Features
Stuff from us
Academic Legal Writing: personalized copies
Sources on the Second Amendment
Saturday, January 22, 2005The Emerging Surveillance Society:
Back in October, I blogged about a Washington Post story on datamining that demonstrated some of the hysteria common to press accounts (particularly in the Washington Post and the New York Times) about privacy and surveillance issues. In an update to the post, I noted that the author of the Post story, staff reporter Robert O'Harrow, had authored a string of such articles; nearly everything he wrote for the Post had the same "privacy under attack in a high tech society" theme. In light of those posts, I thought I would point out that O'Harrow now has a book out: No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society. It argues — surprise! — that privacy is under attack in our high tech society.
Performance Artists Are Odd People:
From the L.A. Times:
My first three thoughts when I heard about this: (1) Anyone who plays around either with real guns or with fake guns that others are likely to think are real is an idiot, a jerk, or both. (2) I guess sometimes transgressive art gets too transgressive even for artists. (3) A teacher who gets shot (presumably not really) with a rifle complaining about a student who pretends to play Russian roulette, and a follow-up meeting conducted by someone who pierces and cuts his body — the modern art world is quite a place. (For those interested in the constitutional and academic freedom issues, I think the school can indeed restrict students from doing things that make others reasonably fear that someone might get killed, though I'm not sure what the UCLA policy on this subject actually is.) UPDATE: Chris Lansdown points to this item about Chris Burden's first brush with gun art: "In this instant I was a sculpture." Chris Burden means the moment his arm was pierced by a bullet from a (copperjacket) 22 long rifle. Actually, when a friend pulled the trigger on November 19, 1971 at a distance of 13 feet, the intent was only to graze the artist's arm. "Shoot" was considered one of the most spectacular performances of the seventies, provoking journalists to ask, "Will he survive 30?" Such remarks turned Burden into a living myth but they also delineated the controversy that has always attended his work. The controversy surrounding "Shoot" was fuelled by the fantasies and fears triggered by shooting and gunshot wounds.Wow, performance artists are odder than I even thought they were! But wait a sec: "Burden's work was controlled and that the audiences never felt in jeopardy"? When people are shooting at each other with real rifles, think that they're good enough "only to graze the [target's] arm" (not impossible for a good marksman at 13 feet, but not a piece of cake, either), but actually aren't good enough, and apparently inflict a substantial wound, that's "controlled"? I'd feel in a little bit of jeopardy hanging around clowns like that. (True, I wouldn't think that there'd be a huge chance that the bullet would hit me, but I don't feel in huge jeopardy from guys playing Russian roulette, either.) Bobby Fischer update:
Here is the full story. Will Saletan (Slate) on Sex Differences and Math and Science:
A well-written and interesting article. I'm no expert at all on this subject — I've read a few books that have touched on the issue, but I'm basically just a mildly informed layman on this. Still, it seems to me extremely plausible that men and women, like males and females of other species, would as a group have different innate temperaments, behavior patterns, and skill sets. As Saletan points out,
Of course, in the past many people have vastly overestimated innate sex differences. But this isn't reason to assume today that the differences simply don't exist. And it's certainly not a reason to try to prevent honest and informed discussion of this subject, or to condemn people simply for raising this question. All Related Posts (on one page) | Some Related Posts:
Friday, January 21, 2005Court Holds Legislatures Cannot Ban Obscene Pornography:
How Appealing points out a remarkable district court opinion from the Western District Of Pennsylvania ruling that legislatures cannot ban the distribution of obscene pornography on Substantive Due Process grounds. The case is United States v. Extreme Associates, and the opinion is by Judge Gary Lancaster. The rather convoluted argument of the opinion seems to be this:
1) Stanley v. Georgia, 394 U.S. 557 (1969), recognized a fundamental right to privacy in the private possession of obscene materials.Among the problems with this approach are the United States Supreme Court decisions rejecting it, specifically holding that Stanley v. Georgia does not apply to distributing or receiving obscene materials. See, e.g., United States v. Reidel, 402 U.S. 351 (1971). Judge Lancaster tries to get around these cases by saying that those are merely First Amendment decisions, whereas he is basing his holding on the doctrine of Substantive Due Process. But I don't think you can just take a First Amendment case like Stanley, sprinkle on a little Lawrence, and turn the mix into a Substantive Due Process right that cannot be substantially infringed without surviving strict scrutiny. Whatever you think about obscenity law, this opinion is pretty clearly inconsistent with existing doctrine. Expect the Third Circuit to overturn it. JibJab's Latest:
Not quite as funny as some earlier JibJab sketches, but it has its moments. (Link: ai)
Immigration and National Security:
Something recently reminded me of a few thoughts I had about this subject a while back, and I thought I'd briefly run through them again. As I noted on this blog's very first day, there are powerful reasons to care deeply about whom we're letting into the country, and to exclude people who would do us and our institutions harm. More broadly, while I generally support a fairly open immigration policy, I think there are strong arguments on the other side, and they need to be seriously confronted. Nonetheless, while unlimited immigration can hurt national security, unduly limited immigration can hurt it, too. There's an old joke about who was the greatest German general of World War II; the answer is Dwight Eisenhower. Likewise, many of the scientists on the Manhattan Project were immigrants — Einstein (who didn't work on the Project but whose letter to Roosevelt helped prompt the American nuclear program), Edward Teller, Enrico Fermi, and many more were the obvious names, but there were many others, too. Our post-war military success was also notoriously helped by foreign-born scientists (e.g., Werner von Braun). But while that was good tactics on our part, our broader relatively open policy on immigration was also good strategy. No-one knew that Eisenhower's ancestors would have a great general as a descendant. My understanding is that many European scientists were let into the U.S. before World War II without specific concern for their military utility. Likewise, when the U.S. let in Albert Wass de Czege, who had fought in the Hungarian Army on the side of the Nazis, it didn't know that his then ten-year-old son Huba would become a general in the U.S. Army, and apparently a gifted military thinker whose work has been of great value to us. So when we refuse to let some people come here, or refuse to let them stay, we might be protecting our national security. But we might also be hurting our national security, by denying us the services of someone who may one day greatly help our nation — or, worse yet, by letting some enemy country or movement take advantage of his services. And the same can happen even if we alienate the prospective immigrants in other ways, by making the immigration process too much of a hassle, by making it too hard to come to the country to study or to temporarily work, by questioning visitors or restricting them in ways that make them feel insulted, or by generally getting a reputation as a country that's unpleasant to foreigners. Again, this is hardly an open-and-shut argument for open borders; and I hope that there's some optimal mechanism that will screen out as many bad immigrants or visitors as possible, while at the same time deterring as few good ones as possible. But it's always important to remember that there are national security costs to tight immigration policies as well as national security benefits. Interview with Boston Globe Columnist Jeff Jacoby,
at Anchor Rising, a new conservative New England blog. I've long liked Jacoby's work, though I don't agree with all of it -- I'm less conservative and more libertarian than he is. Behind the Numbers:
The WSJ Online today features its second installment of "the Numbers Guy," "a new column on the way numbers and statistics are used - and abused - in the news, business and politics." Today's column: statistics about the dangers of the Internet for kids. An excerpt:
It's an alarming statistic: One in five children has been sexually solicited online.Hat tip: CrimProf. ACLU Considers Firing Board Members for Criticizing ACLU:
The New York Times has the scoop.
UPDATE: One particularly interesting paragraph notes the reaction of Anthony Romero, the ACLU's Executive Director, to the fact that information about ACLU's privacy-threatening fundraising practices was leaked to the press: Mr. Romero said he was furious about the disclosure and would consider legal recourse. "We are outraged and appalled that this information was stolen from the A.C.L.U.," he said.I thought the ACLU called this sort of thing "whistleblowing," not "stealing." Or is it stealing when the whistle is blown on the ACLU? ANOTHER UPDATE: Reader Ivan Ludmer writes with a critique of this post that I thought I would pass on: I was appalled when I read your post about the ACLU, but when I read the article you referenced it looked like you may have misinterpreted some items.Unfortunately I don't have time to check this through myself, but to be fair I wanted to post the critique and let readers decide for themselves. Thursday, January 20, 2005Pinker on the Summers Controversy:
Steven Pinker, author of The Blank Slate, provides some sensible commentary on the Summers controversy to the Harvard Crimson, including: "People who storm out of a meeting at the mention of a hypothesis, or declare it taboo or offensive without providing arguments or evidence, don't get the concept of a university or free inquiry." All Related Posts (on one page) | Some Related Posts:
My colleagues, famous!
Paul Caron (TaxProf Blog) spotlights the UCLA tax faculty. "The UCLA School of Law made one of the largest leaps in the latest US News survey of tax programs, moving from #25 in 2002 to #6 in 2004. In large part, this move was fueled by the unprecedented hiring of three tax professors in 2003, joining the four tax professors already on the faculty to form one of the strongest tax faculties in the country." These really are first-rate people, and I'm proud to have them as my colleagues. "Moscow Scraps
Stalin statue plan amid protests." Cartoon Characters and Homosexuality:
James Dobson, the founder of Focus on the Family is complaining about SpongeBob SquarePants:
This reminds me of a great T-shirt from 1999, when Jerry Falwell complained about Tinky Winky, one of the Teletubbies: "He is purple — the gay-pride color; and his antenna is shaped like a triangle — the gay-pride symbol." (I should say that this wasn't Falwell's invention; apparently Tinky Winky had become something of a gay icon over a year before Falwell made his claim, see for instance this quote from an English academic.) I saw the shirt in the window of a West Hollywood T-shirt store that catered to a gay clientele, and it said:
Programmer Error:
How Appealing reports:
Yup, that's the sort of error we programmers sometimes make. And it reminds me of something that happened on my first job, 25 years ago this Spring. I started programming early -- at age 10 doing unpaid but real stuff, and at age 12 doing paid work. My first paid job was R&B; Enterprises, a real estate company in L.A. My father was working for them at the time, also as a computer programmer, and got me the gig (after they had tried me out for free for several months, which was quite fair). I was working on an accounts payable system in FORTRAN (an odd language for an accounting system, but there it is), and I like to think I was doing a pretty good job. Of course, after I wrote or changed a program, I had to test it; and there was a special test database which could be used for that, so we wouldn't interfere with the real live data. However, it was easy to accidentally use the real database. I was testing my change to the invoice entry program, so -- being an APL geek and a Dungeons and Dragons geek -- I entered a "Quote-Quad the Cleric" as a vendor, with what I think was some test address (not my home, if I recall) and a test amount. The program worked well, and I didn't realize I'd accidentally added this to the real database, so I never deleted it. Several days later, the department manager comes over to tell me that the accounting people were wondering what this invoice was all about, and wanted to check into it before they paid it. I realized I'd entered it into the wrong database, and apologized. I was pretty embarrassed about my sloppiness. What I didn't fully focus on -- hey, I was 12 at the time -- was that I'd entered an invoice requesting payment of real money on behalf of an utterly fictitious vendor. To accountants, that looks an awful lot like a felony, not just a programmer error. In fact, that's how some embezzlement takes place. Lucky for me, it was "Quote-Quad the Cleric," not exactly the name an embezzler is likely to choose, and a nonexistent address. Still, I can see how some people would have been pretty annoyed . . . . I shudder to think about it now, but I suppose I'm glad that I was mostly oblivious back then. In any event, I just wanted to say a big "blah blah testing yahoo" to all my fellow programmers, and to the boy I was a quarter century ago. PowerBlogs for Small Blogs:
The Conspiracy just switched to being hosted at PowerBlogs, and I've continued to be very pleased with it. (We've used PowerBlogs to compose posts for months, but we stayed on the UCLA servers until recently.) Chris Lansdown, Mr. PowerBlogs -- and one reason I like PowerBlogs is that there is a Mr. PowerBlogs who promptly takes care of the few glitches that do exist -- tells me that they've just introduced two new plans aimed at the low volume market: $15 per year for 75 MB/month transfer plus 5 MB disk space, and $25 per year for 200 MB/month transfer plus 10 MB disk space. If you're starting a small blog, or want to move your existing small blog, that's a really good deal: a cheap service, but reliable and easy to use. Check it out. Sen. Reid Again Makes a False Statement While Slamming Justice Thomas:
James Taranto (OpinionJournal's Best of the Web) and Pejmanesque bust him. Here's the relevant transcript:
But Justice Scalia did not write in Hillside. That's not a controversial proposition: Reid's statement is simply false. In Mitchell v. United States, Justices Scalia and Thomas did write separate opinions, but here's Justice Thomas's opinion:
Nothing at all poorly written or illogical about this, it seems to me. Actually, if Senator Reid had simply said that he disapproves of Justice Thomas because he's too willing to overrule precedent, that would have been a defensible and factually well-founded position; Justice Thomas, more than any other Justice on the Court, has expressed his willingness to overrule quite a few decisions that he thinks are wrongly decided. James Taranto criticizes that position; perhaps a willingness to overrule unsound precedent is often good. But at least the position would be based on accurate assertions, rather than false ones. Unfortunately, Senator Reid didn't seem to think it was enough to say that he disagrees with Justice Thomas on the merits of certain cases, or that he disagrees with Justice Thomas on how often precedents should be overruled. No, instead he claims that Justice Thomas has been an "embarrassment to the Supreme Court," "his opinions are poorly written," his opinion (in Hillside) is at an "8th grade" level, and now that Thomas's opinions aren't "very logical" (unlike Scalia's). Instead of pointing to and justifying an honest disagreement about law or jurisprudence, Senator Reid makes unfounded assertions of incompetence -- and backs them up with false statements (about Hillside) and mischaracterizations (that the "whole point" of his preferring Scalia to Thomas is that Scalia's opinions are "very logical" and Thomas's aren't). There should be cause for embarrassment here, but not on the Supreme Court's or Justice Thomas's part. Related Posts (on one page):
ARE REPUBLICAN JUDICIAL NOMINEES "SERIAL KILLERS"?
Did anyone else notice this quote on law.com (the headline is in the little box to the right of this post, "Handicapping Bush's Judicial Nominations"):
Whah????? WHAT IF SUMMERS HAD SAID:
"The distribution of natural endowments for math abilities for men show the same mean but greater variance than math abilities for women. Therefore, men will be disproportionately represented at the tails of the distribution relative to women. In other words, there are likely to be more men in society than women with unusually poor and below-average math skills." Some evolutionary theorists have predicted exactly this sort of effect--that because of the nature of mating strategies (e.g., high status men mate much more than average or low-status men, whereas average-status men only mate marginally more than low-status), men may gain adaptive benefit from having greater variance in their genetic abilities, whereas woman benefit from less variance because of the much smaller marginal benefit from extraordinarily high abilities. In evolutionary terms, pretty much any woman would have an opportunity to mate with some man, but not every man will necessarily have the opportunity to mate with a woman, and high-status men mate with many women (prior to the social evolution of monogamy). I haven't followed the empirical evidence on this closely, and from what I know, the jury is still out on whether this is scientifically accurate. But if it is true, and it is certainly plausible, one prediction of the theory would be that men would be overrepresented both at the very top of competitive professions ("stars" in academia, medicine, chefs, violinists, etc.) as well as being overrepresented in the dregs of society in terms of being intellectually below-average and prone to dropping out of school, prison, substance abuse, violence, and other correlates to that state. By contrast, under the hypothesis, woman will tend to be more consistently average or above-average than men in these same occupations. And it is obviously meaningless and silly to suggest that it is somehow "better" to be overrepresented at the extreme tails and underreprested around the averages than the opposite. I don't know whether it is true that men are overrepresented in the dregs of society, but casual empricism suggests to me that it is a plausible description of the world. The hypothetical statement, it turns out, is therefore functionally identical to the bastardized interpretation of Summers's statement. But somehow I suspect it would be less outrageous if he had said it in such a manner to denigrate the propensity of men to be losers in the genetic lottery. Update: A reader points me to the federal Bureau of Prisons, which, for what it is worth, reports that 93.2% of inmates in the federal prison system are male. All Related Posts (on one page) | Some Related Posts:
Excellent Article on Abu Mazen:
In Ha'aretz, reprinted from the New York Review of Books. Summers Apology etc.:
I really don't see why Larry Summers needed to make an abject apology for merely suggesting the possibility that, along with other possible factors, including discrimination, innate differences between men and women may play a role in the disparity between men and women going into the sciences. To my knowledge, the subject of the influence of male-female differences on career choices and competencies is widely debated within academia among those who specialize in related fields. And we've certainly come along way from the day when the "experts" thought it was okay to raise a boy born with mangled genetalia as a girl because he would simply be socialized as a girl and never known the difference, given that all male-female differences are "socially constructed" (though I continue to hear the latter line from individuals "educated" at our elite universities [edit: though never from anyone who majored in science]). I can see the argument that perhaps statistical generalizations will give aid and comfort to those who are inclined to begin with to discriminate against the group in question (even though logically they are given no quarter by the generalization: even if, for example, Jews are less likely than Gentiles to be tall enough to play professional basketball, you don't turn down Dolph Shayes when he shows up at training camp). But I think the outrage expressed goes beyond that. I find that people have difficulty understanding that broad statistical generalizations don't justify leaping to conclusions about individuals. I once heard of a professor who gave a faculty workshop at a major law school in which the speaker pointed out that adoptive and step-parents are far more likely to abuse their children than are natural parents. The speaker noted, of course, that the vast majority of adoptive and step-parents don't abuse their children, it's just that they are far more likely to compared with natural parents. Nevertheless, informed sources tell me that adoptive and stepparents in the audience were gravely and personally offended, and accused the speaker of promoting Nazi-like theories of biological merit. I simply can't understand this logic. How do you get from "the vast majority of adoptive parents don't abuse their children, but are more likely than biological parents to abuse their children" to "you, as an adoptive parent, are under suspicion" for abusing your child? And unlike the continuing nature/nurture debate with regard to women's career choices, my understanding is that the higher rate of abuse among non-natural parents is a documented fact, but that didn't stop the outrage. On the other hand, because so many people, even very smart law professor-types, do seem to have problems with how statistical generalizations relate to individual cases, maybe Summers did indeed put his foot into his mouth. By even suggesting the possibility that men and women, as broad statistical groups, have different natural interests and talents, Summers was inevitably interpreted by many as saying "maybe it's okay to discriminate against talented women in math and science." Part of being a university president is not just being clever and saying interesting things, but understanding how your public audience, logically or not, will react to what you say. And finally, an interesting First Amendment question: if a female scientist who is denied tenure at Harvard decides to sue, can use Summers' speech as evidence of Harvard's discriminatory intent? All Related Posts (on one page) | Some Related Posts: Summers Storm Subsiding:
Harvard President Larry Summers has apologized for his controversial statements about the relative lack of women in math and science. I critiqued the outrage here. Preposterous Universe disagrees and has a good round-up of other commentary here. One interesting aspect of the controversy is that the lack of a written transcript of Summers remarks have left them open to a variety of interpretations. That'll teach him not to speak off the cuff! Of the comments I've read and received, I also found the following to be particularly interesting:I took a heavy math load at Smith and it was all taught in a "female" way - the school took the position that women learn and process differently and thus should be taught differently. Their position was that women have an approach and talent distinct from men and the "male" approach to teaching has shut women out of these fields. I don't know if I buy it, but I do know that I learned much more in Smith classes than I ever had before. All Related Posts (on one page) | Some Related Posts: University of California Trying to Restrict Speech:
I regret to say that my very own University of California is -- in my view mistakenly -- trying to legally pressure the site thedarksideofucsb.com to change its Web address. According to this Pacific Business Times article (the substance of which I've generally verified myself),
I talked to someone at the UC about this, and they say they aren't going after the guy because he's critical of UCSB. (I express no opinion on the merits of the criticisms, by the way.) Rather, they say they generally go after people who use UC in their site names, whatever the site's views -- my sense is that UC is chiefly trying to protect its profits from merchandising of UC-related paraphernelia. And the statute might indeed be read to cover the Dark Side of UCSB site:
Nonetheless, as applied to this site, the statute pretty clearly violates the First Amendment. The site is engaged in fully protected speech, not commercial advertising or nonspeech conduct. It doesn't falsely suggest that it's affiliated with UCSB or endorsed by UCSB. It doesn't compete with UCSB for sales of UCSB-licensed products. The site name is constitutionally protected, just as a book called "The Dark Side of UCSB" (even if it's "propaganda" for a "political" or "sociological" "activity") would be protected. See generally Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003), which held that a "sucks" domain didn't violate federal trademark law, but which also stressed that such site names are protected by the First Amendment:
See also Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1166-67 (C.D. Cal. 1998); Bosley Medical Institute v. Kremer, 2004 WL 964163 (S.D. Cal. 2004). Related Posts (on one page):
ANOTHER AGENDA ITEM FOR PRESIDENT SUMMERS:
One of the questions for Lawrence Summers now apparently is why only 4 of 32 tenure-track offers in recent years have gone to women. A seemingly obvious question--I wonder how many offers were made to conservatives/libertarians/Republicans during that same period? If Dan Klein's data on other elite universities is accurate for Harvard (and there is no obvious reason why not), the most likely number is zero (or at least less than 4), notwithstanding the fact that according to last year's election, some 51% of voters appear to be right of center (roughly the same percentage as there are women in America). More fundamentally, if a faculty of say 100 members only had 2 or 3 women on the faculty, surely there would be little hesitation by many in ascribing this to disparity to pernicious discrimination against women, and that "more needs to be done" (as President Summers is hearing in the current howls of outrage). And, fact, presuming discrimination from such a gross disparity will frequently turn out to be correct, especially in setting such as nonprofit universities which are insulated from market pressures (one reason why unions historically discriminate so much). Certainly the numbers give rise to a presumption that is correct often enough to put the burden on the other side to show that it is being responsible and applying the same standards and efforts to the recruitment of women as men. But if this is so, why is it that if a faculty has only 2 or 3 conservatives/libertarians, a similar presumption does not apply? Surely such a gross disparity at least gives rise to the same prima facie case of ideological discrimination, doesn't it? Note that the difference cannot be that sexual discrimination is obvious but ideological discrimination is not, in that the nature of academia is that the centerpiece of the academic exercise is the ostentatious display of ones' ideas, so everyone knows your ideological views. So, President Summers, while you are looking at faculty diversity issues ... Update: It has been pointed out to me that if President Summers is reading, I hope he doesn't take my observation to be evidence of the innate inferiority of conservative and libertarian scholars. All Related Posts (on one page) | Some Related Posts:
Chronicle of Higher Education Live Chat on Torture:
I got an interesting press release from the Chronicle about this, and thought some readers might be interested:
The options given in the second paragraph seem incomplete -- they leave out the otpion that the book should have been published, but that it is permissible to use at least some forms of physical coercion, perhaps including outright torture, to defend ourselves and our principles. But I hope that the discussion will bring all the possible options out. New LawProf Group Blog on International Law:
Please welcome to the blogosphere a new law professor group blog, Opinio Juris. The blog covers international law and politics, and is hosted by Julian Ku of Hofstra, Chris Borgen of St. Johns, and Peggy McGuinness of Missouri. A new post this morning is a good place to start: it's a critique of Dean Harold Koh's testimony on the nomination of Alberto Gonzalez for Attorney General, entitled Where Koh's Testimony Went Wrong.
Rehnquist Administers the Oath:
Great to see the Chief administer the oath of office to President Bush at the Inauguration. Rehnquist was walking with a cane, and his voice was clearly weaker and altered somewhat by the medical procedures he has endured, but it was terrific to see him strong enough to do it and do it well. In case you're wondering, the woman who was walking behind the Chief when he made his entrance was Sally Rider, the Chief's Administrative Assistant.
Wednesday, January 19, 2005We Provide the Context, Because Slate Doesn't:
We also provide the links, because Slate — leading online journal that it is — doesn't. Here's Slate's Bushism of the Day for today:
I take it the supposed humor comes from the ambiguity of "sacrifice": Bush was obviously expressing his appreciation of soldiers, because of their sacrifice. (A bit clunky — "thank" would have been better — but "appreciate" is hardly risible here.) But it might also sound to some people like he's appreciating their wearing a uniform to their sacrifice, which brings up visions of "sacrifice" in the sense of "human sacrifice" and death. Maybe I'm wrong, but it seems to me like the only quibble that Slate can have with Bush's line, unless they're trying to make something out of the substitution of "I want to appreciate" for "I want to thank." OK, here's the context:
Even setting aside the applause, does this sentence really look that silly in context? Or silly at all? If you think it does look silly, then you wouldn't fault Slate for omitting the context. But if I'm right that most people would find the quote to be much more sensible in context than out of context, then is the Slate excerpt really fair? Yes, it's humor, but it's a humorous dig that's meant to make a serious statement. The question is whether it makes the statement fairly or not. UPDATE: Several people suggested that Slate is trying to make fun of the "I want to appreciate" -- Bush, the theory goes, is saying that he doesn't really appreciate the soldiers, but just wants to appreciate them. That strikes me as a pretty weak quibble. "Want to" is a pretty commonplace empty filler; "I want to thank" equals "I thank," "I want to suggest" equals "I suggest," "I want to say that . . ." equals "I say that . . ." which really equals nothing at all. (Naturally, sometimes "I want to" does mean "I want to"; it's generally clear from context whether or not it does.) Like empty filler generally, it isn't elegant, but it hardly seems laughable. No-one says "Ha ha ha, he said 'I want to thank,' which means he isn't really thanking, but just wants to do it and for some reason can't." Likewise, I think, for "I want to appreciate" -- a much less common phrase, but clearly an adaptation of the more common "I want to thank." All Related Posts (on one page) | Some Related Posts:
Justice Robert Jackson on Inauguration Eve:
Prof. John Q. Barrett passed along a speech by Robert Jackson — then Attorney General, soon to be a Supreme Court Justice. According to Prof. Barrett, "Jackson wrote (as he always did) his own speech for the occasion [Inauguration Eve 1941], but when the big night came he could not attend due to illness. His friend and colleague, Solicitor General Francis Biddle, instead delivered Jackson's speech at Washington's Mayflower Hotel to a crowd of more than 1,500 guests, including the 531 electors, Cabinet members, Members of Congress and State Governors." Here's an excerpt; there are parts I may disagree with, but it struck me as thoughtful and eloquent enough to be worth passing along:
Chertoff Trivia:
After complaining about blogger burnout, Article III Groupie is back with an entertaining Quiz about Judge Michael Chertoff.
New York Times Coverage of Columbia Controversy:
The New York Times weighs in on the Columbia Middle Eastern Studies controversy, and a VC reader sends the following criticisms, among others: (1) The article repeatedly quotes a crude email from a medical professor as a representation of the pro-Israel view on campus. (2) Everyone criticizing the professors are described as "pro-Israel," while the Arab professors don't get a similar branding. Dan Miron is referred to as a "pro-Israel professor in the Mealac department," but no professors are singled out as "pro-Palestinian" or "pro-Arab." (3) Times: 'Professor Massad, a Jordanian-born Palestinian... said nonenrolled hecklers attend his lectures to provoke him. He said he has chosen not to teach his most controversial course, "Palestinian and Israeli Politics and Societies," in the coming semester, because of the emotional toll and because he worries it might jeopardize his tenure.' VC reader: If Daniel Pipes had a speech and Arab students showed up to heckle him, it would be hailed as an exercise in freedom of speech. Which of course it is, it's just also very rude [Bernstein: I disagree with this; heckling is not simply rude it's disruptive, and therefore, unless explicitly invited, is not a proper exercise of freedom of speech]. And what is a Jordanian-born Palestinian? Wouldn't that make him Jordanian? It's tough to decipher the rules of this made-up nationality. Bernstein adds: I suspect that Massad decided not to teach this class because as someone who does not speak or read Hebrew, and with the eyes of the world on him, his ignorance of Israeli society would be embarassingly apparent. As I've asked previously, how much can Massad know about Israeli society if he can't speak to Israelis in their native tongue, nor read Israeli books or periodicals in the original? (4) Times: 'Some pro-Mealac professors say the anti-Mealac students are, in effect, hicks, products of sheltered environments where pro-Palestinian views are absent. One faculty member suggested that there is "no underestimating how ignorant college students are." 'Ms. Shanker, who grew up in the small town of Goshen, N.Y., where, she said, Israel is rarely discussed, said to this point: "I think that argument is ludicrous. We're not idiots."' VC Reader: Look at the Times not-so-subtly endorsing the description of Shanker as a sheltered hick. Bernstein: The more I think about this controversy, the more I regret that the aggrieved students have framed the issue in terms of their being "intimidated" or (especially) "offended." I see relatively little merit in these complaints (though claims of intimidation should certainly be investigated, and much more merit in the complaint that Mealac has poor academic standards, and is overly politicized (what do you expect from a department that seems to take its inspiration from the late Edward Said?). The problem, of course, is that the latter criticisms would apply to so many humanities departments at so many major universities that it would be hard to know where to begin.Good That Lawrence Summers Isn't at Iowa State:
Iowa State University bans as "sexual harassment" a wide range of speech, including "derogatory or demeaning comments about women or men in general, whether sexual or not." Saying -- even quite accurately -- that women are genetically less likely to be good at certain things may well be seen as "derogatory or demeaning." (After all, it apparently made some biology professors feel like they were "going to be sick," made their "heart . . . pound[]," presumably not in a good way, made their "breath . . . shallow," and made them "extremely upset.") Of course, saying that men are more likely (whether for genetic or other reasons) to be violent criminals, rapists, child molesters, sexists, or for that matter fools driven by their genital organs would also be "derogatory or demeaning," and thus sexual harassment. Fortunately for professors who hold these views, "Interpretation of this policy will give due consideration to the principles of academic freedom and freedom of speech." If you weren't a university President, but just a young academic hoping for tenure, would you get much comfort out of this promise of "due consideration," whatever exactly that means? All Related Posts (on one page) | Some Related Posts: Next Step -- Berlin Erecting Statue of Hitler?
Reuters reports:
I agree, of course, that Stalin's name shouldn't be erased from histories of World War II (the way that Stalin had erased his enemies from history books). He is to be credited for standing firm against the Nazis, and of course faulted for -- among his many other crimes -- butchering many top military officers in the years before World War II, which surely left Russia more vulnerable to attack. He also let himself be duped by Hitler's assurances of nonintervention. But it sounds to me like there's more celebration of Stalin here than simple observation that he was the czar when World War II was fought. And that's a bad sign, both for Russia and for the rest of the world. Related Posts (on one page):
"Supreme Court To Break Up If Rehnquist Leaves":
The Onion has the inside scoop. An excerpt:
Although the associate justices have yet to announce their plans following the dissolution of the Supreme Court, Tomaine said he believes that many will continue on with solo judiciary projects.Hat tip: Howard. Summers Storm:
Harvard President Lawrence Summers has sparked another controversy in a speech at the National Bureau of Economic Research. As the Washington Post reports: Summers laid out a series of possible explanations for the underrepresentation of women in the upper echelons of professional life, including upbringing, genetics and time spent on child-rearing.Summers suggestion that genetics, specifically some sort of innate differences between men and women, may play a role sent some audience members over the edge. Again from the Post: "I felt I was going to be sick," said Nancy Hopkins, a biology professor at the Massachusetts Institute of Technology, who listened to part of Summers's speech Friday at a session on the progress of women in academia organized by the National Bureau of Economic Research in Cambridge, Mass. She walked out in what she described as a physical sense of disgust. "My heart was pounding and my breath was shallow," she said. "I was extremely upset."Wait, it gets worse. Summers is apparently a sexist parent too: Some women who attended the meeting said they felt that Summers was implicitly endorsing the notion that there are genetic differences that inhibit girls from excelling in math and science. They cited a story Summers told about giving his daughter two trucks as an effort at gender-neutral parenting. The girl soon began referring to one of the trucks as "daddy truck" and the other as "baby truck." The point of the truck anecdote, said Hopkins, a Harvard graduate, seemed to be that girls have a genetic predisposition against math and engineering. "That's the kind of insidious, destructive, un-thought-through attitude that causes a lot of harm," she said. "It's one thing for an ordinary person to shoot his mouth off like that, but quite another for a top educational leader."Now I'm no expert on gender differences, but unless there has been some blockbuster research breakthrough that I missed, there is substantial uncertainty as to why certain aspects of dominant gender roles are so stable over time, including male predominance in math science. Old-fashioned sexism almost certainly plays a role, but it may not explain everything. Indeed, I think most fair observers would suspect there is more to the story. This is not a defense of such gender stereotypes -- nor does it say anything about the specific capabilities of any individual man or woman. If it is the case that men are more predisposed to excel at math than women, this does not mean that all men are better at math that all women, that women cannot be successful mathematicians, that women should not pursue math-oriented careers, or that sexism and gender-bias are irrelevant. It would simply mean that statistical gender disparities in given fields are in part the result of genetic predispositions. Genetics provides but one possible explanation for the observed disparity in male and female participation and success in certain fields. But it may not be the whole story either. It is quite possible that certain genetic predispositions are magnified or reinforced by cultural stereotypes and bias. In the end, the reason why more men than women excel in math and science is an empirical question, and one worthy of careful examination. If genetic differences play a role -- and this is an "if" -- this is something worth knowing. The political and cultural sensitivity of the question should not place it off-limits to scientific examination. At least some in attendance recognized this. One last time from the Post: "I left with a sense of elation at his ideas," said Claudia Goldin, a Harvard economics professor who attended the speech. "I was proud that the president of my university retains the inquisitiveness of an academic." . . . What Summers said "is controversial and should be debated," said David Goldston, chief of staff of the House Science Committee, who was also at the meeting. "But there ought to be some place in America where you can have a thoughtful, non-ideological private discussion."See also Kevin Drum's thoughts here. All Related Posts (on one page) | Some Related Posts: Ignatz Returns:
Sam Heldman has returned to the blogosphere. If the past is any guide, I am sure we'll have plenty to disagree about (again). For instance, this post is unfair to Justice Thomas and, based on this report, misconstrues his remarks. But this does not mean Justice Thomas is off the hook (see here.) Welcome back. NYU Journal of Law & Liberty:
The first issue of the NYU Journal of Law & Liberty is now online, featuring articles from a symposium on Friedrich Hayek. Contributors include Richard Posner, Richard Epstein, and many other prominent academics (no one else named Richard, though). You can access all of the articles here.
The Fake Carnivore Debate, RIP:
The Associated Press reports that the FBI has retired its "Carnivore" Internet surveillance tool. (It actually happened about two years ago, but no one knew about it until now.) The Carnivore debate was premised on a profound misunderstanding of Internet surveillance practices. With the Carnivore era over, it's a good time to look back at how the press was able to get the story so wrong.
The FBI created the Carnivore tool around 1999 to create a more privacy-protecting way to conduct Internet surveillance. At that time, commercial surveillance tools were not very protective of privacy; private sector companies have broader surveillance rights than the government, which meant that there was no incentive for private companies to use privacy-sensitive tools when they needed to moinitor their network. The FBI was finding that in rare cases, ISPs could not execute court orders on their own and insisted that the FBI itself had to conduct court-ordered surveillance itself; when it did, FBI agents found that no commercially-available real-time surveillance tools (known as "sniffers") were sufficiently privacy-protective for the FBI to be comfortable using it given the legal constraints it faced. The FBI's response was to order its tech people to try to improve the filtering technology of commercial tools. The FBI came up with better filter technologies that could ensure that no over-collection would occur. The preexisting commercial filter had been dubbed "Omnivore" within the FBI, and the new filter was much more precise — it only took the "meat" that the tool was designed to capture, and did not collect any evidence beyond that described in the court order. As a result, the FBI dubbed the new privacy-enhanced tool "Carnivore." Of course, this isn't the story that you heard in the press. Privacy advocates were quick to capitalize on the precious gift the FBI handed them: the name itself was an indictment of sorts, making it easy to create the impression that the FBI had created a monster. Of course, reporters had no idea that Carnivore was actually a privacy-protective version of a common computer tool, and privacy advocates certainly had no incentive to tell them that. As a result, the MSM made a big ruckus about Carnivore and scared everybody into thinking that the FBI had created a powerful surveillance tool. I was in government at the time the story broke, and was rather astonished by the misunderstanding. In a preview of the debate over the Patriot Act, the MSM got it exactly wrong: it couldn't tell the difference between an effort to protect privacy and an effort to invade it. This led, among other things, to a movement among some civil libertarians urging Congress to impose a moratorium on Carnivore -- a movement that, if successful, would have forced the FBI to use more privacy-invasive tools rather than more privacy-protective ones. (In case you're wondering, government spokespersons tried to explain this at the time and since, but reporters simply did not believe it. When they bothered to report the government's view at all, it was usually at the end of the article in a single sentence clearly designed to leave the impression it was not credible.) Why did the FBI retire Carnivore? For a reason I explained in an article published two years ago on the Patriot Act (see footnote 247 if you're really interested): in the last few years, the private sector finally caught up with the government. Commercial surveillance tools now have the same privacy-enhancing filter technology that the Carnivore tool has, meaning that the government no longer needs to use Carnivore. Strange, but true. Tuesday, January 18, 2005Faculty Workshop Seminars:
The Harvard Law School website has a page about a law school seminar in which students get to comment on the works-in-progress of top law professors:
This fall, Professors Richard Fallon and Heather Gerken offered more than 30 students a rare chance to review and challenge works-in-progress by some of the country's leading scholars in law. The setting was the Public Law Workshop, a series of seminars attended not just by the enrolled students and visiting scholars but routinely by other HLS faculty members.This idea has been tried at a number of schools. For example, here's a site for a similar seminar on IP at Boalt. It's a great concept, I think: students get to see what professors really do and participate actively in developing scholarship, while professors get a set of fresh eyes to comment on their works. More schools should do this. Pacific Legal Foundation Writing Competition:
The Pacific Legal Foundation -- a very good conservative and libertarian public interest law firm in California -- is running its Sixth Annual Program for Judicial Awareness Writing Competition, with $9500 in awards. This year's competition includes three essay questions, two on property rights and one on the Comerce Clause. For more information, see here. Magical Legalism:
Someone suggested the name "magical legalism" for stories about law or lawyers that are basically set in the real world but with some magical or fantastic twist. (If you're that "someone," e-mail me, and I'll update the post to give you credit.) Can anyone point me to examples of this genre, in which I suppose my The Love Charm would fit? One classic example, I suppose, is The Devil and Daniel Webster. Any others? I'm enabling comments, so please post the answers there rather than e-mailing me. Thanks! Just Tracked Down the Author of One of My Favorite Aphorisms:
Whenever someone says "it's a small world" or some such, I respond with something I heard from a former boss:
Maybe it's just me, but I think that's a really cool phrase. I've just now tracked down the person who is its apparent originator -- Deborah Chinn -- and I'd thought I'd pass along both the phrase and the credit. Anti-War Group Excluded from Public Park:
Reader Tim Gier points me to this story, which he found via DailyKos:
The ACLU and the Green Party were apparently not asked to leave. Government-owned parks are considered "traditional public fora," in which the government may not restrict speech based on its content (unless the content falls within the narrow First Amendment exceptions, such as deliberate falsehood, obscenity, threats, and the like). The government gets no extra power over such speech because of the government's ownership of the property. It thus seems pretty clear that the park manager's actions were unconstitutional. It's possible that a city may temporarily rent out its property, including perhaps a park, to a private entity, which could then impose its own rules on this temporarily privatized space; but it seems pretty clear that this isn't what happened here. My sense is that the government officials who organize events at parks sometimes want to get rid of material that they see as too controversial, since they fear that such material will make the event-going experience less pleasant for some people, and thus drive away potential attendees. (I don't know whether this was this particular park manager's real reason.) I remember, for instance, a case from when I was clerking, Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc., in which a city-run festival excluded "controversial groups," including a pro-life group and two pro-choice groups. The Kentucky Supreme Court actually upheld this restriction, concluding that the policy was permissible because it was viewpoint-neutral (though the court erroneously called it "content-neutral"). Unfortunately, the Supreme Court declined to hear the case — the Court agrees to hear only 1% to 2% of the cases it's asked to hear, and a refusal to hear the case doesn't mean endorsement of the lower court decision. But Justice O'Connor wrote a dissenting opinion that correctly criticized the lower court's decision. If this matter goes up to the Court again in the future, I'm quite sure that the Court will hold as she urged; and I think that most lower courts (though as we saw in the CARTL case, not the Kentucky Supreme Court) would likewise strike down such policies. So in any event this sort of exclusion isn't unheard-of — but it's pretty clearly unconstitutional. "What's Up at the Universities?":
Don Herzog has a very good post about academic freedom and viewpoint diversity in the classroom over at Left2Right. A taste:
Are students entitled to classrooms or campuses where they won't be offended? No way. That's a recipe for turning vibrant free speech into mindless pablum, given how many people have exquisite sensibilities on tons of issues. Not that you need exquisite sensibilities to take exception to some things that get said. There have been some grievous episodes of hate speech on campuses. But every speech code I've ever seen, including the one from Michigan struck down in '89, is impossibly hamhanded. Probably the best bet is to give up on such formal codes and sanctions, not on the Looney-Tunes view that free speech means anyone can say anything however and whenever he likes, but because we can't trust the authorities to make sensible decisions. There are horror stories too about what jittery and spineless university administrators will do to protect students' sensibilities: it was ludicrous to shut this down.UPDATE: While you're at it, check out the interesting defense of tenure in the comment section. Strange Place to Find A Nail:
How about in your head? Michael Froomkin comments: "Imagine the revised disclaimer the lawyers will be making the nail gun people put into their users manuals . . . ."
Monday, January 17, 2005Court Cases Involving Dr. Martin Luther King, Jr.:
CrimProf has a list.
CONSTITUTIONAL LAW AND ECONOMIC LITERACY:
Because of my recent research on Obesity and Advertising Policy, I have inadvertently stumbled into the periphery of the constitutional regulation of commercial speech. After grazing a little bit in that literature, I was struck by the remarkable shallowness in that literature about the economic analysis of advertising. So out of curiosity, I ran a couple of word tests just to see the degree with which economic analysis is found in commercial speech law review commentary. This is of course far from rigorous, but it may be reflective of the state of the literature. I searched Westlaw's tp-all database. First, I used the search string "commercial speech" & advertising, and got back 4100 hits. Very crude, but perhaps reflective of the high interest in this topic. Next, I searched for ""commercial speech" & advertising & stigler", looking to pick up references to Stigler's old chestnut, The Economics of Advertising. The search results fell to 87 hits, suggesting that there are over 4000 law review articles that touch on commercial speech and advertising and do not refer to the seminal article in the economics of advertising. Finally, I ran a search to try to pick up the influence of Ben Klein and Keith Leffler's famous article, "The Role of Market Forces in Assuring Contractual Performance", from the Journal of Political Economy, which lays out the "quality assuring" or indirect information theory of advertising. A search for ""commercial speech" & advertising & (klein /s leffler)" generates only 19 hits (almost every one of these articles also cites Stigler), and of those, roughly half were by economists, primarily FTC-influenced law & economics scholars such as Fred McChesney (4 references), Tim Muris, Richard Craswell, Howard Beales, Jack Calfee, and Terry Calvani, most of which are policy-oriented, not disquisitions on constitutional law. The only non-FTC influenced scholar who cites Klein & Leffler in the same article with "commercial speech" twice or more is John McGinnis. A search for ""commercial speech" & advertising & ("Type 1" "type 2" /s error)" makes zero hits, substituting variations on "false negative" and "false positive" raises the result to 46. Obviously, this is terribly crude. But it is consistent with my casual observation--constitutional law analysis of First Amendment commercial speech doctrine and advertising seems to be largely uninformed by the economic research of advertising during the past two decades. I leave it to someone else who actually reads and writes in first amendment jurisprudence to tell me whether my crude observations are accurate. Perhaps the ideas are kicking around in the commentary, just with different citations or simply different terminology than that used by economists. So if someone has a better search string that I should use to try to pick up the use of economic analysis in First Amendment Commercial Speech jurisprudence, by all means pass it along to me. But, if it is the case that most discussions of commercial speech lack deep understanding of the economics of advertising, it raises at least two questions in my mind. First, what is the model of advertising that structures the analytical inquiry in this literature? Second, it may raise an interesting cultural issue about academia--are the cultures of law & economics and First Amendment jurisprudence so different that there is little exchange across them? If so, why? My intuition is that with few exceptions law & econ scholars generally don't do First Amendment, and First Amendment scholars don't do law & econ. The thinking and cultures in these two fields just seem to be so different, and the people drawn into the two fields appear to be so different in intellectual interests, that maybe the cultural gaps are just too deep to make possible many people writing across the gap. Considering that most constitutional law scholars don't even seem to do public choice, which would seem to be an obvious and relevant field to work with, perhaps law & econ is even further out on the periphery of the interest and expertise of such scholars. Similarly, most law & econ people don't do constitutional law, and to the extent they do, they seem to focus more on structural analysis rather than First Amendment or individual rights/liberties analysis. As I said, I don't do First Amendment myself (there is basically no mention of it in my obesity article), so I certainly am not throwing stones here, I'm just making an observation. Given the thicket of constitutional law and the cost associated with trying to learn all of this constitutional law, I also certainly have no plans to enter this mess myself. Tuition Increases at State Law Schools:
Brian Leiter has the scoop, along with an interesting prediction that state schools will continue to raise their tuitions to stay competitive with private law schools.
The Pie-Eating Contest:
I often hear lawyers recite an observation about making partner at a large law firm that goes something like this:
Making partner is like winning a pie-eating contest in which the prize for winning is more pie.The point is that associates have to work long and difficult hours to make partner-- and if they make it, they are rewarded with a job in which they are expected to continue to work long and difficult hours. My question is, does anyone know who first came up with this line? I found one article crediting "a partner" for it, but I wondered if anyone knew any more details. If you think you know, please leave a comment. Sunday, January 16, 2005Virginia Is For Lovers, And This Time We Mean It:
Thanks to Lawrence v. Texas, it is no longer a crime for unmarried persons to have sexual intercourse in Virginia. (Hat tip: Howard)
NY Times article on Supreme Court term limits.--
Linda Greenhouse has an article in the Sunday NY Times, Week in Review (p. 5), describing the growing movement for term limits on the US Supreme Court. My colleague, Steve Calabresi, has been discussing this for years, though he wasn't the first to suggest it. And a few years ago, I discussed our proposal for 18-year term limits on the ConLawProf discussion list. Then in 2002, Calabresi and Akhil Amar did an op-ed for the Washington Post on the topic. Here are Greenhouse's opening paragraphs in the NY Times:
The article goes on from our proposal to discuss some of the details of a proposal by Paul Carrington and Roger Cramton, which is similar to ours, but with a different phase-in. Recently, they circulated a proposal for 16-year term limits, but they have now corrected it to call for 18-year limits, which makes theirs consistent with most other proposals. Under our proposal (like some others), after a phase-in period a President would appoint a new Justice every odd year. At the end of 18 years, the Justice would go on senior status, and could be assigned to hear cases on other federal courts. In my data analysis, I found that the problem arose fairly suddenly after 1970. It was not a gradual increase in tenure on the Court over the prior 180 years as human life expectancies rose, though this increase in survival helped make longer tenure possible. Rather, the era since 1970 has been unlike any other, including the immediately preceding 1941-70 period. UPDATE: Interesting comments at Daily Constitutional. Related Posts (on one page):
|