that Asian women are more likely to be submissive?

     (Before people start speculating, no, I'm not saying this just to defend my own preference for Asian women. I've been involved with one Asian woman in the past, and naturally found her attractive, but I've been involved with considerably more non-Asian women, and found them attractive, too.)

UPDATE: Several readers e-mailed to agree with my perception here, based on their own experiences -- some men who marry Asian women they meet overseas are looking for the stereotypical submissive woman (and might be getting her), but it's a mistake to generalize from this to men who prefer Asian-American woman, who don't fit the stereotype, and who aren't sought because of this stereotype. And I should stress that I've heard the "white men who like Asian women must just be looking for submissive women" line about the latter category, as to which the line seems to be quite mistaken.

Thursday, April 29, 2004

 
[Eugene Volokh, 4/29/2004 05:47:55 PM]
More on whether Oppenheimer was a Communist? In response to my "Was Oppenheimer Indeed a Communist?" post, historian Jerome Sternstein passed along the following:

I noticed you called attention to the piece in the SF Chronicle about Oppenheimer. You might want your readers to see this link where they can parse the new, fascinating documents uncovered by Gregg Herken and mentioned in the Chronicle article and now being debated. They could thus make up their own minds about the evidence of whether Oppenheimer was a member of the CPUSA. After reading them and other things, I've concluded he was.

I thought I'd pass it along, for those who are interested.

     A bit more on the broader point: I don't know much about who was a Communist and who wasn't, and I'm not terribly interested in the details. As best I can tell, the McCarthy era was filled with lots of abuses, including lies about who was a Communist, and restrictions that did indeed violate the First Amendment. It's good that we use that era as a cautionary tale, and the reminder of how even originally narrow restrictions end up spreading over time, from out-and-out Communist conspirators to Communist sympathizers to fellow travelers and on.

     At the same time, I balk at casual condemnations of McCarthyism as a "witch hunt." Witch hunts are unambiguously bad because we know there are no witches. If there were witches, in the standard sense of people who could use black magic to harm the rest of us, then of course we ought to hunt them.

     And in the McCarthy era, there were indeed Reds, not under every bed but in some important places. Consider, among others, Klaus Fuchs, a Communist physicist who worked on the Manhattan Project, and he passed some of the A-bomb secrets to the Soviets; in the words of the Encyclopedia Britannica, “His espionage is credited with saving the Soviets at least one year's work in their own program to develop the atomic bomb." He was arrested in 1950; he confessed, and served 9 years in prison.

     While I wouldn't have excluded Communists, past Communists, or Communist sympathizers from all federal jobs (not because I like them, but because of the First Amendment), I surely think it's perfectly constitutional and proper to exclude them from secret nuclear weapons research. If Oppenheimer, who is often painted as having been unfairly victimized by McCarthyism's excesses, had indeed been a Communist, then the Communist hunters may well have been quite right to have gone after him, even if they may have been quite wrong as to many others. And this is so even if he was quite loyal by 1950; in this field, the government is entitled to err on the side of caution.

 
[Juan Non-Volokh, 4/29/2004 11:32:49 AM]
You're No Psychic: From Jim Holt's review of Debunked! by Georges Charpak and Henri Broch (Johns Hopkins Univ. Press) in today's Wall Street Journal:

Have you ever had a premonition? Did you once have, say, a passing thought about an uncle, only to receive a phone call five minutes later informing you that the beloved relative has dropped dead? If so, this probably struck you as eerie. You might have vaguely believed it was ESP.

Was it? Let's see. Suppose you know of 10 people who die each year. Furthermore, suppose you think of each of them once annually. There are 105,120 five-minute intervals in a year. A simple probability calculation shows that there is a 10 in 105,120 likelihood that you will, as a matter of chance, have a thought about one of these people in the five minutes before you hear of their death. Multiply this likelihood by the population of the U.S. (about a quarter of a billion people) and you find that roughly 25,000 people each year -- about 70 a day -- will have a "psychic" experience of this sort. In fact, it's pure coincidence.

One can quibble with Holt's back-of-the-envelope calculation, but the underlying point is a good one.

 
[Eugene Volokh, 4/29/2004 10:01:17 AM]
"The Wrong Venue for Partisanship": That's what James Taranto (Best of the Web) says, and it seems to me he's right:

"Former US first lady Hillary Clinton said the "stubborn" policies of President George W. Bush's administration were endangering stability in the Middle East," Agence France-Presse reports:

The New York Democrat senator told the London-based Arab daily Asharq al-Awsat that the Bush administration had not been "frank" with the American people concerning the human and financial costs in Iraq.

Clinton said the Bush administration did not have a plan for Iraq and did not have a full understanding of the situation there.

She said the United States was in trouble because it could not abandon Iraq, nor provide enough manpower to run the country, nor gather world allies willing to provide the necessary assistance for the gigantic task.

She described the Bush administration as "stubborn and arrogant" for refusing to admit its mistakes which were endangering US soldiers, Iraqis and stability in the Middle East.

Mrs. Clinton obviously has a perfect right to say whatever she wishes about the Bush administration, but is it really wise to advertise in the Arabic press her belief that the U.S. is in trouble?

     I realize that anything one says in any newspaper may get into the Arabic press. But when the readers in the Arab world, likely including Iraq, know the statement has been made to an Arab newspaper, it seems to me that the perceived force of the statement would be magnified: "The American opposition wants us to know that even they think that the U.S. is in trouble." (The interview was with a British Arabic language newspaper, but naturally the material would be reprinted in other publications in the Arab and Muslim world -- the quote in the Best of the Web story is from Brunei Online, with an Agence France Press dateline of Beirut -- and the readers will likely perceive the statement as having been made to the Arab community.)

     Seems to me that the very likely effect of statements such as this is to magnify the resolve of those who are trying to defeat us, to kill our soldiers, and to take over Iraq (despite the line about "could not abandon Iraq," which many Iraqis would assume could change if America's "trouble" only got big enough). It is especially likely to magnify their resolve to keep fighting until the election, rather than to surrender and be seen as giving Bush a victory. And the standard (and often quite persuasive) justification for such criticism even during wartime, which is that Americans need to hear all the arguments to decide whom to vote for, is at its least forceful with a statement such as this one.

UPDATE: Reader Steve Waldman suggests that Bill Clinton has done better on this score than Hillary, quoting a Jan. 2004 New York Post column by Ralph Peters:

Asked by an eager-to-Bush-bash delegate [at a conference in Qatar] if he, Bill Clinton, would have behaved differently after 9/11, our former president said he would have followed an identical course, pursuing our enemies into Afghanistan and beyond. Queried about his position on Iraq, he stated that any disagreements he might have would be most appropriately expressed at home in the U.S., not before a foreign audience. . . .

(I couldn't find the entire text of the original column, but I've seen it quoted in enough places that I think the quote is likely correct.)

 
[Eugene Volokh, 4/29/2004 09:34:38 AM]
No sex, please, we're astronauts:

Dr Rachel Armstrong, speaking yesterday at a British Interplanetary Society symposium on the Human Future and Space, said the US space agency Nasa was considering how to deal with the natural urges of astronauts travelling on long journeys such as a three-year trip to Mars, where the six-strong crew would be likely to include two women.

"Nasa is talking about the chemical sterilisation of astronauts on longer journeys," Dr Armstrong said, in a talk discussing the problems humanity may face in trying to reach the planets and, eventually, the stars. . . .

Douglas Powell, a psychology professor at Harvard University who was recruited in 1999 by Nasa to investigate the behavioural needs of long-term space trips, said: "Like anywhere, these are normal healthy people in their prime and they are sexually active so they are going to get involved with each other. So what's going to happen in space? It's a serious question and it needs to be confronted."

[S]cientists such as Professor Powell are concerned that the emotional fallout from having a crew where some are happier than others, or where relationships are made and then fall apart, could be disastrous. He noted the comments of one Russian cosmonaut about time spent cooped up in the Mir space station that "when you have two people locked up in a very small environment for months at a time, all the conditions for murder are met." Mix in sex, and you almost have the script of Othello in space. . . .

NASA seems to deny this, however:

Nasa was nonplussed by the suggestion yesterday. "I haven't heard anything about that," said a spokesman at Nasa's Johnson Space Centre, where the long-range trips announced by President George Bush in January are being planned. . . .

Thanks to Dan Gifford for the pointer.

 
[Tyler Cowen, 4/29/2004 05:50:35 AM]
Haitian history in one short sentence: "Haiti doesn't really have the choice of missing this new last chance."

That's from James Foley, U.S. Ambassador to Haiti. Here is the New York Times article. As an aside, I am struck by how words such as "really" and "essentially" alter or reflect the true meaning of sentences. They are almost words of negation. In fact Foley probably does fear that Haiti will choose the wrong path, as it has done in the past.

 
[Randy Barnett, 4/29/2004 05:39:55 AM]
The Beltway at War: David Brooks has a column in Tuesday's New York Times expressing a feeling I have been having for some time. Here is the gist of it:

These are the crucial months in Iraq. The events in Najaf and Falluja will largely determine whether Iraq will move toward normalcy or slide into chaos.

So how is Washington responding during this pivotal time? Well, for about three weeks the political class was obsessed by Richard Clarke and the hearings of the 9/11 commission, and, therefore, events that occurred between 1992 and 2001. Najaf was exploding, and Condoleezza Rice had to spend the week preparing for testimony about what may or may not have taken place during the presidential transition.

And for the past 10 days, all of Washington has been kibitzing over the contents of Bob Woodward's latest opus, which largely concerns events that happened between 2001 and 2003. Did President Bush eye somebody else's dinner mint at a meeting? Was Colin Powell in the loop on Iraq? When did Bush ask the Pentagon to draw up war plans?

This is crazy. This is like pausing during the second day of Gettysburg to debate the wisdom of the Missouri Compromise. We're in the midst of the pivotal battle of the Iraq war and le tout Washington decides not to let itself get distracted by the ephemera of current events. . . .

What's going on is obvious. The first duty of proper Washingtonians is to demonstrate that they are smarter than whomever they happen to be talking about. It's quite easy to fulfill this mission when you are talking about the past. It's child's play for a salad-course solon who spent the entire 1990's ignoring foreign affairs to condemn the administration piously for not focusing like a laser beam on Al Qaeda on Aug. 6, 2001.

It's harder to be a smart aleck about the future, especially in regards to Najaf and Falluja, where none of the choices are good ones. Do the Baathists win a victory every day they hold off our siege? Or if we take them out now, do we undermine Sistani? We Klieg Light Kierkegaards will give you the right answer — three years from now, after whatever option the president takes has been judged and found wanting. . . .

Over the next weeks, U.S. forces are going to jump from the fires of unilateralism to the frying pan of multilateralism. What's going to happen when our generals want to take on some insurgents but Brahimi and the sovereign Iraqi appointees say no? We here in Washington will have a considered opinion. Our opinion will be that Joseph Wilson really nailed Karl Rove in his forthcoming book.

And while you are at it, you might be interested in this piece on Bob Kerrey's appearance on Comedy Central's The Daily Show. I must admit I fast forwarded through his interview before deleting the show from my Tivo.

Wednesday, April 28, 2004

 
[Jacob Levy, 4/28/2004 09:22:19 PM]
Unethical: I've tried not to keep beating the Randy "Ethicist" Cohen horse; I've had my say, and he's still a famous syndicated and NTYM columnist and I'm not, so I guess the market has spoken. I try to exercise the willpower not to check up on him, sometimes lapse, and am sometimes annoyed and sometimes bored.

But I do want to direct your attention to a really lovely review, from the new issue of Reason Papers, of Cohen's silly book, The Good, The Bad, and the Difference, by philosopher Steven Sanders.

 
[Tyler Cowen, 4/28/2004 04:00:13 PM]
Chinese demographics and sex ratios: The ever-insightful Randall Parker has much to say about these issues. First, by 2040 China will have a higher proportion of elderly than will the United States. This will create fiscal problems, but on the bright side such a China is unlikely to be militarily aggressive. Yet there will be other problems:

"In 1993 and 1994, more than 121 boys were born in China for every 100 baby girls. (The normal ratio at birth is around 105; for reasons debated among biologists, humans seem naturally to churn out slightly more boys than girls.) In India during the period 1996 to 1998, the birth ratio was 111 to 100; in Taiwan in 2000, it was 109.5. In 1990 a town near New Delhi reported a sex ratio at birth of 156.

Valerie Hudson argues that the shortage of females is not going to self-correct because the females and their parents can not leverage the scarcity of the females for self-benefit and so there is no market incentive to have more female children. If certain free-market Ph.D. economists of my acquaintance (and the rest of you as well) have read this far do you have any comments to offer on this point?"

Parker suggests that too many unmarried young men end up making trouble. Of course this could happen before 2040. So what is the deal, will families see reason to favor having daughters rather than sons? Will dowries kick in and restore the sex ratio to greater balance? Immigration, of course, only transfers the problem to another country. In any case adjustments will take time and clearly voluntary forces are not creating a balanced sex ratio today. If you are looking for a classic externalities problem to teach your class, I will nominate this as a prime example.

The game theory problem, of course, is tricky. If you think that no one else will prefer daughters, you will prefer to have a daughter to get a high dowry. If you think that everyone will opt for daughters, you prefer sons. One way of getting more daughters is for everyone to think that the others prefer sons. Of course this fails some definitions of rationality. One suspects that a "mixed strategy" obtains, in which case families prefer daughters with some probability.

 
[Eugene Volokh, 4/28/2004 02:50:46 PM]
Another Bushism, this one from the Financial Times, debunked, by my former student, Raffi Melkonian:

My favorite newspaper, the Financial Times, enjoys its forays into the land of Bush-isms . . . . Here's today's entirely misguided effort in the admittedly lighthearted "Observer" column:

Where's the beef?

George W. Bush is proud of his "No Child Left Behind Act". But one problem with the policy is it provides no help for children left behind years ago -- like Bush himself.

In Minnesota on Monday, Bush did his best to show off his knowledge of geography and science: "I shared a story the other day during a press conference where I talked about a dinner I had with Prime Minister Koizumi of Japan. And we're eating Kobe beef."

So far, so good . . . until: "I don't know whether it's grown here in Minnesota or not, but it's real good."

Hold on Mr President, Kobe beef grown in Minnesota? It's a good thing those Japanese cows can't vote.

Of course, if the "Observer" had stopped revelling in his or her own intellectual superiority for more than a second, he or she would have noticed that Kobe beef may not be produced in Minnesota, but it definitely is in Idaho, Nebraska, Oregon, and a whole host of other states throughout the country. Yes, of course -- true Wagyu Kobe is from Japan. But that's neither what the President said or meant . . . .

     Good point; but what's more, if you look at the transcript, it seems clear that the very reason Bush mentioned Kobe beef is that he knew that it's originally a Japanese dish. The line is an aside in a speech that has nothing to do with beef. It's obviously a little joke (not very funny, I realize) of the tie-the-story-to-this-occasion variety; there's just no other possible explanation. Given this, why would Bush mention that he doesn't know whether the beef is from Minnesota? Either it's also a gag (these days, you can have Kobe beef from Minnesota just like you can have Chryslers assembled in some foreign country), or it's another attempt to tie the story to the location. It's certainly not confusion about whether Kobe beef is or is not originally Japanese.

     So another failure of the "Bushism" genre -- a genre that's prone more to showing errors on its authors' part than on Bush's part.

UPDATE: Two readers pointed out that the italicized "grown," and the reference to "knowledge of . . . science" suggest that the Financial Times is making another point besides Kobe beef being Japanese -- that beef isn't grown but rather (presumably) raised. On reflection, I agree that the article must be making that point; but I missed it because it's such a stretch. My New Shorter Oxford defines "grow" as, among other things, "produce (plants, fruit, wool, etc.) by cultivation," which clearly covers animal products, and beef presumably as much as wool. The American Heritage defines "to raise" as one definition of "to grow." A LEXIS search found a bunch of examples of "grow beef" (in Bush's sense of raising cows, not just in the narrower sense of making cows bigger). There's just nothing wrong with Bush's statement.

FURTHER UPDATE: Reader Bruce Holder wisely suggests a google search for "beef growers," which finds references to the the Natural Beef Grower's Network, the Southern Beef Growers Cooperative, a headline in Iowa Farmer Today (it's attached to an AP story, but I believe the headlines are typically written by the newspaper, not the wire service), and more.

 
[Eugene Volokh, 4/28/2004 02:41:02 PM]
Michael Kinsley will head L.A. Times opinion and editorial section: So says Editor & Publisher. I think Kinsley did a very good job as founding editor of Slate -- and, in particular, welcomed a wide mix of political perspectives, including the unorthodox -- so I'm quite pleased by this move.

 
[Juan Non-Volokh, 4/28/2004 08:03:15 AM]
Vieth v. Jubelirer: In one of two decisions issued this morning, the Supreme Court come's within a hair's breadth of overturning Davis v. Bandemer. Four Justices -- Scalia, Thomas, Rehnquist and O'Connor -- were ready to hold all claims of partisan gerrymandering to be nonjusticiable. Justice Kennedy, while rejecting the challenge to Pennsylvania's gerrymandered Congressional districts, refused to go along for that part of Justice Scalia's opinion. SCOTUSBlog has a post here; AP story is here. More after reading and digesting the opinion.

Tuesday, April 27, 2004

 
[Randy Barnett, 4/27/2004 09:03:51 PM]
An Analysis of Current Military Tactics in Fallujah: Coverage in the media of actual military developments in Falluja has been pretty thin. We hear about deaths and some fighting in identified towns, but next to nothing about ongoing and possible military tactics. This is understandable. The last thing the military would do is share its tactics with the public in the middle of very difficult urban warfare. The Belmont Club has collected some recent accounts and identified some possible military tactics that these maneuvers might represent. It is a lot more than I have seen elsewhere. Here is a lengthy excerpt from an even lengthier post and update:

Mortensen's earlier story indicated the Marines were returning to positions north; since it is known that they already hold positions south it seems clear that the enemy is now squeezed from two sides and is probably contained in the northeast corner of Fallujah, an area full of meandering streets and mosques. The enemy would prefer a linear American advance, hoping as in the case of Jenin, to mine buildings and blow them up as Americans occupy them. Not wanting to oblige, the USMC is mounting relatively small probes forcing the enemy to react. The current Marine strategy is ripping up the mobile defense. The company plus unit which attacked the platoon is probably no more. However, it will not be long before the enemy must retreat into a continuous perimeter, as his manpower dwindles to the point where a mobile defense is no longer viable. The remaining enemy forces are probably in the battalion plus range. And then the ghost of the Shuri line will rear up, in which there were no other option but to go directly into the teeth of the defense. The density of the defense displayed in the recent encounter may mean that time is near.

The important thing to know now, and Marine commanders are probably working to find out, is where the enemy plans his last stand. When that is prepared, the enemy will probably abandon most of the territory he now holds and collapse his remaining manpower into the stronghold. During that withdrawal he will be somewhat vulnerable, although the presence of civilians frustratingly precludes any kind of aggressive pursuit even when the retreat is underway. There, in that redoubt, he will present the whole panoply of mined buildings, IEDs, strongpoints, spider-holes and pillboxes, all in continous and interlocking line. Then there will be nothing for it but to reduce it by overwhelming fire. . . .

An AC-130 struck two sites in Fallujah about 150 meters apart resulting in secondary explosions. It is possible that the USMC, after probing consecutively, has thrown the enemy a curve ball and attacked the mustering sites where the Jihadis were briefing and arming their mobile task groups for the night, the locations deduced from movement patterns gleaned from previous engagements. The other possibility is that the USMC has identified preparations for the final redoubt and struck at their magazines. The creation of a continuous enemy line would require consolidating munitions, especially explosives, into the defensive area to wire it up completely. The distance of 150 meters between attack points is consistent with a defensive area about 300 yards square. The loss of munitions is irreplaceable to the enemy and probably reduces their effectiveness as much as attrition in men.

If the Marines follow up, the enemy may be forced to continue a plan now in shambles right over a cliff. Hence, it is possible the enemy will develop a sudden appetite for a truce to gain time to rebuild their scattered positions. Alternatively the Marines themselves could ease up the tempo, handing the enemy another unexpected change of pace, to haul more civilians out of the area and snipe at the stragglers as they regroup. Either that or launch more and possibly multidirectional probes. The enemy has no good moves left, only the evil choices of continuing a mobile defense with dwindling numbers and weapons or consolidation in a bastion with much a much reduced magazine capacity. Of course, the trapped men are probably hoping for a diversionary attack from their cohorts in the rest of the Sunni triangle, but that is a forlorn expectation. Killing those four Blackwater contractors was an expensive proposition.

 
[Eugene Volokh, 4/27/2004 04:21:00 PM]
Debra Saunders on the New York Times and Jose Padilla: Here's an excerpt from her piece in the San Francisco Chronicle (thanks to How Appealing for the pointer):

[H]ere's the paragraph in the story by [New York Times] reporter Deborah Sontag that truly baffles me: Padilla's "journey covered significant territory, geographically, emotionally and spiritually, and family and friends paint a vivid picture of Jose Padilla. If he lived a double life, they were unaware of it. And the American government has said so little beyond its initial, startling allegations about Mr. Padilla that it is difficult to reconcile the two portrayals -- the man his relatives thought they knew and the man the government calls an enemy of his homeland."

What's difficult to reconcile? Where is the good Jose Padilla that is supposed to balance the bad? When he was young, Padilla was a thug [committing a brutal armed robbery, brandishing a gun in a fit of road rage, and attacking a prison guard]. After he found God as an adult, he was a heel [getting engaged to an Arab woman while he was still married to his American wife, who only learned of the betrothal through a friend]. Whether he's guilty of plotting to set off a dirty bomb, I don't know, but Padilla's biography certainly raises questions that beg for answers. . . .

 
[Eugene Volokh, 4/27/2004 03:51:30 PM]
Other errors by Washington Gov. Locke: The same story contains the following:

Locke delivered a free-ranging speech that also . . . said the federal Patriot Act reminded him of the internment of the Japanese during World War II. . . .

Locke also criticized the Patriot Act approved in the aftermath of Sept. 11. Apparently referring to detainment of suspected enemy combatants, he said the law reminds him of the internment of Japanese-Americans during World War II.

     Well, if the reporter interpreted Locke correctly, then Locke is badly wrong. First, the detention of suspected enemy combatants, whether the Guantanamo detainees or Padilla and Hamdi, is pursuant to other authority, not the Patriot Act, which says nothing about such military detention.

     But second, and much more importantly, even if Locke used "Patriot Act" as highly imprecise (though recently quite common) shorthand for "the Bush administration's policies," the military detention is vastly different from the internment of Japanese-Americans. The Japanese-Americans were interned because of their race (some of them were Japanese citizens and thus enemy aliens even if they lived here a long time, but the policy applied even to nativeborn citizens of Japanese descent). The military detainees are being interned because the government has specific reason, quite unrelated to their race (Padilla is Hispanic, not Arab) to believe that they are enemy soldiers.

     It is conceivable that the reporter misunderstood Locke, and that Locke was referring to sec. 412 of the Patriot Act, which makes it easier for the government to detain, before deporting them, noncitizens who are suspected of terrorist activity or other illegal or dangerous conduct. (I think it's less likely that this is what Locke meant, given the newspaper account, and given that the section has gotten much less publicity than the military detentions have -- if Locke had been referring to that section, then I suspect he would have realized that he had to more specifically explain what he was talking about.) But again this is very different from the detentions of Japanese-Americans: It applies to citizens as well as noncitizens, and it's triggered by specific suspicion of misconduct.

     One can criticize the government's detention policies on various grounds; as blog readers are aware, I think the government's position in the Padilla case, for instance, is probably mistaken. But the analogy to the Japanese-American internments is just wrong.

 
[Eugene Volokh, 4/27/2004 03:35:33 PM]
Washington governor urges judges not to drink in public:

Gov. Gary Locke, in a valedictory to the judiciary, on Monday urged judges to take the pledge against drinking in public -- or at least to hold themselves to a single drink.

Locke advocated a "stringent and even harsh standard of conduct," which he said could apply to all elected officials, as part of his prescription for building public confidence in the courts. . . .

Locke said public drinking undermines public confidence in judges. . . .

Even a single drink at a cocktail party or restaurant can set tongues wagging, so it's best to not drink in public at all, or "adopt a rigid one-drink rule," said Locke, a teetotaler.

Locke said later he was also thinking of the numerous legislators who have gotten nailed for drunken driving.

"It hurts everybody" when a judge, lawmaker or any public official is nabbed, he said. . . .

     "Even a single drink at a cocktail party can set tongues wagging"? Well, maybe a single drink followed by dancing with a lampshade on one's head -- but I find it hard to believe that a single drink alone will do it.

     I'm fully aware of the harms that drunken driving, and drunkenness generally, causes. But setting up these sorts of rules -- which will then naturally lead to all sorts of tangential complaints about supposed "appearances of impropriety" -- are hardly the way to solve it. Most adults can handle drinking at social functions, and even drinking more than one drink. Those that can't handle it shouldn't drink. But the existence of that minority shouldn't require the responsible majority to become public teetotalers, whether they're judges or not.

     Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 4/27/2004 03:04:56 PM]
Contagiousness: Responding to my "how contagious am I?" post, reader Bob Woolley writes that what I hoped for -- a home test that would "somehow objectively measure just how contagious one is likely to be -- perhaps some sort of quickie home saliva test or some such" is unlikely to be available soon. But here's what he suggests:

But you have a pretty good qualitative assessment built in: your level of contagion (for ordinary colds, anyway) is proportionate to the amount of (pardon me) goo you're producing. The virus wants nothing other than to reproduce and spread itself. It does this by stimulating the formation of respiratory mucus loaded with copies of the virus, and by stimulating coughing and sneezing, to disperse droplets of that mucus. You could probably make a decent gauge of a person's infectiousness by weighing the used tissues produced in an hour. . . .

He also wrote that this still holds true even when one's goo output is reduced by taking cold remedies:

To whatever extent they reduce goo production and expelling, they reduce your contagiousness. . . .

 
[Eugene Volokh, 4/27/2004 02:59:39 PM]
More on anti-Americanism in the Middle East: Jeff Jacoby has a good column on this.

 
[Jacob Levy, 4/27/2004 01:31:23 PM]
"Liberal Jacobinism:" My review essay of Brian Barry's Culture and Equality, "Liberal Jacobinism," Ethics 114 (January 2004): 318-336, is now online. (That link is html; the pdf is here.) Links are probably only open to those whose institutions subscribe to Ethics, though that will cover most people accessing the web via universities.

 
[Eugene Volokh, 4/27/2004 11:16:35 AM]
A sobering data point on actuarial projections: The tables I mention below are fascinating, and I suspect generally highly reliable. Still, check out this table, and explain to me how anyone could possibly make remotely plausible projections about future rates of death. The projections about changing rates of death due to violence are particularly laughable -- though we can probably predict that trauma care will keep improving, we have no idea how homicide will fluctuate. But even projections about death due to heart disease, cancer, and the like can't possibly be right for more than a few years out; who knows what sort of medical care improvements we'll see in the coming century? If anyone is relying on these projections, especially out to 2040 and the like, they're living in a fantasy.

 
[Eugene Volokh, 4/27/2004 11:12:50 AM]
Cool data on life expectancy: Mary Campbell also points to some cool tables available from the Social Security Administration. Check out the data here and here, for instance, to observe how infant mortality has plummeted.

UPDATE: Some helpful details, again from Mary Campbell:

In the blog item linking the SSA tables, you might want to indicate which column to look at, and what each column means.

q_x = one-year probability of death at age x
l_x = expected # of people alive at age x, given starting 100K people at birth
d_x = expected # of people dying from age x to x+1, in the population starting with 100K people at birth (obviously, l_(x+1) = l_x - d_x and d_x = q_x * l_x -- there's a lot of redundancy in the mortality tables. These might not work out exactly on this table because of rounding.)

L_x and T_x are somewhat complicated, and I'd rather not explain them.

e-circle_x = average number of years left to live from age x

In any case, you see that 737 babies dying in 2000 vs 14,596 dying in 1900 before their first birthdays for boys, and a similar drop in mortality for girls.

By the way, you can't simply average the rates for boys and girls, or the life expectancies, because naturally (without sex-selecting abortions) more boys are born than girls. I think the natural ratio is 104 boys to 100 girls, or something like that. I don't have those stats at hand. Once I found an article about how the ratio has changed in places like China... in some areas, where the one-child doctrine is strictly enforced, the ratio can get up to 1.3 to 1, I think. Not very pleasant to think about. Especially as Americans and others are adopting abandoned Chinese girls... But that's an entirely different issue.

 
[Eugene Volokh, 4/27/2004 11:10:07 AM]
More on life expectancy: Reader Mary Campbell, an actuarial assistant in New York writes, based on Social Security Administration tables:

There are two types of mortality tables available -- cohort and calendar year. Using the 1900 cohort tables, I find the following probabilities (and life expectancies) (my table does not include mortality before age 5, as early childhood mortality is difficult to get accurate reports on -- this is true even today, as many babies are reported as stillborn in other countries who would be counted as born alive here, as we've got neonatal intensive care units to try to help these children survive...):

We usually report life expectancy as additional years to live, but to make it simpler, I will report on total lifespan.

For a 10-year-old girl born in 1900:
The lifespan expectancy is 71.5 years
Median lifespan is 77 years.
She has a 25% probability of reaching age 87.

For a 10-year-old boy born in 1900:
The lifespan expectancy is 65.5 years
Median lifespan is 69 years.
He has a 25% probability of reaching age 80.

---

For a 10-year-old girl born in 1950:
The lifespan expectancy is 81.3 years
Median lifespan is 85 years.
She has a 25% probability of reaching age 92.

For a 10-year-old boy born in 1950:
The lifespan expectancy is 75.3 years
Median lifespan is 79 years.
He has a 25% probability of reaching age 87.

----
For a 10-year-old girl born in 2000:
The lifespan expectancy is 85.3 years
Median lifespan is 88 years.
She has a 25% probability of reaching age 95.

For a 10-year-old boy born in 2000:
The lifespan expectancy is 80.4 years
Median lifespan is 84 years.
He has a 25% probability of reaching age 91.

Now, there are some things being captured here and some things not. Improvements in women not dying from childbirth, improved nutrition, better medicine, and less cigarette smoking may all be involved. The Society of Actuaries does general mortality studies often, to see which factors have had the largest effect -- the 1900 cohort would have been impacted by WWI and the Spanish flu outbreak and infectious diseases in general. We pretty much have the complete mortality table for the 1900 cohort now (excepting a few stragglers). The 1950 and 2000 cohort tables are obviously made on model projections for ages past 53 for the 1950 cohort, and for almost all of the 2000 cohort. Time will tell if obesity, diabetes, cardiovascular disease, cancer, and what have you will have a large mortality effect. The main difference is that unlike infectious disease, these conditions do not kill the young as often. Then there is the issue of improved medicines for counteracting horrible lifestyles.

Notice the gender gap is closing for mortality, and some of it may be due to "stupid stuff" guys do in early adulthood, as well as the "protection" -- whether hormonal or otherwise -- pre-menopausal women get. If you look at age 65 men and women, the life expectancy gap narrows from about 5 years seen above to about 3 years.

I've also got those "calendar year" mortality tables you were wondering about, and those are what give the horrible life expectancies. These are harder to interpret, because they just capture the mortality for each age for the year 1900. That mortality structure does not persist past that year (okay, maybe for a few more years). So if I plug in a 10-year-old girl to the 1900 calendar year table, I get a lifespan expectancy of 61.1 years! Ten years less than the cohort table! But that's assuming it will be 1900 every year.

In the lifetime of that 10-year-old girl (should she survive the Spanish Flu in adulthood), sulfa drugs will be discovered, as will antibiotics. The Pure Food and Drug Act will be passed. With manure-spread roads going away with the advent of cars, the water actually becomes cleaner -- less cholera or dysentery, which killed quite a few of the young and elderly. Vaccination becomes widespread. Public sanitation improves.

So the life expectancies reported are much more pessimistic than actuality, even if you skip over the huge childhood mortality period, which greatly drops around age 10. . . .

I got the tables to do the above calculations from the Office of the Chief Actuary of the Social Security Administration (he's got a website, with all sorts of studies and projections). The Society of Actuaries also has tables (soa.org) as does the American Academy of Actuaries (actuary.org).

 
[Eugene Volokh, 4/27/2004 11:02:31 AM]
Canadian lawsuit seeks coordinates of Weblog comment authors: CalBlog reports:

Ted Franks has filed a petition in Montreal, Quebec, seeking the identity of various commenters on the Infotel thread. I was served by registered mail. I got the slip last night and picked it up this morning. The hearing is Friday. Did I mention in Montreal, Quebec?

The full petition is attached. I don't know if there's jurisdiction over me in Canada but my litigator's basic instinct says that I lose any right to complain of jurisdiction if I respond in substance. Plus, they want names addresses and phone numbers, none of which I have. So my immediate reaction is to not respond. . . .

The post includes the text of the Canadian motion to compel the production of the posters' names. Note that, despite the similarities in the names, La Canada is pretty far from Le Canada.

 
[David Bernstein, 4/27/2004 10:09:15 AM]
Taxes in Northern Virginia: With the governor, Senate, and House in Virginia fighting each other over who can take credit for raising taxes, the latest proposal is to do away with former Gov. Gilmore's plan to completely eliminate the "car tax." The rationale for this, as well as much of the rest of the tax-raising, is that local governments in particular are hurting, and cannot provide needed services. I don't know much about the rest of the state, but I wonder, with property values having more or less doubled in Northern Virginia in the last five years, and property taxes having followed suit (yes, assessments have more or less doubled, in some neighborhoods well to the more side), where the heck is all of this money going? And why doesn't it occur to the Washington Post and other local media outlets to ask?

 
[Eugene Volokh, 4/27/2004 10:03:31 AM]
Names: Those who think that it is only in recent years that people have started giving their children unfortunate names (such as Latrina) -- and those who have complained that their own names are unpleasant -- should check out this record from the 1880 Census. If you search here for the same first name, you'll find 20 more Americans with such a first name, plus one Canadian and one Briton.

     And of course think of how much more fun you can have with that search engine.

 
[Jacob Levy, 4/27/2004 07:45:36 AM]
Bad news: Via Dan: The not-terribly-surprising but still most unpleasant news that Hoover's Larry Diamond-- the democratization scholar and optimist, editor of the Journal of Democracy, and sometime advisor to the Coalition Provisional Authority-- has decided not to go back to Iraq.

"We just bungled this so badly," said Diamond, a 52-year-old senior fellow at Stanford University's Hoover Institution. "We just weren't honest with ourselves or with the American people about what was going to be needed to secure the country."

Diamond was a senior adviser to the Coalition Provisional Authority and spent several initially hopeful months in Iraq -- lecturing on democracy, even in mosques, encouraging people to participate and helping shape laws that embodied his vision. He returned to Palo Alto in early April for a short break, then ran into an emotional brick wall, he said, when he contemplated the mess he had left behind.

Last Thursday, when it came time for Diamond to return, he did not get on the plane.

Instead, he was in his office at the Hoover Tower, disillusioned over the desperate turn of events he had witnessed and what he feels was a country allowed to spin out of control, in large part, he says, because of the Bush administration's unwillingness to commit a big enough force to protect Iraqis from militias and insurgents.

"You can't develop democracy without security," he said. "In Iraq, it's really a security nightmare that did not have to be. If you don't get that right, nothing else is possible. Everything else is connected to that."

Diamond's someone who knows what he's talking about in this arena, one of the political scientists most widely and deeply versed in the experiences of and literature about democratization. And he's not prone to doomsaying.

For those of us who are outisiders struggling to weigh evidence about how badly things are going in Iraq, I tink this is a very important piece of very disspiriting news.

 
[Eugene Volokh, 4/27/2004 04:09:04 AM]
In Jesse Jackson's world, Yasser Arafat deserves to be embraced -- but the invasion of Iraq is a "crime against humanity," and "murder." The one thing that finally gave the Iraqi people the opportunity (we'll see if they can take advantage of it, but at least they have a chance) to have some semblance of democracy, human rights, rule of law, and freedom from ethnic and religious mass killing -- and this supposed "civil rights leader," and President Clinton's special envoy to Africa, thinks it's a "crime against humanity."

Monday, April 26, 2004

 
[Eugene Volokh, 4/26/2004 05:15:13 PM]
Exceptions for making fun of dictators: Jeff Jarvis (BuzzMachine) writes:

Among all the absurd, meddling, and stupid rulings from the FCC lately, this one really takes the Twinkie: The FCC fined a station for making a phony phone call to the real Fidel Castro -- and getting him on the line -- but not following commission rules about getting permission to put the person on the air.

InstaPundit seems to agree, suggesting that "There should be an exception for making fun of dictators" (though I'm not sure how serious he is).

     The FCC, though, is in a difficult position here. Though the government has (rightly or wrongly) broader authority to regulate over-the-air radio and television broadcasts than it has over newspapers, books, the Internet, and other media -- it may, for instance, restrict profanity, and require broadcasters to carry opposing views -- it probably does not have the power to impose viewpoint-based restrictions. I doubt that the government is constitutionally entitled, for instance, to ban songs that glorify illegal drugs (though in fact the FCC did do this in the early 1970s), or to require broadcasters to provide equal time for opponents of racist views but not for opponents of egalitarian views.

     Likewise, much as I sympathize with criticism of Castro, I don't think the FCC's broadcast speech regulations can discriminate in favor of this viewpoint any more than they can discriminate in favor of other viewpoints. So if one thinks that the FCC's general rule -- a broadcaster can't just call you and then unbeknownst to you publicly broadcast the conversation -- is generally sound, then the FCC can't make any Castro exception or dictator exception to that. (They might conceivably create a viewpoint-neutral exception for political humor, but that would be a pretty broad exception, probably broad enough to swallow a huge chunk of the rule.)

UPDATE: A couple of people suggested that the FCC could create a viewpoint-neutral exception for unauthorized broadcast of conversations with public figures. I think such an exception would be constitutional, but again I suspect that many supporters of the basic rule would oppose it. If you think that it's dishonest to surreptitiously broadcast your phone conversations with people, then I suspect you'd think it's dishonest even when it's done to, say, a local politician, a prominent scholar, a well-known movie star, and the like. That the person is a public figure might make something of a difference, but I doubt that it would make enough of a difference to change the proper outcome. I can certainly understand why the FCC would be hesitant to create such an exception.

 
[Eugene Volokh, 4/26/2004 03:16:22 PM]
"Religious Fanatics, Out To Impose Their Morals On The American Public": Clayton Cramer has the details:

Since 1983, with the formation of Eco-Justice Working Group, the National Council of Churches has been providing an opportunity for the national bodies of member Protestant and Orthodox denominations to work together to protect and restore God's Creation. A major task of our environmental ministry is to provide program ideas and resources to help congregations as they engage in environmental justice. . . .

Christian Leaders call on Bush to protect God's gift of Air

In a letter to President Bush released on Earth Day, more than 100 national and state leaders of the National Council of Churches expressed moral concern over the President's stewarship of the environment -- particularly on the Administration's "clean air" policies and its implications on public health. . . .

     I rather doubt that many people who regularly criticize conservative religious groups for "mixing religion and politics" will criticize these religious groups for doing so. Most people would, I think, conclude that it's generally quite proper for religious people and organizations to seek bans on conduct that they see as immoral and harmful to people and to the Earth, just as it's proper for secular people and organizations to do the same.

     Now naturally one can still disagree with the specific agenda of the groups: One might, for instance, think that the environmentalists' claims are morally unsound, just as one can think that pro-life forces' arguments that fetuses should generally have the right not to be killed are morally unsound. And one can also believe that these sorts of religious arguments might be unpersuasive.

     But I doubt that one would say that there's something per se improper with the National Council of Churches -- as opposed to the Sierra Club -- urging that its views on the environment be implemented in government action. And if that's so, then the same would, I think, apply when churches urge that their views on fetal rights be implemented in government action.

 
[Eugene Volokh, 4/26/2004 02:58:50 PM]
Blogging, the academy, and adjuncts: The Chronicle of Higher Education has a good piece on the late Invisible Adjunct blog, its anonymous author, blogging, the academy, adjuncts, and more. Thanks to Ralph Luker for the pointer. (I'm told that the Chronicle piece should be available for free for five days.)

 
[Eugene Volokh, 4/26/2004 02:20:24 PM]
Life expectancy: As I mention in the post immediately below this one, I much liked Radley Balko's TechCentralStation piece. I do think, though, that this line falls into a common error:

But I doubt that Easterbrook longs for the early 20th century, when 45% of American laborers toiled in the fields -- and most of them could expect to live all of 47 years.

If life expectancy is 47 years, this does not mean that most American laborers could expect to live "all of 47" years. First, it means that the average lifespan of Americans born in 1900 was 47 years. If the 47 years were the median lifespan, then half of Americans could expect to live 47 or more years, or alternatively half of them could expect to die by age 47 (setting aside the tiny fraction that would live exactly 47 years, on the dot). This is already not quite the same as "most of [Americans] could expect to live all of 47 years."

     But the 47 years is the average, and since there are many more people dying on the far left end of the age distribution curve (near age 0) than on the far right (near age 94), the average is biased downwards from the median, and thus the median is likely to be considerably higher than the average. (Simple, because oversimplified, example: If in a group of 10 people, 3 die at age 1, 4 die at age 50, and 2 die at age 60, and 1 dies at age 90, the average lifespan is 41.3 years, even though the median is 50 -- because more people die on the far left of the curve than on the far right, the average [41.3] is less than the median [50], and considerably more than half the people live to the average [41.3] age.) Thus, considerably more than half of all Americans born in 1900 would have lived to be over 47.

     (Note also that the 47-year figure, like most life expectancy figures, asks how long people born in 1900 would have been expected to live on average. It doesn't address what the quote literally refers to, which is how long people alive in 1900 would have been expected to live; I don't know of any sources for such a number.)

     Second, the life expectancy figures include the deaths of infants and children. Such deaths are tragic, of course, but infants and children aren't literally "American laborers toil[ing] in the fields." And even going beyond the literal, I think it paints a misleading picture to just cite a life expectancy of 47 picture when in reality we have very many children dying before age 10, but the survivors living on average until 60 or so.

     In fact, according to this data, Americans who survived until age 10 in 1900 did have an average lifespan of about 60 years (the data is broken down by sex and race, so I don't have the precise numbers, but 60 is likely the rough average). Not great for those who survived childhood, and awful for the children who died young and for those children's parents -- but not quite as grim as having most of American laborers being expected to live all of 47 years. (I have no evidence on the lifespan of American laborers who toiled in the fields, but I imagine that the data there was probably not that much different from the data for the country at large.)

     In any case, this doesn't materially undermine Balko's piece, which I much like. But it is an important thing to remember whenever one hears life expectancy numbers.

UPDATE: D'oh! My original post had an error in the portion labeled "First," because I foolishly characterized the life expectancy as a median rather than a mean. I've corrected that portion; thanks to reader Brock Sides for pointing this out to me.

FURTHER UPDATE: Mike Anderson (Mere Dicta) has some more on this.

 
[Eugene Volokh, 4/26/2004 01:49:40 PM]
Why prosperity really is pretty good: Radley Balko forcefully critiques those who harp too much on prosperity's discontents, in particular focusing on those people who are making much of our supposed obesity, general unhappiness, and frustration flowing from having too many choices. Some closing paragraphs, which are perhaps a titch hyperbolic but still pretty sensible:

We don't need to slow the engines of capitalism down, we need to ratchet them up, so their drippings reach places like Chad, Nigeria and Cambodia. It would be awfully selfish of us to deny the third world the fruits of our development simply because we're bored with the excesses of comfort. We need more production, coupled with wide-open trade, to bring the burdens of wealth articulated by the free market's wet blankets to the people who long to bear them.

We should strive to saddle women who scavenge city dumps in Cambodia and fistulas sufferers abandoned for coyotes in Niger with the tyranny of mustard, the frustration of rush hour gridlock, and the aggravation of spam email. We ought to work to make Bangladeshi parents agonize over putting their hyperactive sons on Ritalin. We ought to see how many Malaysians we can get addicted to Paxil, and Papua New Guinean housewives to Valium.

When the critics of capitalism are reduced to mining the suburbs for languor and tedium, when consumers in market economies gripe not about scarcity or pollution, but about too many ketchups and self-check grocery aisles, perhaps it's safe to say that free-marketeers may finally have the central planners on the ropes.

Let's see how long we can keep them there, and how many of the world's poor we can infect with the afflictions of prosperity while we're at it.

 
[Eugene Volokh, 4/26/2004 01:43:17 PM]
More on Why do they hate us? Reader Adam Badawi writes, apropos my post on the virulently anti-Semitic libels being printed by Egyptian government newspapers:

As I am of partial Egyptian heritage I had a couple reactions to your post. First, the writer's comments are obviously bigoted and delusion. It saddens me when I read the anti-Semitic bilge that often comes out of the Arab press. Second, I think you are incorrect to suggest that these articles contribute to the Arab hatred of America and Jews. As you note in your post Al-Gumhouriyya is a government run newspaper. For this reason a lot of Egyptians mock this particular periodical for the farcical nonsense it produces. It is the mouthpiece of a corrupt and authoritarian regime and as a consequence it has a substantial credibility problem. I do not mean to downplay the animus that exists in the Arab world toward Israel and American policy, and to somewhat lesser extent toward Jews and Americans. There clearly is problem here -- I just don't think that government propaganda is the source of that problem. I have many more thoughts on these issues, but I also have a dissertation to finish in the next month so I'll have to stop here. . . .

I agree that we shouldn't assume that all of the anti-American and anti-Semitic feelings in the Middle East are caused by propaganda from government newspapers. But I suspect that they do indeed have something of an effect, certainly not on everyone, but on quite a few. Even if a lot of Egyptians mock Al-Gumhouriyya, quite a few others might be more open to its message. I of course can't be sure, since I'm not remotely an expert on Arab public opinion; and my correspondent might be much more knowledgeable about this. Still, it seems to me that these sorts of attacks are indeed likely to have an aggregate effect.

 
[Eugene Volokh, 4/26/2004 12:21:10 PM]
"Diaperless Babies Seen as Earth-Friendly Solution":

As environmentalists celebrate the 34th annual Earth Day, some in the green movement are now advocating "diaper-free" babies to help save the planet.

Citing concerns about plastic disposable diapers clogging landfills and the amount of washing and detergents that cloth diapers require, many environmentalists are taking a page from tribal cultures and seeking to eliminate the use of the baby diapers altogether. . . .

I'm hardly an expert on this, but my guess is that the presence of extra human fecal matter -- which seems likely to happen notwithstanding the claim that "[i]nfants give recognizable signs of imminent peeing and pooping [and] it's possible to learn your infant's signs" -- is more of an environmental burden, both from a quality-of-life perspective and a public health perspective -- than extra space being consumed in landfills. As with many things, I doubt that "tribal cultures" have much to teach us on this score.

 
[Eugene Volokh, 4/26/2004 11:51:07 AM]
Most dangerous jobs: Apropos my post below, reader Barry Jacobs passes along the data on the 10 most dangerous jobs, expressed in yearly job-related fatalities per 100,000 people:

Timber cutters 117.8
Fishers 71.1
Pilots and navigators 69.8
Structural metal workers 58.2
Drivers-sales workers 37.9
Roofers 37
Electrical power installers 32.5
Farm occupations 28
Construction laborers 27.7
Truck drivers 25

Source: Bureau of Labor Statistics; survey of occupations with minimum 30 fatalities and 45,000 workers in 2002

Of course, the Presidency would fall below the Bureau's thresholds.

 
[Tyler Cowen, 4/26/2004 10:37:44 AM]
Reason for optimism? Diego Gambetta is one of my favorite social scientists. His writings on the Mafia and on trust are classics. I offer you a recent article by him on rationality and terrorism. Most importantly, he addresses the question of will this happen again. Here is one money quote:

"9/11 is a wild outlier among terrorist acts generally and also with respect to other actions attributed to al Qaeda. Moreover, the perpetrators themselves seem to be far out on the spectrum of dangerous individuals. While there is no dearth of suicide-mission volunteers, very few people share Mohamed Atta's traits: highly skilled, methodically inclined, and ready to die. He acted and succeeded both as an organizer and as a perpetrator, unlike most other suicide missions in which different people hold these two roles. The lucidity and composure required by an organizer stand in contrast with the trance-like state needed to go on a suicide mission. Atta, the real-life approximation of a James Bond villain, was able to square that circle. Moreover, the attackers did not use WMDs and were extremely lucky not to be detected in time.

Furthermore, almost all the scary cases "uncovered" since 9/11-and widely discussed by politicians and the press-have turned out to be false alarms. In his February 2003 United Nations speech, Colin Powell mentioned 16 North African men arrested in Spain as an example of the links between Osama bin Laden and Baghdad. Now released, they have sued Jose María Aznar, the former Spanish Prime Minister, for slander. Even the case of Jose Padilla-the U.S. citizen arrested in May 2002 and held as an enemy combatant for allegedly planning to steal radioactive material to make a "dirty bomb"-has not yet produced criminal charges. The U.S. Court of Appeals for the 2nd Circuit ruled that he must now be freed from military custody.

Third, the several failed and foiled attacks reveal that the terrorists use low-level technology, and exploit unbalanced individuals, nothing like Atta. Remember Richard Reid, the British man who tried to blow up a plane by exploding his shoes. Or the four Moroccan men arrested in Rome with a map of the aqueduct and four kilos of "potassium ferrocyanide," described by experts as a pretty harmless substance when distributed through water. Or the five Algerian men arrested in London in early 2003 allegedly trying to produce ricin, a highly poisonous substance extracted from castor oil for which there is no antidote (it recently appeared in Senator Bill Frist's office). Tony Blair said the find showed that "this danger is present and real and with us now-and its potential is huge." But the quantities of ricin found were tiny-so tiny, in fact, that they can no longer be found. Producing ricin with what turned out to be little more than a "chemistry set" is not easy, and last October the prosecution charges had to be scaled down to the attempted rather than the actual production of a chemical weapon. The only attacks with unconventional weapons anywhere in the world so far remain the mysterious anthrax case in the United States and the March 1995 spread of sarin gas in the Tokyo subway by the Aum Shinrikyo cult whose leader has just been sentenced to death."

Obviously it is good news if this interpretation is correct. It is also important to keep this in mind when asking why the Bush and Clinton administrations did not take terrorist threats more seriously. Gambetta also tries to explain why the U.S. and Europe are so far apart over the Iraq war. Read the whole thing, as they say.

 
[Jacob Levy, 4/26/2004 09:46:15 AM]
On a spring weekend... Two posts at Crooked Timber on Friday, none on Saturday or Sunday.

Three posts on Saturday and Sunday combined here at Volokh, even though Eugene's finished reading the latest Stephenson doorstopper. (I haven't started it yet. Conference season.)

Nothing since Thursday from Drezner.

Nothing since Thursday from John and Belle, who admittedly have an excellent and cute excuse.

One guest post and one post from Mark Kleiman over the weekend.

What, does everyone suddenly have a life or something?

UPDATE: Apprarently Crooked Timber has been active, but they've moved servers and I can't seem to access the new site that will show me all of the weekend posts.

 
[Randy Barnett, 4/26/2004 09:09:35 AM]
Lund & McGinnis on Lawrence v. Texas: On his Legal Theory Blog, Larry Solum has an interesting post today on Nelson Lund and John McGinnis's recent paper on Lawrence v. Texas in which they take issue with my analysis of the case in Justice Kennedy's Libertarian Revolution. While I have a very high regard for both these scholars, I agree with Larry's response to their comments concerning the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

I do not defend Lawrence on the basis of the original meaning of either the Ninth Amendment or the original meaning of the Due Process Clause of the Fourteenth, but instead on the Privileges or Immunities Clause that restricts state power to infringe the natural rights (or "immunities") of its citizens and the additional rights (or "privileges") created by the Bill of Rights.

Reasonable scholars may disagree on the original meaning of this clause, but this question cannot be addressed without confronting and engaging seriously with the evidence of original meaning, such as what I present in Restoring the Lost Constitution, and in my recent article, The Proper Scope of the Police Power of States, in the Notre Dame Law Review, vol. 79, pp. 429-495. (Unfortunately, I have not yet uploaded the final version of this article, which differs markedly from the version on SSRN.) In it, I argue that the proper scope of the police power is the protection of the rights of citizens from infringement by others, either after the fact by means of criminal and tort law, or before the fact in the form of necessary regulation of liberty. I should add that this power is in addition to the power of the state to control public property in its capacity of owner, subject of course to constitutional constraints.

In addition, the question of whether someone has or has not violated the rights of others has traditionally been handled by the private law categories of property, contracts and torts. Rather than authorize an independent philosophical inquiry by federal judges--even by "a Supreme Court staffed with nine Randy Barnetts"--I would have them generally defer to state law on this issue, as they now do in diversity cases. That this may sometimes be a difficult line to draw, especially where legislation codifies private law rights, does not eliminate the pressing need to draw it, lest the police power become unlimited and tyrannical, subject only to majoritarian processes.

Every interpretation of the Constitution that takes seriously the limits of government power at the state and national level must make similar distinctions. Two examples: the proper interpretation of the Commerce Clause requires the sometimes vexatious distinction between interstate and intrastate commerce; the protection of the freedom of speech must distinguish between rightful speech and fraud. In a system of federalism, which both Lund and McGinnis strongly support, difficult lines must be drawn. The same is true with assessments of the proper scope of state power.

Much state legislation restricting liberty cannot plausibly be characterized as the protection of the rights of others, and by this criteria, the "antisodomy" statute in Lawrence is an easy case.

One final point to preempt some email responses: I am not asserting the need to distinguish activities that "harm others" from those that do not--a distinction employed by Justice Kennedy in Lawrence, but not be me. In my view, we are entitled to harm others in a variety of ways. For example, when I open a restaurant across the street from yours and attract all your customers, I harm you, but am acting within my rights. On the other hand, If I were to blow up your restaurant inflicting the exact same loss of trade, I am not just harming you, I am harming you by violating your rights. Preserving the limits on government power requires that this distinction rightful and wrongful, rather than harmful and nonharmful, conduct be maintained. And this is the topic of most of the first year of law school in the subjects of property, contracts, and torts.

 
[Eugene Volokh, 4/26/2004 08:14:53 AM]
Dangerous jobs: How many jobs in the U.S. can you think of where the death rate from homicide alone has been nearly 2%/person/year (nearly 10%/person, with an average job tenure of 5 years)?

     I suppose there might be some specialized high-risk military categories during wartime that fit this profile, as well as perhaps some high-risk civilian job categories in the pharmaceutical distribution and urban social club sector. But focusing on legal civilian occupations, I doubt that there are any -- other than the President of the United States, of course. As my friend Raquelle de la Rocha pointed out, imagine what this must do to his worker's comp premiums.

UPDATE: Some people dismiss the historical examples on the grounds that they were before modern Secret Service protection, and that these days the risk of assassination is much less. Of course, Secret Service protection may well make a difference, and it's impossible to predict such risks with any accuracy. But given that Presidents Ford and Reagan avoided being killed largely by chance -- even though, as best I can tell, they had a roughly comparable degree of Secret Service protection to what is available now -- I suspect that assassination will continue to be a serious threat to Presidents, at least unless they drastically cut back on their public appearances (which would be unfortunate, and right now seems unlikely).

 
[Juan Non-Volokh, 4/26/2004 06:21:01 AM]
Astroturf Opinion: William M. Adler reports on astroturf op-eds in a Washington Post Outlook piece. Adler’s correct that this phenomenon is fairly widespread. Industry groups are always looking for compelling surrogates to advance their message. While one should be able to evaluate an argument without regard to the author, it helps if a spokesperson has academic credentials or the appearance of independence. My only real quibble with the piece is the suggestion that industry had a monopoly on astroturf articles. They may do it more often, but non-profit public interest organizations do it as well. Activist groups distribute sample op-eds and letters to the editor with regularity, and often ghost articles to be signed by high-profile personalities.

In my public life, I get approached to do astroturf op-eds all the time. Typically what happens is that I get contacted by someone who works for a given industry or political group, or perhaps a PR shop, trying to convince me that I should write an article about their pet issue. Those I know have given up trying to pay for me for such things, but they’ll still offer to help place anything I produce, if not write the article for my byline. My response to these entreaties is always the same: I appreciate receiving any information folks want to send me – especially if I can trust them to give me accurate material or it’s a subject I know very well – but I will not take money to write an article or op-ed, and I’ll never let someone else draft something to go under my byline (and that goes for this pseudonym as well). If other policy experts would hold to this view, the astroturf op-eds would quickly disappear.

Sunday, April 25, 2004

 
[Juan Non-Volokh, 4/25/2004 08:07:58 PM]
Sunday Song Lyric: There are not many new bands I like all that much. Maybe that's part of getting older; the songs off one's youth are indelibly written across one's memories, such that later music fails to have the same effect. Or at least it seems that way sometimes.

One new band I like quite a bit is Maroon 5. I caught them live last fall -- and I recommend them -- but will miss them when they come back through town this summer. Nonetheless, I thought I'd select one of the tracks -- "Shiver" -- off their album Songs about Jane for this week's lyric. Here it is:

You build me up
You knock me down
Provoke a smile
And make me frown
You are the Queen of Runaround
You know it's true

You chew me up
And spit me out
Enjoy the taste
I leave in your mouth
You look at me
I look at you
Neither of us know what to do

There may not
Be another way to your heart
So I guess I'd better find a new way in
I shiver when I hear your name
THink about you but it's not the same
I won't be satisfied 'til I'm under your skin

Immobilized by the thought of you
Paralyzed by the sight of you
Hypnotized by the words you say
Not true but I believe 'em anyway

So come to bed it's getting late
There's no more time for us to waste
Remember how my body tastes
You feel your heart begin to race

 
[Juan Non-Volokh, 4/25/2004 04:18:38 PM]
WHO's Bad at Fighting Malaria: Malaria is on the rise in most of sub-Saharan Africa, despite an international campaign to control its spread. In Africa alone the disease kills approximately 3,000 people per day. Six years into the World Health Organization’s “Roll Back Malaria” campaign, malaria incidence has increased. According to Roger Bate of Africa Fighting Malaria “the main cause is the failure of the very campaign organized to combat the disease.” Worse, WHO seeks to explain away this failure on other factors, such as climate change, that have played little, if any, role in malaria’s spread.

WHO’s efforts focus on the use bed nets – to protect families from malarial mosquitoes while they sleep – to the exclusion of old-fashioned mosquito control and a new generation of relatively effective drugs. South Africa is the one African nation where malaria control efforts appear successful. Key to that nation’s success is the use of the pesticide DDT on the interior walls of buildings – a measure both WHO and the USAID oppose despite its demonstrated effectiveness. South Africa has also turned to a new anti-malarial drug, ACT, which is more effective than its predecessors. Importantly, use of ACT is affordable in South Africa because the use of DDT has greatly reduced the number of infected people needing treatment.

Together, DDT and ACT are a powerful anti-malarial team, especially when combined with other mosquito eradication and prevfention efforts. Bate concludes “Malaria can be combated effectively; all it takes is the will to do so.” Alas, Bate demonstrates, it appears WHO and other international agencies lack that will.

 
[Tyler Cowen, 4/25/2004 06:42:59 AM]
Do the Saudis manipulate oil prices before U.S. elections? Read the ever-insightful Randall Parker. The answer of course is no. Here is just one bit:

"Hey, if it is standard practice for the Saudis to lower prices before US Presidential elections then maybe we should amend the constitution to reelect presidents yearly. Think of all the money we'd save.

Given that the price of oil is now at about $35 per barrel if the Saudis have a plan to help Bush it must be a pretty weird plan. A decline in oil prices of, say, $10 per barrel would take a while to filter down to gas station prices and lower oil prices would take a while to boost the economy. Bush needs a robust economy with declining unemployment most of all. Current Saudi oil production levels are therefore not helping Bush to be reelected."

I also recommend Parker's two recent posts on Iraq, click here and here. Parker writes: "...what is going on in Iraq is a civil war and US troops just happen to be standing in the middle of it."