The Volokh Conspiracy

Tuesday, October 12, 2004

Corporate law and Sinclair Broadcasting:

Corporate law maven Stephen Bainbridge writes:

Sinclair Broadcasting Group Inc., which owns 60-odd TV stations in many major US media markets, has ordered its stations to preempt ordinary programming in order to air "Stolen Honor: Wounds That Never Heal," a film about Senator John Kerry's Vietnam record that many regard as being anti-Kerry.

Some have suggested that Sinclair shareholders sue Sinclair's board of directors to prevent the airing of the program and/or to recover damages. Would such a suit succeed? The short answer: almost certainly not. The long answer follows. . . .

Go to his post, linked to above, for that long answer.

Even more swamped than usual:

Please expect even slower response to e-mail (and more likelihood of no response at all) than usual. Very sorry.

Another anti-New Deal Cartoon from the Chicago Defender:

Hundreds of thousands of African American farm laborers were forced off their land by the New Deal's two Agricultural Adjustment Acts. As economic historian Gavin Wright points out in his book Old South, New South, the New Dealers wanted to force the South to shift from an agricultural and low-wage economy to a modern, industrial, higher-productiviy and wage economy. Wright suggests that the New Deal policy worked out in the end, though this happy ending strikes me as more fortuitous than causal. Regardless, there was great short-term human cost to the New Deal's more tepid version of Stalin's and Mao's modernization programs, as this Chicago Defender cartoon suggests. Moreover, there were some negative long-term consequences as well. Contrary to popular myth, the Great Migration in the '40s and '50s was as much a result of "push" (AAA, mechanization (not always unrelated to the AAA), uniform national minimum wage) as "pull," and African Americans who went North found themselves living in areas with among the highest unemployment in the country, sowing some of the seeds of today's "underclass" (see chapter 5 of this book).

Age and Maturity of Decisionmaking:
Tomorrow the Supreme Court will hear oral argument in Roper v. Simmons, a case that considers whether the Eighth Amendment prohibits capital punishment for crimes committed at the age of 16 or 17. One of the interesting questions potentially implicated by the case is whether people who are 16 and 17 tend to make less mature judgments than adults.

  As best I can tell, the most relevant scientific study on this question is Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable than Adults, 18 Behav. Sci. & Law 741-760 (2000). An excerpt from the abstract summarizes the basic goals and conclusions of the study:
This study examines the influence of three psychosocial factors (responsibility, perspective, and temperance) on maturity of judgment in a sample of over 1,000 participants ranging in age from 12 to 48 years. Participants completed assessments of their psychosocial maturity in the aforementioned domains and responded to a series of hypothetical decision-making dilemmas about potentially antisocial or risky behavior. Socially responsible decision making is significantly more common among young adults than among adolescents, but does not increase appreciably after age 19. Individuals exhibiting higher levels of responsibility, perspective, and temperance displayed more mature decision-making than those with lower scores on these psychosocial factors, regardless of age. Adolescents, on average, scored significantly worse than adults, but individual differences in judgment within each adolescent age group were considerable.
The study isn't available online, but I obtained a copy and gave it a quick read. (Or at least I tried — it's not easy stuff to understand.) A few quick thoughts about the study:

  (1) The data was generated from self-reported questionnaires. Subjects of different ages were asked to report how they would respond in various hypothetical situations, and the authors of the paper reached their conclusions about the maturity of people of different ages by assuming that the answers were accurate. I am no expert on these matters, but I wonder if this method introduces a potential bias: I can imagine that adults might feel obligated to describe their behavior and reactions as more mature than adolescents.

  (2) The authors compared the attitudes of juveniles to young adults by comparing the attitudes of junior high and high school students to the attitudes of college students. Again, this seems like a possible source of bias: my sense is that as you go up the educational ladder, you begin to see a smaller cross-section of persons of a given age. Lots of people don't go to college, and it seems plausible that the subset of persons who go to college are likely to be more mature than others. To the extent that the paper finds that high school students are less mature than college students, we might wonder whether this is a characteristic of people who go to college rather than a characteristic of their age.

  (3) The authors conclude that "[i]ndividuals differ considerably in the timing of the development of psychological maturity, making it difficult to define a chronological boundary between immaturity and maturity." (p758) At the same time, they find that "some time during late adolescence" most people have a jump in their level of psychosocial maturity. For the purpose of the study, the authors define psychosocial maturity as a combination of three factors: a person's sense of personal responsibility for their actions, the degree to which a person recognizes both short and long-term consequences of their actions, and a person's ability to exercise restraint and self-control over their actions.

  UPDATE: After reading over the conclusions of the study one more time, I think I was a bit inaccurate in saying that the study finds a "jump" in maturity in late adolescence. Rather, the study finds that the psychosocial maturity of most people reaches a plateau after late adolescence, and that there is "important progress" in the development of psychosocial maturity during the period of late adolescence.
The Rapid Decline of Free Speech in Canada:

Quebec's Human Rights Commission has ordered a man to pay a $1,000 fine because he referred to another man as a "fifi," the French equivalent of "fag." Worse yet, the comment wasn't made to the complainant (which would at least raise red flags about an implicit threat or true harassment of the individual), but to his "traveling companion." According to the CBC, the "Rights Commission ruled that the term was an inappropriate way of referring to homosexuals and adds to the disgrace and lack of respect of human dignity people are entitled to."

Now, it's obviously not nice to call someone a "fifi." But when the State can punish individuals for "inappropriate" comments they make in private, noncommercial contexts, the slippery slope towards authoritarianism is steep indeed. This, of course, is not the first example of the growing Canadian intolerance of freedom of speech.

Thanks to Professor Moin Yahya for the tip.

Any Canadians offended by most post should read this before emailing.

New Blog on the "Kerry Doctrine":

My friend and William and Mary law professor Alan Meese is now blogging about the "Kerry Doctrine" and related matters. Check it out.

Monday, October 11, 2004

How do we pronounce "Volokh"?

A reader asks, so we answer: It rhymes with "pollock" (in English, of course; it's different in Russian).

LOTS OF INTERESTING POSTS

up right now over at Vice Squad. Check 'em out.

A bit more on the Indymedia subpoena story:

InstaPundit posts about this, together with an e-mail from a reader speculating why the server company may have just given FBI the whole servers:

I work in a huge company with a lot of rack-mounted servers.

We have no "documented process" that an Operator (or even Technician) could provide the contents of a server.

We have mainframe tape drives and remote backup systems, but they are all proprietary -- and complicated to use.

It's not like we can just burn a DL-DVD (or 10+) and provide a backup of the hundreds of gigs of data that a server holds. Not only do we not have the burner or the media, we also don't have the procedures. If it's not documented and approved, an Operator cannot perform the action on the production data. And only an Operator can perform tasks relating to production data -- not Technicians.

It would be far, far easier to just shut down the boxes, pull them, and give them to the Feds. Two non-production servers could be re-assigned and automated restores queued. The process for swapping out failed servers (which is what this simulates) is documented and proceduralized.

That's how we would handle it, if it ever came up.

I can't say, though, whether this would be the standard operating procedure at most hosting companies.

U of C Lawprof Douglas Lichtman

is guest-blogging over at Crescat on self-help and the law. It's very interesting stuff; the first post is here, and the second is here.

Elections and Wars:

Over at the Yin Blog, law prof Kevin Heller points to this article in the L.A. Times about the Bush Administration apparently delaying an offensive in Iraq until the election is over.

Tentative Thoughts on the Indymedia Server Story:
I have a few quick and tentative thoughts on the Indymedia server seizure story that Eugene discusses below.

  First, it is important to recognize that this is an Italian and Swiss investigation, not a U.S. investigation. U.S. officials are involved only because the U.S. is obligated to help the Italians and Swiss under international treaties known as Mutual Legal Assistance Treaties. These treaties say that when one country is investigating a felony crime in their country and evidence is located in a second country — not uncommon in Internet-related cases — the second counrty must help the first obtain the evidence so long as the conduct under investigation would be a crime in the second country as well. For example, if someone in the U.S. runs an illegal business using computer servers in Italy, U.S. investigators can request legal assistance from the Italians to help gather evidence and send it to the United States for use at trial. This case is the reverse: it is a Swiss and Italian investigation, and the Swiss and Italians requested that U.S. officials help them gather evidence in the U.S.

  U.S. officials still must comply with the First and Fourth Amendment, as well as other laws; they can only obtain the needed court order if doing so would be allowable under United States law for an equivalent domestic investigation. Given that teams of DOJ career lawyers screen and review MLAT requests before they are processed, the chances are quite high that this was all done correctly under United States law.

  Second, it remains unclear whether the FBI ordered the server owner to hand over its hardware, and it seems quite unlikely that the FBI ordered any websites shut down. This story suggests that the FBI obtained a subpoena requesting information on behalf of the Italian and Siwss authorities from Rackspace, a U.S.-based web-hosting service with a branch in the UK that has Indymedias as one of its clients. We don't know if the subpoena merely requested that Rackspace give the FBI specific information about how its servers had been used, or whether it was actually a request to hand over the server within a specific period of time. (The latter seeems rather unlikely to me, but you never know.) All we know is that Rackspace complied with the subpoena by handing over servers located in the UK, apparently to UK authorities (although that's unclear, too.) It seems that some websites were temporarily disabled when Rackspace switched servers.

  More when the facts become clearer...
More on Kerry, terrorism, and prostitution:
I appreciate Orin's post about Kerry's experience as a lawyer fighting organized crime; and it might indeed shed light on why Kerry used the odd analogy that I discussed in this post.

Nonetheless, even if Kerry was hearkening back to his experience prosecuting organized crime — including organized crime that ran illegal gambling, and perhaps even (by analogy) organized crime that ran prostitution — I'm still puzzled why he'd use prostitution and illegal gambling as an analogy, rather than murder, arson, extortion enforced by violence, and so on.

After all, when prosecutors crack down on a crime organization that controls prostitution, it's not just that they won't eliminate prostitution altogether: They're highly unlikely to even substantially diminish it. They may destroy the organized crime-run prostitution rings, but this will still leave a vast amount of prostitution out there, perhaps even involving the very same prostitutes.

In fact, cracking down on the crime organization might even sometimes increase the amount of prostitution, if for instance the organization was violently blocking new competition. In any case, while organized crime control of prostitution might be largely though not completely supressible (perhaps most effectively by legalizing prostitution), prostitution itself does not seem to be even largely suppressible, given current, past, and likely future political realities. Certainly law enforcement doesn't treat it as something that can be vastly reduced, or that is even worth vastly reducing.

I don't know to what extent this is true of illegal gambling, but I suspect that something similar operates there as well. One can certainly fight, with considerable success, organized crime control of gambling. But I suspect that most prosecutors' offices don't expect that they can vastly reduce the amount of illegal gambling as such, and don't try very hard to do it. And again, the main strategy for reducing illegal gambling seems to be broadening legal gambling.

So I continue to be troubled by Kerry's choice of analogies in his quote, which as you recall is this:

When . . . Kerry [was asked] what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."
It seems to me that our attitudes towards what is a not deeply threatening level of terrorism (which, I agree, is more than zero) should be vastly different from our attitudes towards what would be a tolerable level of prostitution or illegal gambling. And the difference is so great that I wonder whether the person who makes such an analogy is missing something big.

And more broadly, my thought experiment challenge in the Analogy about Analogies post still stands:

Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.
The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?
Let's even stipulate that Governor Bush had earlier been a prosecutor who fought crime organizations that had controlled illegal gambling and, let's say, prostitution. Would that really challenge our likely reaction to his statement?
Indymedia server seizure:

This story about the seizure of some Indymedia servers is intriguing and potentially troubling, depending on the relevant facts, but maddeningly vague about those facts (though the vagueness might well be because the Web hosting company is quiet, not because the BBC knows stuff it isn't telling):

The FBI has shut down some 20 sites which were part of an alternative media network known as Indymedia.

A US court order forced the firm hosting the material to hand over two servers in the UK used by the group. . . .

The reasons behind the seizure are unclear but the FBI has reportedly said the action was taken at the request of Italian and Swiss authorities. . . .

The servers affected were run by Rackspace, a US web hosting company with offices in London.

It said it had received a court order from the US authorities last Thursday to hand over the computer equipment at its UK hosting facility. . . . It said it was responding to an order issued under the Mutual Legal Assistance Treaty. Under the agreement, countries assist each other in investigations such as international terrorism, kidnapping and money laundering[.]

The reasons behind the action against the Indymedia websites are unclear. . . .

"Indymedia had been asked last month by the FBI to remove a story about Swiss undercover police from one of the websites hosted at Rackspace," said [Indymedia] in a statement.

"It is not known, however, whether Thursday's order is related to that incident since the order was issued to Rackspace and not to Indymedia." . . .

A FBI spokesperson told the AFP news agency that it was not an FBI operation, saying the order had been issued at the request of Italian and Swiss authorities. . . .

The seizure has sparked off protests from journalist groups. . . .

The UK site of Indymedia is back up and running but several of the other 20 sites affected are still offline. . . .

Here are a few possibly important points, though based on guesses.

1. It sounds to me like the order involved was "turn over evidence," not "stop operating." The servers seem to have been seized because they supposedly contain evidence relevant to some investigation. There doesn't seem to be any legal requirement that the sites be shut down, though of course they'll be down for some time while the hosting company (or some other company, if this one doesn't want to be involved any more) puts the sites — presumably from backups or cached versions — on some other server.

2. It also sounds like the order was a subpoena, not a search warrant (or some special order that's closer to a subpoena than to a search warrant). In the U.S., police searches of private property must comply with the Fourth Amendment, which often requires a warrant based on probable cause to believe that the property contains evidence of a crime. But subpoenas — orders that someone testify, or turn over documents — do not require probable cause. They can be issued based simply on a showing that they are reasonably likely to yield relevant information, directly or indirectly.

You can be called to testify (even to testify about First Amendment activity, such as a defendant's conversations with you) without a showing of probable cause. Likewise, you or a business can be called to turn over material in your possession without such a showing.

I suspect that this case involves a subpoena rather than a search warrant because I doubt the FBI would have any authority to execute search warrants in the U.K. I therefore think that they delivered the order to the company, the company complied, and the FBI hauled away the stuff. [UPDATE: My friend and coblogger Orin Kerr points to this article, which makes clear that the order was indeed a subpoena, not a search warrant.]

3. In the U.S., there are special First Amendment restrictions on seizures of constitutionally protected material, developed in the obscenity context but applicable elsewhere. To quote the Supreme Court in Fort Wayne Books v. Indiana (1989),

[T]his Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." . . . [T]he Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure 'designed to focus searchingly on the question of obscenity.'"

We refined that approach further in our subsequent decisions. . . . [T]he Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.

4. Nonetheless, it's not completely clear what exactly this would mean here. First, the classic distinction between (A) seizing a copy of a book for evidence purposes and leaving the store free to distribute other copies and (B) seizing the whole stock because you think it's all likely to be contraband doesn't quite apply here: The seizure is for evidentiary purposes, but it's likely to also interfere with Indymedia's ability to distribute its material, albeit likely only for a few days, if the material is properly backed up. It thus seems to fall into a gray area between the seizure of one book and the seizure of all copies of that book (though maybe it's close to the seizure of the movie theater's reel of film, which is likely the only copy in its possession, but which likely could be replaced in a few days). Second, it's not clear whether the rules I cited above, which were developed in the context of searches, also apply to subpoenas.

5. It's also not completely clear how these rules apply to subpoenas outside the U.S.; I would presume that a U.S. court order served on a U.S. company would be governed by the Fourth Amendment even if the property involved is overseas, but I can't be positive. I would also presume that the order would also be constrained by the First Amendment (see below).

6. Finally, the most important question is the vaguest of all: What exactly is the underlying justification for the subpoena? If there's reason to believe that the Web server contains evidence of, say, illegal money laundering activity, and that the best way of getting this evidence is getting the entire server rather than just having the company turn over the records related to one particular account, the subpoena seems eminently justifiable.

On the other hand, if the relevant information is obviously in just one particular place on the disks, the normal procedure would be to have the company turn over copies of those records. I doubt that AOL, for instance, should be asked to turn over a whole computer (or array of computers) simply because there's a subpoena for one subscriber's records. A subpoena that asks for the whole server

Likewise, if the subpoena is for evidence of what would in the U.S. be constitutionally protected speech — e.g., if some country is subpoenaing the computer to get evidence of anti-Islamic or neo-Nazi speech — then I don't think a U.S. court should be allowed to order it seized. (There may be some uncertainty about that because the information is not in the U.S., see item 5 above; but my sense is that the First Amendment would apply to U.S. court orders, and U.S. courts' enforcement of foreign requests, aimed at U.S. citizens or businesses even if the order is to be enforced outside the U.S. There is some caselaw, for instance, barring U.S. courts from enforcing foreign court judgments that are based on what would in the U.S. be constitutionally protected speech; not exactly what's going on here, but close in some respects.)

7. Finally, I think the Privacy Protection Act of 1980 probably wouldn't apply; as best I can tell, it has generally been read as applying only to government searches of media offices, not subpoenas. See, e.g., State v. Salsbury, 129 Idaho 307 (1996) ("Basically, the act implements a 'subpoena first' rule which requires, with a few exceptions, that a law enforcement officer use a subpoena first, rather than a search warrant to obtain evidence from any person planning to publicly communicate information."). It's true that here the subpoena would be followed by a government search of the servers, but it seems to me that the Privacy Protection Act would likely still not apply — but I can't claim to be an expert on the Act.

* * *

In any case, those are my tentative thoughts on what seems an interesting — and potentially highly controversial — story. I would love to hear (1) more information on the factual details behind the story, if anyone knows them, and (2) more information on legal questions from any lawyer or law professor who is an expert on the field (lay speculation about the way things ought to be is probably not going to be that helpful).

Possible Explanation for Kerry's Analogy:

In two posts below (see here and here), Eugene questions John Kerry's underlying thinking about the war on terror based on a somewhat odd analogy Kerry used in a recent New York Times interview. Here is the key quote from the Times story:

When . . . Kerry [was asked] what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

Eugene considers whether this comparison may reveal Kerry to be a bit soft on terrorism; of all the crimes to pick, Kerry happens to compare terrorism to illegal gambling and other crimes that are generally considered low priorities for law enforcement.

  Eugene may be on to something, but there is another, more charitable, explanation for Kerry's partciular choice of words. Kerry's first big job after law school was as the First Assistant District Attorney (the #2 prosecutor) with the Middlesex County (Massachusetts) DA's Office. According to this Boston Globe article, Kerry overhauled the office in part by focusing on the threat of organized crime:

With a $3.8 million infusion of federal funds he helped obtain, Kerry nearly tripled the staff . . . . He launched initiatives that were innovative at the time: special units to prosecute white-collar and organized crime . . . and a system for fast-tracking priority cases to trial. He also directed the investigation that led to the first conviction of Somerville's Howie Winter, one of the state's notorious gangsters.

According to this article, Howie Winter was notorious for running an illegal gambling empire:

Among the top cases on which Kerry worked was the prosecution of Howie Winter, an organized crime leader who ran gambling rackets in the Boston area and western Massachusetts. Winter was sentenced to 20 years in prison.

While Kerry's choice of analogies appears a bit strange at first, it seems plausible that he was simply relying on his experience setting priorities for the Middlesex County DA's Office back in the 1970s. Kerry prosecuted illegal gambling cases, and presumably had to defend his focus on such cases against critics who claimed that there was no point in prosecuting them.

  Of course, this doesn't mean that Kerry is right to see the war on terror as similar to his prior battles against organized crime and illegal gambling. But I think this history may shed some light on why Kerry chose the specific examples he did.

  UPDATE: Check out this CNN.com story about how the Bush campaign is planning to use the quote in campaign advertisements.

Sunday, October 10, 2004

An analogy about analogies:

Here's a thought experiment related to the Kerry quote below. Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.

The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?

Terrorism and prostitution:

From a long and interesting article in today's New York Times Magazine:

When I asked Kerry what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

I see Kerry's point: Terrorists, unlike Nazi Germany or the USSR, can't be entirely defeated, because there'll always be the possibility that some more springing up. We can end the war on some particular terrorists by killing them all or getting them to stop, but we can't end the war on terrorism generally that way. The best we can hope for is that there'll be a lot fewer terrorist attacks. That's certainly an important point, and it's worth keeping in mind.

But what remarkable analogies Kerry started with: prostitution and illegal gambling. The way law enforcement has dealt with prostitution and illegal gambling is by occasionally trying to shut down the most visible and obvious instances, tolerating what is likely millions of violations of the law per year, de jure legalizing many sorts of gambling, and de jure legalizing one sort of prostitution in Nevada, and de facto legalizing many sorts of prostitution almost everywhere; as best I can tell, "escort services" are very rarely prosecuted, to the point that they are listed in the Yellow Pages.

These are examples of practical surrender, or at least a cease-fire punctuated by occasional but largely half-hearted and ineffectual sorties. It's true that illegal gambling and prostitution aren't "threatening the fabric of [American] life," but that's because they never threatened it that much in the first place. One can live in a nation with millions of acts of prostitution or illegal gambling per year or per day. There are good reasons for simply calling off those wars altogether. Surely the strategy for dealing with terrorism must be very different, in nearly every conceivable way, from the strategy for dealing with prostitution or illegal gambling. (Maybe if Kerry had simply compared terrorism to organized crime, the analogy might have been a bit closer. But even there, it would be pretty distant, and in any event "organized crime" seemed in his quote to be a way of characterizing certain kinds of prostitution or illegal gambling offenses — he didn't even refer to the more harmful forms of organized crime.)

I realize that quotes in newspaper articles (yes, even in the New York Times) can be taken out of context. Still, this was a pretty long and self-contained quote, which suggests that Kerry was indeed making this analogy, and making it deliberately. And it strikes me as a singularly inapt analogy to make, an analogy that ought to make one question its user's underlying thinking about the problem.

Saturday, October 9, 2004

The Conspiracy Gets Results:

Earlier today FactCheck.Org revised its assessment of the vice presidential debate, correcting the error I noted here. Alas, while the posting notes it was modified on October 9, FactCheck.Org does not acknowledge that it made an error. That's unfortunate for an organization that prides itself on catching others' mistakes. Still, the correction is appreciated.

The Most Distorted Report?

David Brooks offers a very different take on the Duelfer report than most stories I've read, concluding:

I have never in my life seen a government report so distorted by partisan passions. The fact that Saddam had no W.M.D. in 2001 has been amply reported, but it's been isolated from the more important and complicated fact of Saddam's nature and intent.

It's a definite must read.

Update: Michael Barone concurs. (Link via the Blogfather.)

My Guy Definitely Won:

I like how ABC broke down its post-debate poll numbers into results from Kerry supporters and results from Bush suppporters. When asked to name the debate winner, participants from each side remained true to their team:

Kerry won

Bush won

Tie

Among Kerry supporters

85%

2

12

Among Bush supporters

1

84

13

Friday, October 8, 2004

Library Opposition Pushes FBI to Withdraw Subpoena for Records:
Michael Froomkin links (via Proof Through the Night) to this story from a Seattle TV station about a local library that has fought off an FBI subpoena for a list of names and addresses of who took out a book on Osama bin Laden.

  According to the story, a patron of the library reported to the FBI that someone had scrawled an allegedly pro-bin Laden comment into the margin of one of the pages of the book. Although the facts aren't entirely clear, it seems that the patron gave the book to the FBI, and investigators found the matter serious enough to obtain a subpoena ordering the library to disclose the names and addresses of the patrons who had checked out the book. (Note that this was a traditional criminal grand jury subpoena, not a Section 215 order or anything related to the Patriot Act.) I assume the FBI intended to interview at least some of the patrons to find out who had made the comment, but it's not altogether clear. In any event, the library objected to the subpoena in court. It argued that the subpoena could not be enforced because the FBI had no right to know who had checked out the book. As far as I know this legal argument has never been recognized as valid; nonetheless, the library's opposition was enough to pressure the FBI into withdrawing the subpoena.

  That's the story, at least as we know it so far. I find it hard to know what to make of it. As reported, the story is troubling; it's not clear why the FBI saw the comment scrawled in the margin as something serious enough to merit the time and resources that would go into contacting and interviewing the people who had checked out the book. At the same time, the fact that it is not clear from the story does not mean no such explanation exists. Stay tuned.
Loyalty Oaths at Presidential Campaign Events?:

NPR covers the story here. Thanks to reader Michael Fay for the link.

More from JibJab:

Go here for their latest, which is pretty good. Thanks to Right Side Redux for the pointer.

The Franklin Affair, AIPAC, and (Possible) Anti-Semitism:
Franklin is the fellow under investigation for allegedly passing U.S. state secrets to Israel via the pro-Israel lobbying group, AIPAC, a charge that I, along with everyone else familiar with AIPAC, find highly implausible, at least to the extent intentional violations of the law are said to be involved. Here's a bombshell about the story you might have missed, courtesy of Ha'aretz:
David Szardi, [sic: it's Szady] a high-ranking FBI official who is conducting the investigation of AIPAC, is the same person accused a few years ago of harassing a young Jewish lawyer from the CIA out of anti-Semitic motives, and even causing his discharge from the agency. In the trial (which has not yet ended) it was said that Szardi demanded the dismissal of the attorney for suspected pro-Israeli leanings. The arguments: he had been a counselor in a Jewish summer camp, his family contributes to Israeli charities and he is related to former president Ezer Weizman. The lawyer complained, and an investigation was launched against Szardi. The director of the CIA wrote a letter to the Anti-Defamation League in which he admitted that elements [other sources say language used in] of the investigation were "insensitive, unprofessional and highly inappropriate."
See also this column by Joel Mowbray, pointing out that the FBI is relying on some very dubious sources, and a press release from Rep. Robert Wexler, providing more details about the Szadi controversy. According to the September 30 Palm Beach Post, the FBI responds: "The suggestion that the FBI or any FBI official has influenced this investigation based on racial, ethnic or religious bias is simply unfounded, untrue, and contrary to the very values the FBI holds highest."

Related Posts:

  1. The Franklin Affair, AIPAC, and (Possible) Anti-Semitism:
  2. Spy Allegations Against AIPAC:
Bremer on Iraq:
In today's NYT:
The press has been curiously reluctant to report my constant public support for the president's strategy in Iraq and his policies to fight terrorism. I have been involved in the war on terrorism for two decades, and in my view no world leader has better understood the stakes in this global war than President Bush.

* * *

Mr. Kerry is free to quote my comments about Iraq. But for the sake of honesty he should also point out that I have repeatedly said, including in all my speeches in recent weeks, that President Bush made a correct and courageous decision to liberate Iraq from Saddam Hussein's brutality, and that the president is correct to see the war in Iraq as a central front in the war on terrorism.
As another might say, read the whole thing.

Update: Neither Josh Marshall nor Matthew Yglesias is convinced.

Thursday, October 7, 2004

breaking news from the Borowitz Report. "As the days tick down until Afghanistan's historic democratic election this Saturday, the fledgling democracy took an important step forward today, receiving its first shipment of negative political ads from the U.S. The commercials, full of lacerating personal attacks and half-truths about Afghan president Hamid Karzai and his opponents, will begin airing across the country as early as tonight." More here. Thanks to Michael Klein for the pointer.

"Is Colorado the New Florida"?

Chris at Politics Blog asks this, while discussing the Colorado initiative to allocate Colorado's presidential electors proportionally, rather than on a winner-takes-all basis. The post discusses (though doesn't purport to squarely answer) some potential legal challenges; definitely worth keeping in mind, since it could be a huge problem if the election ends up being very close.

Rethinking FISA: What Should the Rules Be?
One of the interesting things about the very controversial Foreign Intelligence Surveillance Act is that lots of people criticize it but few offer any alternatives. FISA, as it is known for short, is the set of laws that regulates most evidence collection within the United States in national security and terrorism cases. Whenever you hear about FISA, you tend to hear about its dangers: FISA creates a secret court that allows the government to obtain secret Section 215 orders, it imposes gag orders such as those struck down last week in Doe v. Ashcroft, its privacy protections were eroded by the Patriot Act, etc. But I wonder: what rules might we come up with from first principles to regulate this sort of evidence collection, and how far are those rules from the rules that FISA creates? In other words, if FISA is so bad, what are the better rules that should replace it?

  This is an enormous topic, obviously, so let me try to focus on just one example. Let's imagine the FBI learns that a suspected Al-Qaeda associate believed to be located in Saudi Arabia regularly uses a Hotmail e-mail account. They have heard rumors from sources in Saudi Arabia that the suspect and others are planning a terrorist attack in the United States. To try to identify the other members of the cell, the FBI might reasonably want to get a list of incoming and outgoing e-mail addresses used to send mail to and from the account. It might then go to those other accounts and repeat the process and look for connections, with the goal of using the linking of e-mail accounts to try to uncover the cell.

  Here's the big question: what rules should regulate the process by which the government can obtain this information? Hotmail is a California company, and the information relating to the 1st account would be stored in and obtainable from California. Let's assume that the FBI goes to Hotmail in California and explains the situation to its lawyers. Hotmail might reasonably decide that they don't want to cooperate absent some kind of official order: they want some official showing that this is a real investigation, not just a rogue officer. But what kind of showing should the government be required to make under the law before the investigators can compel the information?

  Should the government have to get a court order before compelling the information (as would be the case with a warrant), or it is enough that the ISP can challenge the request to compel if they find it faulty (as would be the case with a subpoena, or, at least according to DOJ, a national security letter)? What should the government have to show? Is it enough that sources in Saudi Arabia tell the FBI that this particular e-mail account is believed to belong to a member of Al Qaeda? Should there be a requirement that the government has to provide a court with more specific information than that? Should the government have to provide specific evidence of acts that the suspect has committed that lead the government to believe the suspect is planning attacks? Should the government have to show that the suspect is an agent of a foreign power? That he has known co-conspirators, and is not a "lone wolf"? Should there be any restrictions on Hotmail contacting the suspect to inform him of the government's order to compel? If so, what limits?

  I am no FISA expert, but my understanding is that some of the most controversial Patriot Act changes to FISA were designed to give the FBI powers to obtain information in cases such as this. Under the Patriot Act, as it amends the original FISA Act and the Electronic Communications Act, FBI intelligence investigators have two choices: they can issue National Security Letters without any prior judicial review under 18 U.S.C. 2709 — at least to the extent that this statute is not struck down by the Second Circuit in the DOJ appeal of Doe v. Ashcroft — or, they can go to the FISA Court and get Section 215 court orders. The low relevance standard is used (implicitly or explicitly) in both provisions: the information obtained just has to be relevant to a terrorism investigation, with no showing of specific facts or any connection to a foreign power.

  If the approach of Section 2709 and Section 215 is inappropriate, as I gather many people think it is, then exactly what set of rules should govern cases like this? (And no, I don't have the answer myself — I just think it's a very important question and wanted to get it out there for debate.)
Zealous Defense:
In Louisiana, a man by the name of Barbette Williams kidnapped and tried to murder a 6-year-old boy. The kidnapping ended with a 12-hour standoff in which Williams barricaded himself in a house and shot at several officers. Williams was charged with kidnapping and attempted murder and went to trial, where his defense attorney argued that Williams was not guilty by reason of insanity.

  Near the close of the defense attorney's case, Williams jumped up, grabbed his attorney, and slashed him in the face with a razor blade in an apparent effort to kill him. According to this story from the Associated Press, the wounded attorney had the following comment with respect to the slashing:
"I've contended all along that this guy is nuts, and to be honest, this pretty much confirms it."
Seen in a Stanford cafeteria last week:
A sign that said
Donut holes
2 for 25 cents
6 for $1.00
But fortunately the cafeteria was not in the Economics Department. By the way, after I mentioned this to the people behind the counter, they changed the sign -- it was now 2 for 30 cents, 7 for $1.00. That makes somewhat more sense. (Though what baked goods are ever normally sold in 7s? Is it a baker's half dozen?) Yet it seemed like a shame: A member of the public noticed an error, and the result is that the rest of the public now has to pay more. There oughtta be a law, I tell ya . . . .
WILL RICKY WILLIAMS FILE BANKRUPTCY?

An article in today's Washington Post raises the question of whether Ricky Williams of the Miami Dolphins will file bankruptcy. Under current law the answer is probably yest. Williams, for non-sports fans, was a star running back for the Miami Dolphins who suddenly retired before the beginning of this season, saying that he doesn't want to play for the Dolphins. In return, an arbitrator ordered him to refund $8.6 million in bonus and payments that he received from the Dolphins.

Is bankruptcy Ricky's answer? Probably yes. First, he could use bankruptcy to probably get out of the remainder of his contract with the Dolphins and put himself up for bid as a free agent. Second, he could dishcharge the $8.6 million obligation as a claim in the case.

Moreover, Ricky could probably still live pretty large in bankruptcy. Assuming he lives in Florida now that he plays for the Dolphins, and assuming he lives like a usual athlete, his house is probably pretty darn nice (usually in the several million dollar range). Because of Florida's unlimited homestead exemption, however, he would be entitled to keep his house in bankruptcy.

This also points up the disingenousness of opponents of bankruptcy reform who say that bankruptcy reform should be opposed because it supposedly does "nothing" to close the homestead exemption. Under current law, as just mentioned, Williams can keep his entire Florida homestead, assuming he lives there. But he was traded to the Dolphins from the Saints just two years ago (2002). If the bankruptcy reform act were actually ever enacted, there would be a 40 month waiting period (3 years and 4 months) before Williams could claim the Florida unlimited homestead exemption, and instead his homestead exemption would be capped. Thus, assuming that I am correct that Williams relocated from New Orleans to Miami when he was traded, the bankruptcy reform act would close the currently-existing loophole. Opponents of reform nonetheless seem to belive that the current system, which would allow Williams to keep a mansion, is more equitable than the system under the bankruptcy reform act.

To tell the truth, it has been a mysterty to me why athletes involved in contract disputes have not previously used bankruptcy as a mechanism for getting out of their contracts. Williams's decision to file bankruptcy to get rid of a contract he doesn't like follows in the footsteps of a wave of such filings in the 1990s, when recording artists similarly filed bankruptcy to try to get out of employment contracts they didn't like. Courts sometimes would toss those as bad faith filings, but there is little chance of that happening with Williams.

Update:

A reader called to my attention some news reports that Williams's agent has been in touch with the agent for Reggie Roby, a former Dolphins punter who threatened to file bankruptcy in the early 1990s in order to get out of his contract. According to reports, the Dolphins "freaked" at the prospect and decided to release him from his contract, so the strategy has never actually been tested (at least tha I have been aware of).

One other reader suggested that rejecting the contract might not make Williams a free agent, however, as the NFL Player's Association collective bargaining agreement might still tie him to the Dolphins, even if he did not actually have a contract with the Dolphins. There is precedent for this view as well, including Terrell Owens last year, whose contract with the 49ers expired, nonetheless, because his agent failed to file the appropriate papers to make him a free agent he was still stuck with the 49ers (who eventually traded him).

Wednesday, October 6, 2004

Department of Education letter to University of North Carolina:

This is the letter that David Bernstein referred to in his Hostile Environment Blowback post below, and it explains why the Department's Office for Civil Rights thought the professor's e-mail about the student's anti-gay comments constituted racial and sexual discrimination and harassment. The always excellent UCLA Law Library has kindly gotten a copy of the letter for me, and I thought I'd put it up.

(Note that there's been a bit of trouble with the UCLA servers today; if you don't get a response when accessing the files, just wait an hour and try again.)

UPDATE: The original post mistakenly said this involved religious discrimination and harassment -- I should have said racial and sexual discrimination and harassment. Sorry; that's the problem with blogging in a hurry. Thanks to reader Richard Riley for correcting this.

Fact-Checking FactCheck.Org:
I am a big fan of FactCheck.org. I think they do solid work analyzing the veracity of political claims and ads. I also think that their analysis of the debates has been valuable and even-handed. In their analysis of last night's vice-presidential debate, however, I think FactCheck.org got one wrong.

On the issue of the proportion of casualties in Iraq borne by the U.S., FactCheck.org reported the following:
Cheney disputed Edwards's statement — often repeated by Kerry — that US forces have suffered "90% of the coalition casualties" in Iraq, saying that in fact Iraqi security forces "have taken almost 50 percent" of the casualties.

Both men have a point here, but Edwards is closer to the mark.

Edwards is correct counting only "coalition" forces — those of the US, Britain and the other countries that took part in the invasion and occupation of Iraq. According to CNN.com, which keeps an updated list, 1,066 US service men and women had died from hostile action and other causes during the Iraq operation as of Oct. 5, of a total 1,205 for all coalition countries. That's just over 88% of the coalition deaths.

We know of no accurate count of deaths suffered by Iraqi security forces, but an estimate reported both by the Wall Street Journal and The Washington Post puts the figure at 750. Lumping those estimated Iraqi deaths with fatalities suffered by coalition forces produces a total of 1,955. Of that, the estimated Iraqi portion is 38% (not "almost 50%" as Cheney claimed) and the US total amounts to 55%.
FactCheck.org got the numbers right as far as I am aware. The problem, however, is that FactCheck.org materially misrepresented what Vice President Cheney said. Here is what he said, taken from the debate transcript:
Well, Gwen, the 90 percent figure is just dead wrong. When you include the Iraqi security forces that have suffered casualties, as well as the allies, they've taken almost 50 percent of the casualties in operations in Iraq, which leaves the U.S. with 50 percent, not 90 percent.(cmphasis added)
It is clear from the above that Cheney did not claim that Iraqis accounted for "almost 50%," but rather that Iraqis and other coalition members combined, accounted for "almost 50%" of casualties in Iraq, leaving the U.S. with the other 50 percent. FactCheck.Org's selective highlighting of the relevant passage from Cheney's remarks furthers the misrepresentation.

Again, I generally think the folks at FactCheck.Org do a stand up job. But this time they got one wrong.

Update: In response to reader e-mail, let me offer this clarification. In the post above I am not claiming that Senator Edwards' numbers were wrong. So it is fair to say that Cheney overstate his substantive point when he called Edwards' claim "dead wrong." Cheney's point — as the full exchange makes clear — was not that Edwards was using a false number, but rather that Edwards was using an inappropriate measure of the relative U.S. contribution because he was excluding relevant casualties. My point is not that Cheney's measure was more or less appropriate than that offered by Edwards. Rather, it is that FactCheck.Org's claim that Cheney's number was false is based on a clear misreading of Cheney's words. It is one thing to say that Edwards number was correct, and Cheney's number is inappropriate — as some readers have — it is another to (falsely) claim that Cheney's number is inaccurate. As FactCheck.Org's own calculations make abundantly clear, if coalition and Iraqi security force casualties are combined they account for almost 50 percent of the total casualties — and this is what Cheney said.

One other point worth noting: In the exchange, both Cheney and Edwards referred to casualties. When it came to Iraqi casualty numbers, however, FactCheck.Org used "deaths." As one reader notes, however, casualty counts typically include all those lost to active service, not just those who are killed, so FactCheck.Org may also have undercounted the total number of Iraqi casualties by only reporting deaths. If readers have additional insight on this point, I will post another update.

Update: The VC gets results. FactCheck.Org amends its post.
Most Guantanamo Detainees to Be Set Free?:
It's too early to tell if this story will become a reality, but if it does it will be remarkable:
  Most of the alleged al Qaeda and Taliban inmates at the U.S. military prison at Guantanamo Bay, Cuba, are likely to be freed or sent to their home countries for further investigation because many pose little threat and are not providing much valuable intelligence, the facility's deputy commander has said.
  The remarks by Army Brig. Gen. Martin Lucenti in yesterday's edition of London's Financial Times appeared to conflict with past comments by U.S. military commanders who have stressed the value of the information obtained from the detainees and the danger many would pose if released.
  "Of the 550 [detainees] that we have, I would say most of them, the majority of them, will either be released or transferred to their own countries," Lucenti was quoted as saying in the British newspaper. "Most of these guys weren't fighting. They were running. Even if somebody has been found to be an enemy combatant, many of them will be released because they will be of low intelligence value and low threat status.
  "We don't have a level of evidence to feel that we can be confident to prosecute them" all, he added, according to the newspaper. "We have guys here who have never told us anything, except to say that they want to cut off the heads of the infidels if they get a chance."
The CBS investigation will not report until after the election.--
Some bloggers are disappointed or angry that the outside team investigating the CBS story that used the forged Bush Guard documents will not report until after the November election.

I disagree. If I were at CBS, I would do the same thing--wait until after the election for the post mortem. It IS a distraction to the election. Do we really want to be critiquing a CBS report in the week before the election, instead of focusing on the election itself? I don't. Publication in the week before the election would be the best way to bury the story.

The suggestion that I have is that the investigative panel (Dick Thornburgh and Louis Boccardi) post their preliminary report on the internet so that bloggers and the public can comment--pointing out mistakes or important questions unexplored. At least the four or five biggest omissions or mistakes could be addressed in the final report.
Whoops!

In the words of the person who noticed this, "What a difference a [top-level domain] makes":

VICE PRESIDENT CHENEY: Well, the reason they keep mentioning Halliburton is because they're trying to throw up a smoke screen. They know the charges are false. They know if you go, for example, to factcheck.com, an independent website sponsored by the University of Pennsylvania, you can get the specific details, with respect to Halliburton.

Cheney probably meant factcheck.org; factcheck.com is, er, a little different. It's not clear quite how much factcheck.org really helps Cheney's case, but I'm pretty sure that factcheck.com doesn't.

UPDATE: Someone reports: "On a [Democratic] blog last night, the full story appeared. When the VP said .com, someone went there and noticed that the domain wasn't registered. He BOUGHT IT, right then and there, then did a redirect to the Soros site." I don't know whether it's true or not, but it's pretty funny. (I checked the WHOIS record for this, and it reveals that the name had been technically registered a long time ago, but I take it the reader is claiming that the name was owned by a registrar, and was then quickly bought from the registrar.)

FURTHER UPDATE: Reader Neil Klopfenstein suggests that the story behind the factcheck.com site is different, and points to this Wall Street Journal item, cited by Kevin Drum at the now-misnamed Washington Monthly:

FactCheck.com is owned by Name Administration Inc., a Cayman Islands company that engages in so-called "domain parking" -- it acquires discarded Web sites and monetizes the traffic with text advertising. The site had been showing education-related ads, mostly for online-degree programs, when Mr. Cheney mentioned the site during the debate. Suddenly, Name Administration saw a surge in traffic -- about 50,000 unique visitors in the first hour -- which costs the company money for Internet bandwidth, according to John Berryhill, Name Administration's attorney. . . . . So employees redirected traffic to the Soros site, not because of any request nor payment from Mr. Soros's organization or supporters, but based on their own political viewpoints, Mr. Berryhill said. "Individuals within the company are favorably disposed to George Soros's political point of view," said Mr. Berryhill. . . .
Saddam Hussein and the Extraterrestrials:

According to this source, 32% of Americans questioned in a recent poll believe that Saddam Hussein personally planned the 9/11 attacks. And according to this source, 34% of Americans questioned in a recent poll believe in UFOs. All of which leads me to wonder: are these the same people?

Tuesday, October 5, 2004

How to Create a Supreme Court Practice:

Tony Mauro looks into the case of Baker Botts in this interesting article.

First Circuit Grants Rehearing in Councilman Case:

This is great news for Internet privacy. More here and here. Thanks again to Howard for the heads up.

The Truth About Ghostwriting:

In an e-mail published over at Velvel on National Affairs, Judge Richard Posner writes:

The problem is that we no longer have a culture of writing. Writing is now a specialty. So judges, politicians, businessmen, lawyers--and now it seems law professors--increasingly hire ghostwriters (whether they're called ghostwriters, law clerks, or research assistants) as specialists in writing. I am one of the dinosaurs who still does all my own opinion writing (and of course book and article writing as well). You probably are too. But let's face it: we're on the road to extinction.

  Folks, I have a confession to make. Allow me to introduce myself: my name is Larry. I am one of Orin Kerr's ghostwriters. I am part of "Team Blog," the group that writes Kerr's blog posts. There's another group, "Team Law Review," that handles Kerr's legal scholarship. Did you like that recent post exposing the press miscoverage of the Patriot Act? That was me. Maybe you enjoyed the post on the recent Stanford Law grad who was a prostitute? That was me, too. (I'd like to take credit for the Blogosphere Challenge posts, but that series is a combined effort of Cathy, Charles, and Nick-- by the way, great job, guys!) Speaking on behalf of the entire team, we hope you enjoy our work; it certainly annoys us that we get stuck with the writing while Kerr gets the credit. Some guys have all the luck, I guess. Anyway, I should get back to my assignments; Kerr has me looking for a Patriot Act angle to the Stanford prostitute story, and he'll be very upset if I don't find one.

  (Thanks to Howard for the link.)

Hostile Environment Blowback Update:

In this March post, I discussed the case of Elyse Crystall, a left-wing feminist English professor at the University of North Carolina under investigation by the federal Department of Education for alleging subjecting one of her students to an illegal "hostile educational environment" for singling him out for criticism as a conservative "white" "male" "Christian" student in an email to her class. Now comes word that Prof. Crystall has been found to have engaged in illegal activity. In a letter to the UNC chancellor, the DOE's southern regional director of civil rights "The e-mail message not only subjected the student to intentional discrimination and harassment, but also discouraged the robust exchange of ideas that is intrinsic to higher education and is at the very heart of the Constitution's protection of free speech." The DOE chose not to undertake disciplinary action against UNC only because, the Washington Times reports, "Ms. Crystall had apologized for her actions and the university had convened faculty workshops to discourage race and sex discrimination against white, male, Christian undergraduates." Many professors create an intentionally challenging (some would say hostile) environment for students with traditionalist religious beliefs, and I predict that some conservative Christian groups will take the DOE's ruling as an invitation to use hostile environment law against such professors.

Thanks to reader Matt Rustler for the tip.

UPDATE: Now that I've read the DOE's letter, it's clear that its finding of discrimination was based solely on a finding of race and sex discrimination by Professor Crystall. The DOE Office of Civil Rights has no jurisdiction over claims of religious discrimination. I'm not sure if federal law actually bans religious discrimination against students, but many states have laws (or executive orders) banning such discrimination, either in public universities or in all nonreligious universities in the state.

Related Posts:

  1. Department of Education letter to University of North Carolina:
  2. Hostile Environment Blowback Update:
  3. "Hostile Environment" Blowback:
Fired for Blogging:

Apparently some airlines don't take kindly to flight attendants who blog.

Monday, October 4, 2004

Is the War on Terror Soft on Crime?:
CNN reports:
  The FBI's seismic shift from a broad attack on crime to an intense focus on counterterrorism has resulted in tens of thousands fewer investigations into traditional crimes since the 9/11 attacks, according to a new Justice Department study.
  The detailed analysis by the department's inspector general found that cases related to violent fugitives alone have dropped sharply, with 11,617 fewer opened in 2003 than in 2000.
  The comparison of the two years also shows that in 30 areas where the FBI reduced agents in the wake of 9/11, a total of more than 17,000 fewer cases were opened.
The report itself is available here.
Blogosphere Challenge -- The Final Links:
Last week I asked the prowar blogosphere to respond to three questions I had about Iraq. Here are the three questions:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
I asked these questions because I wanted to foster dialogue about the war among those with different takes on the war. I figured I would start with the prowar side, get the prowar folks to blog on the kinds of questions that war skeptics have, and then respond with another round of questions.

  I posted the first set of responses (about 35 altogether) in a post you can access here. The remainder of the responses are linked to below in the order I received them:
House of the Dog
Cuz We Said So
The Dead Parrot Society
AlphaPatriot
Right Reason
Heathens, Inc.
Fifth Column
Trigger Finger
sbw
Tiger Hawk
Inside Larry's Head
Technicalities
Jeff the Baptist
Adjoran in the Arena
Flit(tm)
Cabalamat.org
Four Right Wing Wackos
The TrimBlog
Qando.net
BeldarBlog
Political Junky
In the Loop
Kronology
Full Context
Sue Bob's Diary
Hootsbuddy's Place
Winds of Change
Dangerous Dan
PR9000
Hostile.org
Catallarchy
The 80/20 Club
Ogre's Politics & Views
Broken Quanta
Greg's Opinion
Dr. Strangeblog
Centerfield
RussBlog
The Graffiti on the Wall
Lockjaws Lair
The Vast Right-Wing Conspiracy
JDAMs Away
Its not a Bug, its a Feature
For crying out loud
JohnHays.net
Stromata Blog
Thoth
Clue-By-Four
Rite Wing TechnoPagan
  My plan is to read through these answers and post some follow-up questions in a few days. Stay tuned. In the meantime, thanks again to everyone who participated.
Thugs 1, Canadian university 0:

Segacs's World I Know reports on Concordia University (Montreal) refusing to let Ehud Barak -- a former Israeli prime minister -- speak on campus. Here's an excerpt from the university's press release:

During the summer the Office of the Vice-President Services received an initial request from Hillel to hold a public lecture by former Israeli Prime Minister Ehud Barak in the Henry F. Hall Building on our downtown Sir George Williams Campus. After a security assessment, this request was denied.

A series of exploratory discussions ensued about this request with various parties who take pride in Ehud Barak's accomplishments and contributions. . . . Our Director of Security, Mr. Jean Brisebois, oversaw an evaluation of both sites on the Loyola campus, in collaboration with members of the security forces that would be involved in such an event. It was their collective, professional assessment that the security of the guest speaker, the attendees and faculty and students could not be guaranteed at either location. . . .

We at Concordia are cognizant of our responsibility as an institution of higher education to foster free speech and debate on a multitude of issues. Former Prime Minister Ehud Barak's pioneering record as an international figure standing for conciliation, understanding and negotiation precedes him. . . . It is unfortunate, but a reality nonetheless, that the safety of its community members and guests must occupy a central position in planning events at an institution dedicated to free speech. . . .

I sympathize with the university's position, assuming that their reason for saying no is candid. But the bottom line is that the thugs -- those whose possible actions would jeopardize the "safety of [Concordia's] community members" -- have won: They have kept the university from engaging in an important part of its academic mission (bringing important ideas and people to help educate their students). And when thugs win once, it seems to me that this simply emboldens them to spread their thuggery more broadly. A sad day for Canadian higher education.

Thanks to InstaPundit for the pointer.

Patent for "method of concealing partial baldness,"

"A method of styling hair to cover partial baldness using only the hair on a person's head. The hair styling requires dividing a person's hair into three sections and carefully folding one section over another." The patent is right here — but don't try this, er, "practice" it, at home, lest you infringe.

No, I can't speak with confidence as to whether the patent would stand up, since I'm not a patent law expert. But I'd bet that if a case came to court, the patent would probably be invalidated.

Thanks to my friend Haym Hirsh for the pointer.

UPDATE: Reader Tom Hynes points to what I should have checked at the outset -- the patent was granted in 1977, when I believe the term of protection was 17 years from the date of the grant. The method is thus now in the public domain, so comb over to your heart's content! (Tom, Haym, and I all want to assure you, though, that we have fine heads of hair, and the patent is thus of purely academic interest to us.)

"Speech as Conduct":

I'm pleased to say that Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones will be published next year in the Cornell Law Review, a journal I've always greatly respected.

October Term 2004 and the Press:
Today is the First Monday in October, the official statutory beginning of the new Supreme Court Term. As you might expect, the reporters who cover the Supreme Court are offering lots of preview stories to tell us what we can expect in the Term ahead. (For those who don't follow such things, the Supreme Court year runs from October to October, and each year is called a Term. To put things into English, today is something like the Supreme Court's first day of school.)

  The strange part about Term preview stories is how little the stories can tell you. The stories are well written and generally quite accurate, but the truth is that we just don't know much about the new Term yet. We know the issues raised by the cases the Court has agreed to hear in the fall and early winter, but that's about it. No one knows how the Court will decide these cases, and no one knows what cases the Court will decide to hear for the latter half of the Term. (The Court agrees to hear cases throughout the year, and has only filled up about half of its docket for the Term so far.)

  On another note, it wouldn't be the beginning of a Supreme Court Term without a New York Times editorial explaining to the Justices how they should do their jobs. Today's editorial, The First Monday in October, begins by telling the Justices how they should rule in their major cases. The Times editors tell the Justices to uphold the guidelines, invalidate the death penalty for juveniles, and bar the use of segregated prisons. The editorial concludes by giving the Justices a homework assignment: given the possibility of another close election, the Times editors instruct, the Justices should "beg[i]n to think now about how they could do a job better this year if the presidential election once again ends up on their docket."

  Meanwhile, the Washington Post offers a lighter approach: their Federal Page offers a trivia quiz on Supreme Court law clerks. I missed questions #3 and #10.

Sunday, October 3, 2004

More D.C. Baseball Team Names:

Brian Doss has some clever suggestions. And a reader suggests "The Washington Disenfranschised."

Related Posts:

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  2. Naming the New D.C. Baseball Team:

My friend Stewart Baker reports this item, which isn't news, but was news to me:

The prospects for life in the Universe just got sweeter, with the first discovery of a simple sugar molecule in space. The discovery of glycolaldehyde in a giant cloud of gas and dust near the center of our own Milky Way Galaxy was made by scientists using the National Science Foundation's 12 Meter Telescope, a radio telescope on Kitt Peak, Arizona.

"The discovery of this sugar molecule in a cloud from which new stars are forming means it is increasingly likely that the chemical precursors to life are formed in such clouds long before planets develop around the stars," said Jan M. Hollis of the NASA Goddard Space Flight Center in Greenbelt, MD. . . .

Glycolaldehyde, an 8-atom molecule composed of carbon, oxygen and hydrogen, can combine with other molecules to form the more-complex sugars Ribose and Glucose. Ribose is a building block of nucleic acids such as RNA and DNA, which carry the genetic code of living organisms. Glucose is the sugar found in fruits. Glycolaldehyde contains exactly the same atoms, though in a different molecular structure, as methyl formate and acetic acid, both of which were detected previously in interstellar clouds. Glycolaldehyde is a simpler molecular cousin to table sugar, the scientists say. . . .

What next? Space Rum? Space doughnuts?