Saturday, May 31, 2003

Two recent blog postings ridicule and attempt to refute David Frum's suggestion that one solution to the problem of overfishing would be to create a system of property rights in wild fish. Both, I think, miss the mark, although by differing margins.

A blogger named Jim Capozzola took note of Frum's suggestion, and proclaimed it to be "not an example of chutzpah," but "the very definition thereof." Capozzola did not supply any reasoning or argumentation to support this conclusion, and given that he doesn't even mention the large literature on "Individual Transferable Quotas" (or ITQs), I would surmise that he has no idea what he is talking about. (Not that this is a special condemnation of him; a lot of bloggers don't know what they are talking about a substantial portion of the time.)

A more educated, but still inaccurate, posting comes from political scientist Henry Farrell. Here's a quote:
As Jim sez, this is chuzpah at its finest; it's also based on assumptions that are quite problematic. Frum's basic idea -- that the only solution to overfishing is to create private property rights -- rests on Garret Hardin's the Tragedy of the Commons. * * * Traditionally, two possible solutions have been proposed to the Tragedy of the Commons. The first is centralized government rules of the sort that Frum abhors instinctively. The second is to privatize the resource. If it becomes the property of one actor, then that actor has an incentive to maintain it in the long run rather than seeking to maximise her short term gain.

So much for the conventional wisdom. The Tragedy of the Commons is a nice story and describes real problems. But economic theory has demonstrably underestimated the ability of communities to solve these problems. Lin Ostrom, at the University of Indiana, has a wonderful book, Governing the Commons that shows how conventional wisdom can sometimes turn out to be plain wrong. Ostrom has coordinated a major, decades-long research project that has examined literally thousands of situations involving commons-type resources. * * *

Ostrom argues, on the basis of voluminous amounts of empirical evidence, that problems such as overfishing aren't solved by privatization or centralization. Instead, they're best addressed by polycentric governance systems, in which central authorities provide broad enforcement, but let local communities set their own rules as much as possible. For example, problems of overfishing of lobsters along the Maine coast have been solved by local gangs of lobster fishermen that informally regulate certain parts of the coast, working in conjunction with the state government. This approach allows local users to use their specific knowledge to maintain resources while excluding free riders. As Ostrom suggests, something like this approach seems to be the best bet for managing resources on a wider scale. It's less applicable to some species than to others -- pelagic fish present a problem because of their long migration routes. But it appears to have a track record of actually working -- something that can't be said either for Frum's proposal of privatizing everything, or for the politicized quota systems that governments currently rely on.
Farrell was doing well until this last paragraph. Ostrom does not, so far as I am aware, ever argue for so bald a proposition as that "problems such as overfishing aren't solved by privatization." She usually makes the more subtle point that privatization isn't the only possible solution to the tragedy of the commons, and that under certain limited conditions a local community's customary rules might be superior.

Nor is it accurate to suggest that using a commons regulatory structure "appears to have a track record of actually working -- something that can't be said either for Frum's proposal of privatizing everything, or for the politicized quota systems that governments currently rely on." This is false. Empirical evidence shows that the ITQ system has been largely successful in Iceland's and New Zealand's fisheries, for example.

This not to say that ITQs or similar private property rights systems are universally superior or that they are without pitfalls. Ostrom (and many other researchers) have showed that common pool regimes sometimes are superior, given certain conditions, and that interventions by centralized governments often make things worse.

Still, common pool regimes have their problems too, and nothing in the literature suggests that they are universally superior. The choice of regulatory regimes is exceedingly complicated, and it requires a great deal of comparative institutional analysis. (For an example of the more sophisticated analysis to which I am referring, check out Hakan Eggert's 1999 paper.) It is almost never correct to issue simplistic, blanket pronouncements such as Farrell's conclusion that commons work and private property rights don't.

Friday, May 30, 2003

Lots of people, including some whom I respect, are upset over the FCC's plans to allow greater media consolidation. What seems to be lacking, however, are any empirical studies or hard facts that would confirm all the predictions of ill effects. Almost all of the articles and weblog postings written on the subject make predictions that seem to me to be far beyond what any factual evidence would support.

It reminds me of a case I worked on when clerking at the D.C. Circuit last year: Sinclair Broadcast Group v. FCC. The case involved a similar FCC rule that allowed common ownership of two television stations in the same local market only if one of the stations was not among the four highest ranked stations in the market and if eight independently owned, full-power, operational television stations remained in that market after the merger. (This was called the "eight voices" rule.)

What struck me about the case was that while the FCC's purported justification for this rule was to increase viewpoint diversity in the presentation of local broadcast news, it had literally no genuine empirical evidence that would show whether the rule actually had any effect whatsoever on such diversity. (The main piece of "evidence" that the FCC had trotted out again and again was a 1997 survey by Roper that merely showed the percentages of people who watch news programming on television.) Given that Congress had directed the FCC expressly to repeal any rules that lacked sufficient justification, the court had little choice but to remand the rule to the FCC for further review.

So, what bothers me about the current debate over consolidation is that people are making all these dire predictions of woeful effects, but I just don't see the empirical evidence for it. I suspect that the predictions have as little bearing in reality as did the FCC's "eight voices" rule, although I would be happy to be informed of any empirical evidence that might exist.

Wednesday, May 28, 2003

By the way, I had a wonderful weekend with my family. My pregnant Army-wife sister especially enjoyed the visit, as it gets rather lonely living by herself in Tennessee while her husband is in northern Iraq with the rest of the 101st Airborne. He called her once while she was here. He was just about to be promoted to Captain. Under more normal circumstances, he and his buddies (and my sister of course) would have had a big party to celebrate. As it was, his plans were to crack open some cans of Pepsi that he had been carrying around for the past few months.

Friday, May 23, 2003

Thanks to Joanne Jacobs, I found this article about Berkeley anthropologist John Ogbu, and his much-criticized efforts to figure out why black students in a wealthy Cleveland suburb underperform their white peers. Much-criticized because, like John McWhorter before him, Ogbu reached the uncomfortable conclusion that many of the black students he studied view academic achievement as something to be avoided because it amounts to "acting white."

This is a subject that I think and worry about from time to time, and I just don't know what the answer is. I'm sure, however, that any solution has to include radical changes in the way a lot of black parents treat their children from the youngest age. One can find these conclusions in McWhorter and Ogbu, but what really hit home with me was my personal experience.

When I was in college in Athens, Georgia, I went once a week to a predominantly black elementary school to read to some kindergarteners. Typically, I would go to the same classroom, and then take one of the children into the hall where I would read with him or her. So over the course of the school year, I would get a pretty good feel for how the entire class was doing on their reading skills.

Now the typical breakdown in a classroom was about 25 blacks, 4 or 5 whites, and, in one year, an Asian girl. And, unfortunately, the differences were stunning. Hardly any of the black 4 or 5 year-olds knew the alphabet, though most of them seemed eager to learn and to read. All of the white kids knew the alphabet pretty well. And the Asian girl could read several grades ahead.

One occasion stands out in my memory. A college-age female named Susanna was there at the same time as me, and she spent the hour reading to the Asian girl. After a while, Susanna turned to me with her jaw gaping open. She said, "I was just reading her this book, and we came across the word 'fleur de lis.' I didn't know what it was, but then she said, 'Fleur de lis. That's French.'"

The Asian girl might have been some sort of budding genius, of course. Even so, she didn't learn to read 'fleur de lis' in her kindergarten class. From what I saw of the classes, they mostly consisted of story time, play time, nap time, recess, snack time, etc. Not much learning going on there.

The only logical conclusion that a) the Asian girl had parents who drilled her on reading from day one, b) the white kids had parents who at least taught them the alphabet, and c) the black kids had parents who didn't do much at all to teach their kids to read. It was deeply saddening, because though the kids were just 4 or 5, I could already see that their lives would still go down vastly different paths over the next decade or so, even if we lived in a utopian society with no racism at all.

What can we do about it? The little bit that I did -- reading for an hour a week -- made me feel good about myself, and it even seemed to make some small difference in one particular little boy's attitude. (Once, on seeing me enter the room, he ran up and hugged my leg, and said, "When I grow up, I want to be a reader like you.")

Still, even a teacher with 6 hours a day could never do enough to help a room full of black 5-year-olds catch up with their white and Asian peers who are two years ahead by the time they start kindergarten. The black parents have to be involved. And I just don't know how to get so many people to radically change the way they behave at home with their children. Any governmental measure that stood a chance of working would be so incredibly intrusive and patronizing that no one would ever go for it.


Wednesday, May 21, 2003

Someone needs to write an update to Thomas Nagel's famous paper What is it Like to Be a Bat?. As revised, the new paper would discuss the vastly more difficult philosophical issue: What is it Like to Be a Two-Headed Turtle?
Several liberal civil rights groups have filed a lawsuit in Colorado seeking to have a school voucher program there declared in violation of Colorado's Constitution.
The Colorado constitution says, in part, that the state and political subdivisions cannot pay public money to support schools "controlled by any church or sectarian denomination whatsoever."

Ralph Neas, president of People for the American Way, a civil rights group that helped bring the lawsuit, said that "the language of Colorado's constitution underscores the strong belief of its citizens that taxpayer funds should not be used to subsidize religion." Other groups involved in the suit include the Colorado State Conference of Branches of the NAACP, the American Jewish Congress, the American Jewish Committee, the American Federation of Teachers, the National Education Association and the American Civil Liberties Union.
The Colorado constitional provision quoted is a so-called "Blaine amendment." Many states passed Blaine amendments in the late nineteenth-century, after Senator Blaine unsuccessfully sought a similar amendment to the United States Constitution.

There is no question that Blaine amendments were borne out of bigotry. They were the work of nativists who wanted at all costs to prevent immigrant Catholics from sharing in the same public funds that Protestants did. As the Arizona Supreme Court recently observed:
The Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing "Catholic menace." Viteritti, 15 Yale L. & Pol'y Rev. at 146; see also Stephen K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992). Its supporters were neither shy nor secretive about their motives. As one national publication which supported the measure wrote:
Mr. Blaine did, indeed bring forward . . . a Constitutional amendment directed against the Catholics, but the anti-Catholic excitement was, as every one knows now, a mere flurry; and all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.
Green, supra, at 54 (quoting The Nation, Mar. 16, 1876, at 173). Other contemporary sources labeled the amendment part of a plan to "institute a general war against the Catholic Church." Green, 36 Am. J. Legal Hist. at 44 (quoting The New York Tribune, July 8, 1875, at 4). While such efforts were unsuccessful at the federal level, the jingoist banner persisted in some states.
Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999). For further demonstration of the ugly roots of nineteenth-century separationism, one should consult Chicago law professor Philip Hamburger's 2002 book Separation of Church and State, or Joseph P. Viteritti, Blaine's Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. Journal of Law and Public Policy 657 (1998).

For purposes of this blog posting, here's an extended quote from a law review article by Kurt Lash:
Burdett's Amendment (which, like Blaine's, failed to win congressional approval) does not mention the religion clauses. Instead, the Amendment tracks the language of similar state constitutional amendments that were adopted during the same period. These amendments had nothing to do with separation of church and state; They were preemptive strikes against Roman Catholic efforts to share in the government funding of Protestant public schools.

As previously discussed, Protestant religious exercises were ubiquitous in the common schools of the mid-nineteenth century. Catholics, when given the choice between a free Protestant education and no education at all, often chose the latter. Although some states flirted with the idea of equal funding for public and private schools, Nativist opposition barred any efforts in that direction. In order to prevent any future attempts at equal funding, Nativists sponsored constitutional amendments which prohibited educational aid to sectarian institutions.

Sometimes cited by scholars (and the Supreme Court) as reflecting the inexorable evolution of Jeffersonian Separatism, these provisions were actually attempts to give the Protestant majority an educational monopoly. The most flagrant example of this is found in the Senate's version of the Blaine Amendment itself. Although educational funds were denied to "sectarian" (read: Roman Catholic) schools, the amendment was not to be "construed to prohibit the reading of the Bible (read: Protestant King James version) in any school or institution." This bears a striking resemblance to the 1856 Know Nothing election platform which also called for "schools without sectarian influence" while at the same time opposing Catholic attempts to remove the Bible from the public schools.

By constitutionalizing the use of the Protestant Bible and prohibiting public funds to "sectarian" institutions, the Blaine Amendment would have significantly amended contemporary First Amendment norms. For the first time, the Constitution would have recognized and protected state power to coercively indoctrinate students in the tenets of a particular religion. Not only were such provisions adopted alongside of compulsory education laws, but the day was not far off where anti-Catholic animus would result in the passage of laws that attempted to shut down private schools and force attendance at public school.

Those who participated in the debates over the Blaine Amendment were well aware of the real issue underlying the proposal. Senator Morton declared that America was a "Protestant country," and warned of a "large and growing class of people in this country who are utterly opposed to our present system of common schools, and who are opposed to any school that does not teach their religion." * * * In remarks made just before the vote that defeated the proposal, Senator Saulsbury deplored the Republicans' cynical support of the amendment:
When I listened to-day to the debates upon this question, when I heard the appeals that were made by the Senators to the religious prejudices and passions of mankind, I trembled for the future of my country. . . . Have not religious persecutions and appeals to religious prejudices stained the earth with blood and wrung from the hearts of millions the deepest agonies? Yet I see springing up in my own country for the base purposes of a party, to promote a presidential election, a disposition to drag down the sacred cross itself and make it subservient to party ends. I appeal to Heaven to thwart the purpose of all such partisans!
And here's another extended quote from an article by Ira Lupu:
By the middle of the nineteenth century, Catholic immigration and the rise of common schools with a decidedly Anglo-Saxon character laid the foundation for the earliest American struggles over government-sponsored religious speech. These conflicts tended to be local and not national-because of uneven immigration patterns and the locus of authority over education-but by the 1850s, nativist, anti- Catholic sentiment had crystallized into the formation of the Native American Party, which had membership requirements of white Protestant American ancestry.

As a result of industrialization, the Western expansion, and the end of race slavery in America, coupled with European circum-stances that made emigration an attractive option, the demography of America began to change more radically after the 1860s. Waves of immigration brought groups that did not fit the prevailing cultural norms. Catholics arrived in large numbers, Jews in smaller ones. The presence of significant numbers of Catholics, who tended to be concentrated in the northeastern industrial states, brought about conflict over government money. In particular, controversy arose over the financing of education, in common schools and Catholic schools, and over government speech, especially the use of a Protestant rather than Catholic version of the Bible as a text in the common schools. These controversies, reflecting the fracturing of Protestant hegemony in America, eventually found expression in the mid-1870s in a proposal by Republican presidential aspirant James Blaine.
* * *
As is evident from the text, the proposal had two main thrusts. One was to accomplish what incorporation of the Religion Clauses eventually brought about-the imposition of federal constitutional norms of religious freedom on the states. Because there were literally no decided cases under the Religion Clauses at the time, the content of those norms was decidedly unclear. The other more pointed and direct aim of the Blaine Amendment was to create a constitutional obstacle to public financing of sectarian (i.e., Catholic) education. This rather blatantly anti- Catholic proposal was thus primarily about government money, and, despite its failure, set the stage for later judicially created doctrines designed to have the same effect.
Now I'm sure that some of the liberals opposing school choice here are sincere in their belief that public schools are the best, that vouchers will fix nothing, and that there should be a wall of separation between church and state.

Still, the irony is unbelievably thick. By relying on state Blaine amendments, liberal civil rights groups are aligning themselves -- quite literally -- with nineteenth-century nativist bigotry. Did no one amongst those civil rights groups pause to consider, if nothing else, the bad public relations that could result from deploying such a tactic? Dare I hope to see some liberal bloggers condemn what's going on here?

Tuesday, May 20, 2003

An interesting story on a legal development in Missouri:
Days appear numbered for spurned spouses' legal recourse
The Kansas City Star

It might be the jilted spouse's ultimate revenge: suing the other woman.

But time could be running out in Missouri for the cause of action known as "alienation of affections" -- breaking up a marriage.

The Missouri Supreme Court is set to hear arguments today in the case of a Buchanan County woman, Katherine Helsel, who won $75,000 in damages from the other woman in her ex-husband's life: his chiropractor, Sivi Noellsch.

Noellsch, now Sivi Helsel, appealed the award, and in March the state's highest court made the rare move of taking over the case from the appeals court. That indicates to some observers that the court may be ready to abolish the alienation of affections tort, which exists in only eight other states.

"That is certainly the conventional wisdom," said Ken Jones, editor of Missouri Lawyers Weekly. "Especially the fact that there was no court of appeals opinion signals that the (Supreme) court wants to address the issue for the reason of changing the law."

* * *
"It is time for Missouri to end this affront to modern sensibilities and to join the overwhelming trend of modern case law in other jurisdictions," Noellsch's attorneys wrote.

But Katherine Helsel's attorneys think their client's award, and the tort itself, should stand.

The attorneys wrote that the tort "protects the marital relationship. It allows an injured plaintiff to recover from a third party who intentionally engages in wrongful actions. Additionally, it deters third persons from interfering" in a marriage.

A vestige of Anglo-Saxon property law, alienation of affections has been discarded since 1935 by courts or legislatures in 39 states, including Kansas, but none in the past 10 years. The states where it still is recognized include Illinois, Mississippi, Utah and North Carolina, where a jury in 1997 awarded $1 million to a woman whose husband left her for his secretary.
I'm not sure I completely understand the reasons behind this legal trend (other than the cynical, legal realist explanation that too many judges and politicians commit adultery these days, and abolished the cause of action so as to preclude any possibility that they themselves might become involved in such lawsuits).

Thing is, every state recognizes some form of a tort called "tortious interference with contract," whereby you have a right to sue for damages if someone else "intentionally and improperly interferes with [your] prospective contractual relations," to quote the Restatement of Torts Section 766B. So why should marriage be any different? Why should the contract made by marriage be treated as less worthy of state protection than a contract between two widget makers?

Here's what the attorneys argued in the Missouri case:
Arguing that the alienation of affections tort should be abolished, they say that divorce law already provides remedies for ex-spouses in the form of property and child support. In that light, they said, allowing a person to sue a third party is superfluous.

In abolishing the criminal conversation tort nearly 10 years ago, the court "recognized society's intent not to provide an additional cash reward for suffering from adultery," they said.

In the last lines of their brief, the attorneys wrote that the law sometimes cannot dictate matters of the heart.

"Experience teaches us that people are imperfect, can be fickle, may fall out of love, and may decide to get out of a marriage for reasons that others do not understand. They may go on to start new relationships," they wrote. "This is what happened in this case."
Yes, people's feelings sometimes change. But that's true in the business world as well -- a businessperson might get tired of working with a particular supplier, and might succumb to the desire to break the contract in order to reward another supplier with whom he is friendly. Yet the law allows the jilted supplier to sue in such situations, if the new supplier attempted to interfere with the preexisting contract.

Monday, May 19, 2003

I've been blogging a lot lately; I don't know what's gotten into me. Anyway, I don't plan to blog much for the rest of this week. I got a new First Things in the mail today, and that's going to occupy me for a bit. Then I really want to read Baudrillard's Simulacra and Simulation, which I also got recently via (What a dangerous website that is, by the way; if I don't watch myself, I could spend my entire disposable salary on used books there.) It looks like a rather foggy sort of a book, but I figure that if Keanu Reeves can read it, as is reported, then I can too.

Then on Friday, one of my sisters -- the one whose husband is with the 101st in Iraq -- is coming to visit for several days. Anyway, I'll be busy most of this week.
A plug for some old friends of mine: The Adams Duo, a husband-and-wife team playing classical guitar and cello. I first met Jon Adams about ten years ago when we were both playing at the Christopher Parkening masterclass. Here's their website, you can hear clips from their latest album here, and here's the album review from Acoustic Guitar magazine:
The Adams Duo, Montana Skies.

The rich sonorities on this CD by the Adams Duo make one wonder why cello and guitar duos are so rare. Jennifer Adams' lyrical cello work blends superbly with the intricate nylon- and steel-string guitar playing of her husband Jonathan on tunes that range from Jonathan's neo-romantic originals to Celtic and Brazilian tunes to Beatles classics. There are many highlights here, including Jonathan's hypnotic original "December Morning," the traditional "Bridget O'Malley," and an elaborate, imaginative reworking of "Eleanor Rigby." These tunes and the rest of the material on Montana Skies are characterized by great attention to tone and dynamics, played with deep passion and expression.
Via a law-and-econ email list that I subscribe to, I came across this marvelous interview that my friend Tom Hazlett did with Ronald Coase back in 1997. Some choice quotes:
Economics has been becoming more and more abstract, less and less related to what goes on in the real world. In fact, economists have devoted themselves to studying imaginary systems, and they don't distinguish between the imaginary system and the real world. That's what modern economics has been and continues to be. All the prestige goes to people who produce the most abstract results about an economic system that doesn't exist.
And this:
TH: Can you give us an example of what you consider to be a good regulation and then an example of what you consider to be a not-so-good regulation?

RC: This is a very interesting question because one can't give an answer to it. When I was editor of The Journal of Law and Economics, we published a whole series of studies of regulation and its effects. Almost all the studies - perhaps all the studies - suggested that the results of regulation had been bad, that the prices were higher, that the product was worse adapted to the needs of consumers, than it otherwise would have been. I was not willing to accept the view that all regulation was bound to produce these results. Therefore, what was my explanation for the results we had? I argued that the most probable explanation was that the government now operates on such a massive scale that it had reached the stage of what economists call negative marginal returns. Anything additional it does, it messes up. But that doesn't mean that if we reduce the size of government considerably, we wouldn't find then that there were some activities it did well. Until we reduce the size of government, we won't know what they are.

TH: What's an example of bad regulation?

RC: I can't remember one that's good. Regulation of transport, regulation of agriculture - agriculture is a, zoning is z. You know, you go from a to z, they are all bad. There were so many studies, and the result was quite universal: the effects were bad.
And this one, which discusses one of my very favorite Coase articles of all time (though one that seems to be little noticed):
TH: What about your article on the market for goods and the market for ideas in the American Economic Review in 1974? You created quite a stir with this and were interviewed by Time magazine. What did you say in that article, and why was it so controversial?

RC: It was controversial because I said that the arguments for regulation of the market for goods and the regulation of the market for ideas are essentially the same, except that they're perhaps stronger in the area of ideas if you assume consumer ignorance. It's easier for people to discover that they have a bad can of peaches than it is for them to discover that they have a bad idea.

TH: So if you think that the consumer, ignorant as he is, ought to be protected by a government regulator, then you should really believe that the government regulator ought to step in and police the speech of professors or politicians or pundits.

RC: That's right. If the government is competent to do the one, it's competent to do the other.

TH: Then there ought to be a federal philosophy commission.

RC: That's right. The press was horrified by the idea. If the argument is exactly the same for regulating the press as for regulating peaches, this meant that I was arguing for regulation of the press.

TH: You have to be careful with reductio ad absurdum arguments.

RC: As they assumed that all regulation in the market for goods was fine, it never struck them that the argument was really the other way around.
A reader wrote and asked if I could please create an RSS feed (whatever that is) for my blog. He provided a link to a webpage with instructions: So I went to the webpage and followed the instructions. I guess it worked, but I wouldn't know. Apparently it creates some sort of new link ( for this blog.

Sunday, May 18, 2003

Practically every weekday, my son Ethan (3.5) asks what day tomorrow is. What he really wants to know if is it's going to be Saturday, because "that's the day Daddy stays home."

With that in mind, here's a conversation with my son Ethan tonight as I put him to bed:

Ethan: "What's tomorrow?"

I say, "Monday." And knowing what he's thinking, I add, "It's the day I go to work."

Ethan, with a despondent expression: "I wish every day was Sunday and Saturday. No other days. Just Sunday and Saturday all the time."
Jack Balkin has some interesting thoughts in response to Larry Solum's devastating critique of a recent column by Edward Lazarus (which itself was in response to a dissent by Judge Kozinski, to complete the trail). Balkin says this, in explanation of how it was that the Supreme Court came to protect equal rights for women under the Equal Protection Clause:
It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. * * *

That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.
(Emphasis added to point out phrases to which I intend to respond.)

I don't disagree, of course, that the Constitution should do more than protect aristocratic white male property owners. But I absolutely disagree that the greatness of the Constitution (as interpreted by the Supreme Court) has anything whatsoever to do with the Supreme Court's willingness to "bring the Constitution in line with the times." Sometimes the times are correct and good; and sometimes they are not. The degree to which this theory is appealing is surely dependent on whether, at a certain point in history, one's own political opinions are "in line with the times."

Moving on, one of the classic problems of theories of judicial review (at least since Alexander Bickel) is how to properly account for the "counter-majoritarian" problem -- i.e., how come judges have the authority to strike down legislation that a majority supports?

The dilemma, of course, arises from the fact that counter-majoritarian rulings are by far the most useful, at least to the minorities who would otherwise be subject to the majority's preferences. The most useful sort of constitutional ruling, in other words, is one that goes against the grain of the times rather than falling in line with the times.

If that sounds odd, think how much more useful it would have been to have a constitutional ruling in Dred Scott that went against the grain of the times and allowed Congress to protect freed slaves. Or think how useful it would have been for gay people to have constitutional protection against sodomy laws back when such laws were more prevalent and more regularly enforced, as opposed to a time when they have been almost thoroughly eradicated anyway.

But Balkin's theory, it seems to me, calls for what amount to majoritarian constitutional rulings -- majoritarian, that is, in the sense that they are based on national majorities (as opposed to local majorities). Balkin's theory, if I read him correctly, is that the Court should be a perpetual Johnny-come-lately, ever sticking its finger in the air so that it can discern the past decade's trends and write them into the Constitution (in the event that a few outlier states or towns haven't fallen in line with the rest of the country). He applauds the Court for discerning what a broad majority of the country had come to think on matters of sexual equality, and then imposing that view on the oddball local majorities who had yet to be convinced.

That sort of theory is a recipe for making the Court largely superfluous, useful only to the extent it is able to lumber around patching up minor holes in political movements built by political actors. After all, if society in general is overwhelmingly moving towards legal protection for the equality of women, how much good is the Supreme Court really doing by finally announcing its intention to strike down a few remnants of discriminatory legislation that would likely have been eradicated by the political process in the near future anyway?

To be blunt, if the Court's proudest achievements are reducible to its willingess to follow the election returns, why bother having a Supreme Court with a judicial review function at all? Why not just leave the election returns to stand on their own?

UPDATE: I now see that Larry Solum has even more comments in response to Balkin here.
When I read this Newsweek article, I couldn't help wondering if it was someone's idea of a joke:
May 26 issue — Your parents aren’t the only ones who hate your music—some Iraqis hate it, too. U.S. military units have been breaking Saddam supporters with long sessions in which they’re forced to listen to heavy-metal and children’s songs. “Trust me, it works,” says one U.S. operative.

THE IDEA, says Sgt. Mark Hadsell, is to break a subject’s resistance by annoying that person with what some Iraqis would consider culturally offensive music. The songs that are being played include “Bodies” from the Vin Diesel “XXX” movie soundtrack and Metallica’s “Enter Sandman.” “These people haven’t heard heavy metal before,” he explains. “They can’t take it.” Few people could put up with the sledgehammer riffs of Metallica, and kiddie songs aren’t that much easier, especially when selections include the “Sesame Street” theme and some of purple dinosaur Barney’s crooning.
Just wait til the Army breaks out the Eminem CD. Not that I'm in favor of that degree of torture . . .
I loved this evisceration of modern pop singers' penchant for melismatic excess.
An interesting study:
Put a man and a woman side by side at the same firm, with the same background, job title and productivity level, and you might be surprised when you look at their paychecks.

Though an often-cited statistic says women take home 76 cents for every dollar a man does, men and women who work side by side typically earn the same, researchers say.
* * *
New research appears to knock down any lingering suspicions that employers blatantly discriminate against women in their pay. It instead attributes the gender gap in pay to more basic cultural realities, such as the fact that women are far more likely than men to step back from their careers to care for children. They quit their jobs for a time, or take lower-paying jobs that offer "flex time" or choose lower-paying careers with child-friendly hours, such as teaching.

On average, women who work the same hours as men make less in nearly every occupation, federal Department of Labor statistics for 2001 show.

"The wage gap--after accounting for legitimate differences that reflect choices and not discrimination--is really very small," said June O'Neill, a professor of economics in the business school at Baruch College in New York and a former director of the Congressional Budget Office.

A study by O'Neill in this month's American Economic Review explains up to 97 percent of the wage gap in salaries for men and women 35 and 43 years old as being a matter of choices made, not discrimination suffered.

The biggest factor, O'Neill found, is the number of years worked since age 18. She also found that women who wait until after 30 to have a child earn 7 percent more, on average, than those who don't.
This is a bizarre story:
From the time his son was old enough to understand, Kamau Marcharia has been telling Ramon the story of an ancestor who was tied to the bumper of a Model T Ford and dragged to his death.

Lynching is part of black Southerners' heritage.

But Marcharia was not prepared for the call that came three years ago when Ramon and three other black boys got into a fight with a white boy at middle school and were summoned to court to answer charges of lynching.

''I didn't even know there was a law like that,'' the veteran civil rights activist says. ''I was outraged. See, a 13-year-old fighting because somebody either pushed him or punched him is not lynching. ...

''When I hear that term, psychologically I cannot get that out of my mind, the picture of some horrible event.''

South Carolina's lynching law, the only one of four in the nation that is still routinely used, was enacted to end the state's long history of white vigilante justice against blacks. But that law has borne strange fruit.

Today in South Carolina, blacks are most often the ones charged with lynching defined in the statute as any act of violence by two or more people against another, regardless of race.

Though they make up just 30 percent of the state's population, blacks account for 63 percent of the lynching charges, according to an Associated Press analysis of crime statistics.

Saturday, May 17, 2003

I watched the Kevin Kline movie "The Emperor's Club" the other night. If you haven't seen it, it's about a prep school professor and his struggle to teach his students to be virtuous, with notable lack of success in the case of a Senator's son who remains irrefragably dishonest. I didn't really like it that much, and I'm trying to figure out why I liked Dead Poets' Society so much more.

The odd thing is that I agree entirely with the message of Emperor's Club -- a "man's character is his fate," says Kline's character, and the most important thing is to be virtuous. And I disagree almost wholeheartedly with the message of Dead Poets' Society, in which (if you recall) Robin Williams urged his students to break rules for the sake of breaking rules. (I can imagine few "principles" that are more likely to work ill when urged upon teenage boys, whose every natural inclination is to break rules that need to be kept.)

Part of it is that Kline's character is not consistently protrayed. His every utterance seems to be devoted to virtue of some sort, but the one scene in which he displays the most emotion is when the school board announces that they have chosen someone else to be the new headmaster. In a huff, Kline's character offers his resignation. It makes little sense that the main occasion on which Kline's character shows emotion is when his personal ambition, otherwise unmentioned in the film, was slighted.

Another significant part is that the overall story is not that convincing. I just didn't find it believable that the grown-up Senator's son (Sedgewick Bell) would go to all the trouble to re-enact the Roman history competition with the purported aim of "reclaiming his honor," only to cheat again. Why bother?

Finally, the most significant difference is that Emperor's Club is rather bland for the most part, while Dead Poets' Society is much more intensely romantic (I mean "romantic" in the nineteenth-century sense). Almost too intense, in fact, in a way that is reminiscent of the overheated and suicidal romanticism one finds in Goethe's Sorrows of Young Werther. With that intensity comes dramatic effect, which seemed lacking in Emperor's Club.

So I guess that's about it. Too bad that a movie with a sound moral message couldn't have been better done and more inspiring.

Friday, May 16, 2003

And don't miss this Guardian article on the origins of the Lindisfarne manuscript. Fascinating stuff. (For the British Library's guide to the manuscript, go here.)
I got a kick out of this New York Times article on the dullest weblog in the world, which itself is absolutely hilarious.
Mr. Walker launched The Dullest Blog in the World last November, posting it at, a Christian site he maintains when he's not busy as a youth worker at Holy Trinity Church, serving an Anglican congregation in Cookham, 25 miles west of London. The blog's dullness was inspired - if that is the correct word - by Mr. Walker's careful study of the blogosphere.

"I realized that blogs tend to be either highly interesting or else something that's rather the opposite of that," he said with characteristic understatement. "So it seemed like quite a good target for a bit of creative satire."
* * *
In response to his "Blinking at Least Once" entry, one reader commented, "If you blink with only one eye, it is a wink." Another chimed in: "I was going to make a comment, then it occurred to me it was not necessary. So I haven't."

Another asked, apropos of nothing: "Why is the alphabet in that order? Is it because of that song?"
Two important spectrum-related decisions by the FCC were issued yesterday. First, the FCC proposed to release an additional 255 MHz in the 5.4 band for unlicensed use -- i.e., Wi-Fi. (The FCC release in PDF form is here.) Second, it proposed to allow companies that have bought spectrum at the FCC's auctions to engage in secondary trading/leasing markets. (The FCC release for that proposal is here, and the New York Times covers the proposal here.)

The move to allow further market trading is a good one, in a second-best sort of way. Given that exclusive spectrum licenses exist in the first place, you might as well allow companies to engage in further trading amongst themselves. On the other hand, it is possible that this decision will merely further entrench the market-based, exclusive rights model of spectrum usage, making it more difficult ultimately to move to a commons-based model in which property rights inhere in spectrum-using devices rather than in the spectrum itself. (I.e., no one has exclusive property rights over the capacity to produce sound waves in a particular city; rather, the relevant property rights relate to the use of devices that produce sound waves, i.e., your voice or stereo system or television, etc.).
You're driving on a three-lane freeway (three lanes going in your direction, that is). Traffic is heavy and just on the verge of a slowdown. Then it happens: You see brake lights stretching ahead into the distance, and traffic comes to a stop. You wonder why. Perhaps some idiot got into a wreck.

Then you see it: A large orange sign reading, "Right Lane Closed, One Mile Ahead -- Construction Zone." And the response that other people have to this sign is to begin merging into the two left lanes. Thus, the traffic jam.

But here's the dilemma: As you pass the orange sign, you now see that virtually everyone ahead of you has already merged into the two left lanes, which are now at a complete standstill. Ahead of you stretches the right lane, almost completely free of traffic for the next mile.

Do you:

A) Merge into the two left lanes like everyone else, or
B) Drive at 60 down the right lane, and then merge at the last possible moment before the right lane is closed.

I say the answer should clearly be B. But I get the feeling, from having been in quite a few such situations, that most people don't agree with me, as evidenced by their behavior and by their refusal to let me merge at the beginning of the construction zone.

Here's why the answer should be B. The construction zone is a particular length -- say, two miles. For that distance, three lanes of traffic are going to have to be squeezed into two. And at some point prior to the construction zone, those three lanes of traffic are going to have to come to a standstill while people merge to the left. The point is, merging a mile ahead of the construction zone has the same effect as extending the construction zone. That is, if everyone is going to merge a mile ahead, leaving the right lane empty for that mile, you're in the same situation as if the construction zone were three miles long and everyone merged right at the construction zone.

In other words, it can't possibly be beneficial to merge ahead of time when traffic is heavy. All this accomplishes is to waste the right lane for the one mile approaching the construction zone, and effectively extend the distance for which all the traffic must squeeze into two lanes. It has to be a more efficient use of the road space to utilize the right lane to its full capacity for the entire distance, and then merge right at the construction zone.

Thing is, I'm not sure this principle applies when traffic is light. If there are few enough cars that you can easily merge ahead of time with everyone still maintaining their 70 mph speed, that might be preferable. This is because if you wait until the last second, you might have a hard time merging at 70, causing you to slam on your brakes, and thereby slow down traffic more than if you had gently merged ahead of time.

Thursday, May 15, 2003

Here's a touching story on some of the Lost Boys of Sudan (now in Charlotte, NC).
Yesterday, my wife heard a radio broadcast of the middle movement of Ravel's Piano Concerto in G, except with a twist: a classical guitarist was playing the melody line. (It's one of the most beautiful works of the 20th century; click here to hear a clip of Martha Argerich playing it.)

So last night, after the kids were in bed, my wife and I sat down to try our hand at it -- her on the piano and me on the classical guitar. She had played the entire concerto in college, and still had the music (arranged for two pianos). The first few pages went fairly well -- the melody actually fit nicely on the guitar. After that, it became much more difficult (i.e., lots of notes), beyond my ability to arrange for the guitar while sight-reading.

But it was lovely indeed -- a shared moment of beauty at the end of a long day.

Wednesday, May 14, 2003

Thanks to Christianity Today's weblog, here are several interesting stories about religious implications of The Matrix:

Tuesday, May 13, 2003

On the Harvard Federalist Society blog, Adam White wonders why a "a list of the Top 50 most-cited law-school professors having entered academia since 1992 contains only two HLS profs (Hanson and Jolls)?" I too found that intriguing. (I also couldn't help noticing that 5 of the top 22 also clerked for Stephen Williams: Chicago's Eric Posner, Miami's Michael Froomkin, Michigan's Steven Croley, Hofstra's Peter Spiro, and Harvard's Christine Jolls. And there's another Williams clerk further down the list: Chicago's Elizabeth Garrett. I can't say for sure, but Williams may have more ex-clerks on that list than any other judge.)

Monday, May 12, 2003

So Scientific American has this fascinating article on the multiple universe theory -- and takes the theory quite seriously. But I don't understand the point it makes at the beginning:
Is there a copy of you reading this article? A person who is not you but who lives on a planet called Earth, with misty mountains, fertile fields and sprawling cities, in a solar system with eight other planets? The life of this person has been identical to yours in every respect. But perhaps he or she now decides to put down this article without finishing it, while you read on.
The idea of such an alter ego seems strange and implausible, but it looks as if we will just have to live with it, because it is supported by astronomical observations. The simplest and most popular cosmological model today predicts that you have a twin in a galaxy about 10 to the 1028 meters from here. This distance is so large that it is beyond astronomical, but that does not make your doppelgänger any less real. The estimate is derived from elementary probability and does not even assume speculative modern physics, merely that space is infinite (or at least sufficiently large) in size and almost uniformly filled with matter, as observations indicate. In infinite space, even the most unlikely events must take place somewhere. There are infinitely many other inhabited planets, including not just one but infinitely many that have people with the same appearance, name and memories as you, who play out every possible permutation of your life choices.
I don't follow the chain of logic here. If space is infinite, I don't see how that implies that every physical possibility is realized somewhere. It seems an utter non sequitur.
Scott Gerber has an interesting article on discussing Justice Thomas's singular commitment to the Declaration of Independence.

Sunday, May 11, 2003

Go read this interview with one of my favorite social critics: Miss Manners. A quote:
TAE: Speaking of technological advances, is "call waiting" rude?

MARTIN: Absolutely. It presumes a policy of last come, first served, and that is against all the rules of polite precedence.

TAE: But what if there's an emergency?

MARTIN: Telephone companies will still break into a conversation in case of fire, crime, or medical emergency.

TAE: So you'd rather get a busy signal?

MARTIN: A busy signal is a quick, efficient, and free way of notifying people that one's line is busy. Why anyone would pay extra for the privilege of offending current callers while having to make this explanation himself, I can't imagine.

Saturday, May 10, 2003

Steven den Beste discusses the anthropic principle, and responds with an argument that I've seen in many other places:
Why are the relative strengths of the natural laws tuned to make star formation, and planetary formation, and life formation possible? Is it the result of intelligent design? It doesn't have to be. The thing to point out is that if they were not properly tuned, there'd be no intelligent life in the universe to even ask the question.

Is intelligence itself so improbable that the only explanation for its formation is supernatural intervention? It's not clear that it is all that improbable; we're not in a position to know that yet. But even assuming that it is improbable, even long shot bets can pay off. But if the odds against natural development of intelligence, without supernatural intervention, were fantastically long, then if it hadn't actually happened in this universe there would be no intelligent beings worrying about the problem.
Den Beste's response is, in the most precise meaning of the phrase, begging the question. If the question is why the universe is so fine-tuned for life, when there are so many plausible alternative universes in which life would have been impossible, it is simply not responsive to say, "If our universe weren't inhabitable, we wouldn't be here to ask the question." Yes, indeed, we wouldn't be here -- and that is precisely the thing for which the anthropic argument is asking an explanation.
From the Fairbanks Daily News-Miner comes this report on a panel presentation by Justice Scalia:
The appointment of judges is an increasingly political process in which applicants personal views are becoming more important than their legal expertise, a panel of prominent judges led by U.S. Supreme Court Justice Antonin Scalia said Friday in Fairbanks.
* * *
Scalia, who elicited most of the questions from the crowd, said he's not surprised that judicial applicants' political views have become the major consideration in whether they are confirmed by the Senate.

"I've been predicting the current crisis for 20 years," Scalia said. "I don't think it's extraordinary that members of the Senate want to ask new judges what new rights will they acknowledge."

* * *
"You're not looking for good lawyers anymore; you shouldn't be looking for good lawyers," Scalia said. "You should be looking for people that agree with you."

Besides Scalia, the panel consisted of 9th U.S. Circuit Court of Appeals Judge Andrew Kleinfeld, who is from Fairbanks, Alaska Supreme Court Justice Robert Eastaugh and Alaska Court of Appeals Chief Judge Robert Coats.

* * *
With Kleinfeld and Scalia, an often outspoken critic of the 9th Circuit Court, sitting at the same table, it didn't take long for the discussion to turn to proposals about reducing some of the court's jurisdiction, a massive area that includes Arizona, all of the West Coast, Alaska and Hawaii.

* * * Scalia said he would prefer Northern California and Southern California to be put in separate jurisdictions, though that process would likely prompt a political uproar. * * *
Scalia said decisions made by the 9th Circuit judges are reversed by the U.S. Supreme Court more often than any other jurisdiction. The problem, he said, is that the court's caseload is so large that it doesn't have time to catch faulty decisions before an appeal is made to the U.S. Supreme Court.

* * * One audience member asked the justice about his thoughts on the USA Patriot Act, an anti-terrorism measure passed after Sept. 11, 2001, that gave government officials broad new surveillance powers and limited the information available to the public about the government.

Scalia said the more irresponsible and violent a society becomes, the more citizens' freedoms will be restricted. He said that U.S. citizens tend to interpret the Constitution as giving them more power than the document actually provides.

"I will enforce the Constitutional minimums," Scalia said. "But they are minimums. You've got to realize that."

Friday, May 09, 2003

Lawyer types should enjoy this latest opinion from Judge Easterbrook. An extended quote:
Garst's complaint did not allege any specific fraud, leading Lockheed to move for its dismissal. . . . Before the district court could act on Lockheed's motion, Garst filed an amended complaint. At 16 pages and 71 paragraphs, it was 50% longer than the initial complaint--but, the district judge concluded, no better. The court dismissed it for failure to plead fraud with particularity . . . .

Garst's second amended complaint ballooned to 74 double-spaced pages with 198 paragraphs. Concise it was not. Before Lockheed could respond, Garst filed a third amended complaint, which broke the scale at 109 pages containing 345 numbered paragraphs; this document had 74 attachments, many of them lengthy. Lockheed asked the district judge to dismiss this complaint for failure to plead fraud with particularity, as Fed. R. Civ. P. 9(b) requires, and for the omission of any "short and plain statement of the claim", as Fed. R. Civ. P. 8(a)(2) contemplates. These rules are not in conflict: it is possible to write a short statement narrating the claim--which is to say, the basic grievance--even if Rule 9(b) requires supplemental particulars. But the district judge concluded that this complaint is so sprawling as to be essentially incomprehensible (a Rule 8 problem) and that despite the bloat it lacks details outlining fraud (a Rule 9 shortcoming). Instead of dismissing this complaint, the judge directed Garst to file a more definite statement. . . . Garst responded with 23 single-spaced pages plus 25 new attachments. The statement is loaded with so many acronyms and cross-references to the third amended complaint (plus its attachments) that no one could understand it without juggling multiple documents. Concluding that matters had taken a turn for the worse, the district judge threw up his hands and dismissed the complaint, with prejudice, for Garst's inability or unwillingness to conform his pleadings to Rules 8 and 9.

The third amended complaint and statement together equate to 155 double-spaced pages and more than 400 numbered paragraphs, plus 99 attachments. You'd think that all this paper and ink would be enough to narrate at least one false claim. Yet Garst's appellate brief does not extract from the pleadings a single instance of a false statement made to obtain payment. A few selections from the "more definite statement" show why, after four years of overseeing Garst's efforts to plead a claim, the district judge's patience ran out. Here is the first paragraph of the "more definite statement," right under the caption "SPECIFIC FALSE OR FRAUDULENT CLAIMS FOR PAYMENT (SFCFP)" (a caption that shows Garst's love of inscrutable acronyms):

Claim for $ 2,584,926.04, MDS Ex. 1, TAC Ex. 47, submitted on August 9, 1993 and related payments by T.A. Sieverson, Vice-President of Lockheed Integrated Solutions Company, Lockheed Corporation to VA Contracting Officer Steve Stapleton for equipment and service provided during Phase I and Phase II of the OA&MM/ISMS LAN/WAN PROJECT. See TAC PP 141-181, 217-243, 252, 280-282, 291-295.

The acronyms alone force readers to look elsewhere. MDS means "More Definite Statement" and "TAC" means "Third Amended Complaint." LAN is local area network, WAN is wide-area network, and PROJECT appears to be the word "project" masquerading as an acronym. What "OA&MM/ISMS" might mean, we have not endeavored to discover. It is not defined anywhere in the more definite statement. To understand the paragraph one would have to read two exhibits and seventy-seven paragraphs scattered throughout the third amended complaint! This is simplification? Yet still one would not learn (a) what Sieverson said, (b) why it is false, and (c) what OA&MM/ISMS stands for. Paragraph 21 of the "specific false claims" reads: "All Lockheed invoices and payments within the statute of limitations following Lockheed purchasing tickets in excess of one thousand dollars for VA presidential appointees and senior executives, as detailed in TAC P55-Ex 5 and 6." This is specific? How does "all Lockheed invoices and payments within the statute of limitations" zero in on the fraud? And, once again, what were the statements and why were they false?

* * *

We could go on with other paragraphs of the complaint and statement, but there would be little point to the exercise. . . . [E]ven if it were possible to navigate through these papers to a few specific instances of fraud, why should the court be obliged to try? Rule 8(a) requires parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud. Federal judges have better things to do, and the substantial subsidy of litigation (court costs do not begin to cover the expense of the judiciary) should be targeted on those litigants who take the preliminary steps to assemble a comprehensible claim. . . .

Some complaints are windy but understandable. Surplusage can and should be ignored. Instead of insisting that the parties perfect their pleadings, a judge should bypass the dross and get on with the case. A district court is not "authorized to dismiss a complaint merely because it contains repetitious and irrelevant matter, a disposable husk around a core of proper pleading." But although "fat in a complaint can be ignored", "dismissal of a complaint on the ground that it is unintelligible is unexceptionable." Length may make a complaint unintelligible, by scattering and concealing in a morass of irrelevancies the few allegations that matter. Three other circuits have held that length and complexity may doom a complaint by obfuscating the claim's essence. . . . At 400 paragraphs covering 155 pages, and followed by 99 attachments, Garst's distended pleadings join that unsavory company. A concise statement of the claim illustrated by 400 concrete examples of fraud would be one thing, but 400 variations on the kind of paragraph we have quoted are quite another. Complaints like this are pestilential, and the district court showed great restraint in wading through four iterations plus one "more definite statement" before giving up. Garst received more judicial attention than his pleadings deserved.
More fun Google searches that led to this blog (I can't help myself):

Are wars really worth it? -- Yes. All wars are worth it, don't you think?

"Remedial Activism" -- Someone must have slacked off in high school, I see. What is our educational system coming to when so many students end up being placed in remedial activism?

Thursday, May 08, 2003

In reading the oral argument transcript from the recent Supreme Court case of Nike v. Kasky, I was struck by how very few instances there are where anyone utters more than two sentences in a row that are structurally and grammatically flawless, as one would expect to see in writing. Nearly everyone stumbles over their words on many occasions. And this is Laurence Tribe, Ted Olson, and the Justices themselves, all of whom are very smart and accomplished people, and all of whom are talking about a case that they have studied intensely. Yet the spoken words of these luminaries come across on the printed page, in many instances, as rather disjointed. This sparks a few thoughts:

1) Extemporaneous speaking is hard.
2) I sure would hate to see my own conversations transcribed for the world to read.
3) If even the most brilliant lawyers stumble over their words so often, maybe people should give George Bush a little slack.

UPDATE: A couple of examples to show what I mean:

Question from a Justice on p. 7 of the transcript:
Do -- do we have a case in which we say that a -- a civil scheme -- I -- I suppose there are some criminal remedies here, but let's just think about this as a civil scheme, that a civil scheme of this type is so burdensome, so extensive, that it chills speech and is therefore invalid? I --- I ---
And a followup question:
We -- we have plenty of criminal cases that the criminal laws are either vague or overly broad and that they chill speech.

From Laurence Tribe, p. 8 of the transcript:
I mean, the central meaning of New York Times v. Sullivan and Gertz and, you know, and Time v. Hill is that even when you have someone who is harmed, reputational harm, concrete harm, so that the regulation of speech is simply ancillary to vindicating tangible interest, even there the chilling effect is so great that even though there's no positive value in false statements you have to put a burden --- it's a matter of public interest.
Here's a lengthy article describing the controversy over Justice Thomas's upcoming graduation speech at the University of Georgia law school:
A petition objecting to U.S. Supreme Court Justice Clarence Thomas as the University of Georgia Law School commencement speaker this month claims Thomas is "unworthy" because of his opinion in the court's December 2000 decision that ended the recount of Florida's votes in the last presidential election.

UGA law professor Donald Wilkes said 11 faculty members and 50 students have signed the petition objecting to Thomas and the "stealthy" selection method for choosing a commencement speaker.

"Justice Thomas's participation in the scandalous Bush v. Gore decision is, without more, sufficient to render him unworthy of being invited to give the graduation speech," Wilkes said.

But it appears the petition is falling on deaf ears among decision makers at the institution. UGA Law School Dean David Shipley said Thomas would speak as scheduled.

"Justice Thomas will be our graduation speaker on May 17," Shipley told "I think we'll have a wonderful ceremony, and the vast majority of the people on the faculty and the student body are excited that he's going to be our speaker."
* * *
Wilkes described the number of people who've signed the anti-Thomas petition as "roughly one-third of the law school faculty and includes the only tenured black professor at the law school.

"The decision to invite Justice Thomas is appalling, unwise and perverse - the embodiment of bad judgment," Wilkes told
I find it amazing that a third of any law school faculty, let alone at Georgia of all places, would sign a protest letter against allowing a Supreme Court Justice to deliver a graduation speech.

Wednesday, May 07, 2003

Eve Tushnet makes several good points in a series of posts reflecting on Jack Balkin's musings on Bush v. Gore (start here and scroll down.)
This forthcoming article looks quite interesting:

To Insure Prejudice: Racial Disparities in Taxicab Tipping

Yale Law School; Yale School of Management
Yale Law School
Yale Law School Center for the Study of Corporate Law

We collected data on over 1000 taxicab rides in New Haven, CT in 2001. After controlling for a host of other variables, we find two potential racial disparities in tipping: (1) African-American cab drivers were tipped approximately one-third less than white cab drivers; and (2) African-American passengers tipped approximately one-half the amount of white passengers (African-American passengers are 3.7 times more likely than white passengers to leave no tip).
Many studies have documented seller discrimination against consumers, but this study tests and finds that consumers discriminate based on the seller's race. African-American passengers also participated in the racial discrimination. While African-American passengers generally tipped less, they also tipped black drivers approximately one-third less than they tipped white drivers.

The finding that African-American passengers tend to tip less may not be robust to including better controls for passenger social class. But it is still possible to test for the racialized inference that cab drivers (who also could not directly observe passenger income) might make. Regressions suggest that a "rational" statistical discriminator would expect African Americans to tip 56.5% less than white passengers.

These findings suggest that government-mandated tipping (via a "tip included" decal) might reduce two different types of disparate treatment. First, mandated tipping would directly reduce the passenger discrimination against black drivers documented in this study. Second, mandated tipping might indirectly reduce the widely-documented tendency of drivers to refuse to pick up black passengers.
Janet Reno and Harvard Law Review babies -- Nate Oman has the picture.
Matthew Yglesias complains about the exclusionary rule:
I'm always disatisfied with the results of these exclusionary rule cases. It seems to me that under circumstances like this, you have two guilty parties: a guy who murdered a girl and a cop who violated the constitution. Faced with two guilty parties, my feeling is that both men should go to jail. Instead, the upshot of the exclusionary rule is that neither will go to jail. It's possible, of course, that the police will find evidence that's not "fruit from the poison tree," in which case a conviction will be secured, but then again they may not. At any rate, it seems to me that actually punishing cops for misconduct (harshly, one would hope) would be a better guarentee of the rights of the accused than would the exclusionary rule, which de facto punishes society at large for the wrongdoing of one (or a few) people.
Yglesias is in good company. Namely, Judge Cardozo, who famously wrote that under the exclusionary rule, "The criminal is to go free because the constable has blundered." New York v. Defore, 242 N.Y. 13, 21 (1926). Cardozo went on to note "how far-reaching in its effect upon society" the exclusionary rule would be when "[the] pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious." Id. at 23.

Also, a plurality opinion in Irvine v. California, 347 U.S. 128, 136 (1954), made a similar complaint:
Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.

Tuesday, May 06, 2003

Don't miss Ramesh Ponnuru's interview with Hernando de Soto (the Peruvian reformer, not the 16th century explorer) on the importance of establishing property rights in Iraq. I saw him speak to an audience of congressional staffers (and a few members of Congress) about a year and a half ago, and was very impressed, as I had expected from reading his book The Mystery of Capital. I hope he still has an audience in Washington, particularly among the people planning the Iraqi reconstruction.

Monday, May 05, 2003

Anyone who has a baby these days cannot avoid the plethora of books and websites that list thousands of baby names, along with their supposed "meanings." What I wonder about, however, is what it really means to say that a name "means" something.

A few English "names" are words that serve other purposes in our language. The name "Mark" can also be used as a word meaning "grade" or "signifier." The name "Joy" obviously has a meaning. But English also has a whole class of words that are used only as names -- Jennifer, Jonathan, Amy, Bradley, etc.

Yet books and websites purport to provide the "meanings" for all of these names. According to this website, for example, "Bernard" means "steady."

So, does that mean that there was a time in English when "Bernard" (or some variant or precursor) was actually used in sentences, as in "I hope that ship holds bernard"? How about "Alison," which supposedly means "holy." Was there a time when it would have been appropriate to say, "The priest is a good and alison man"?

I'd like to know. Because it would be very interesting if all the words that we use solely as names were indeed once used as regular words. If that's the case, then I have another question: At what point did English stop naming people exclusively with regular words, and instead create a separate class of words to be used exclusively as names? And why?

Saturday, May 03, 2003

What impressed me most about this Washington Post profile of Bob Graham was this:
In more than three decades in public office -- including two terms as governor and three as senator -- he had earned respect for his honesty and integrity, but had rarely made a national splash. His main claim to fame was his bizarre habit of scribbling the dullest conceivable minutiae of his life -- the chocolate Slim-Fast he drank, the red shorts he changed into, the Jim Carrey video he rewound -- in little notebooks that he color-coded by season. (He even recorded in his notebooks the time he spent recording in his notebooks.)
* * *

Graham was mocked relentlessly as an obsessive-compulsive in 2000 after he showed one to Time magazine, which introduced America to such mundane entries as: "8:45-9:35 -- Kitchen, family room. Eat breakfast, branola cereal with peach." Graham is genuinely puzzled why his notebooks have become a Beltway punch line. He sees them as low-tech Palm Pilots, indispensable for recording constituent concerns and keeping track of his day-to-day doings -- just as his dad used to jot down which fence needed mending and which cow seemed weak. "I could make a better case that this is eccentric," he says, pointing to his Florida tie. Unprompted, he hands over his current notebook, proving if nothing else that the jokes have not persuaded him to adjust his all-the-facts style:

"7:15 -- Awake at 3STTH. [That's his Capitol Hill townhouse.]

"7:15-7:35 -- read 'John Adams' on the importance of an independent judiciary -- dress in dark grey suit

"8:00 -- Kitchen -- eat breakfast (Smart Start cereal and raisins)."
To anyone who doesn't work at a law firm, Graham's ability to track all his activities minute-by-minute may seem anal-retentive, almost to the point of being obsessive-compulsive. But speaking as a law firm lawyer, I can only bow in awe at someone who is able to do that sort of thing spontaneously. (Whether that habit would suit him well in the office of the Presidency is another matter.)
More personal news: My two most recent law review articles will be appearing this fall in the Administrative Law Review and the Federal Communications Law Journal. The first examines the conflict between the Chevron and the Salerno doctrines when a regulation is challenged as inconsistent with a statute; I argue that if Salerno is properly reconceptualized, it becomes the equivalent of Chevron Step One. The second discusses the irrationality of applying two contradictory pricing systems to local phone companies -- wholesale UNE pricing at TELRIC (which is directly tied to cost), and retail rate pricing (which is often inversely related to cost).

Yes, those are the scintillating topics that capture my attention when I'm not working or blogging.

Friday, May 02, 2003

I found out today that I passed the Texas bar exam, which I took in February. I was actually a little nervous about it, because I only took off one week to concentrate on studying, during which I also had to prepare for speaking at a Stanford conference that began two days after the exam. But now I can breathe easier. :)
And then there are the Google searches that simply pique my curiosity:

Gay truck stops Seattle -- Such is my state of ignorance about the world and its affairs that I had not yet imagined that there were such things as gay truck stops. Truck stops I'm familiar with, having driven many thousands of miles on the interstate highway system. But it had not occurred to me that any of them were gay (or straight, for that matter).

The possibility of Nigerians enrolling for a degree -- Well, my blog does not yet offer degrees, despite the fact that (in my humble opinion) a better education can be had from reading this blog than from some of the classes offered by our nation's universities. But if these are the same Nigerians who are responsible for 10% of my spam email, I would be happy to grant them a degree if they provide me with their bank account number. ;)

Thursday, May 01, 2003

Check out this Policy Review piece on the 1) ineffectiveness of drug prevention programs, and the 2) wild resistance towards any empirical assessment of such ineffectiveness. When I think of all the laws that have counterproductive effects (see my previous posts here and here), I'm on the verge of believing that if a politician wants to help any particular cause or group of people, the best way to do it might be to vote against any piece of legislation that is explicitly announced as helping that cause or group of people. This principle wouldn't work in all cases -- some laws do accomplish their intended effects, at least in part -- but it might be just as useful a heuristic as its opposite.
This is a really weird story: Boy 'pregnant' with twin brother. Reminds me of an old X-Files episode.