Addendum to My Post on Kennedy

Below, I quoted from Kennedy's dissent in the Michigan law school case. A professor at Columbia Law School, however, emails to say that Kennedy's own quotation of an unidentified Michigan law professor might be misleading:

I used to teach at U-Mich and was present in a faculty committee meeting with Stillwagon when something like this was said. Since Justice Kennedy doesn't provide a citation for the remark, and since the comment does not appear in Stillwagon's trial testimony, I assume the reference is to some comment in his pre-trial deposition, which I could not find online. [The remark would seem to be hearsay evidence, which may explain why it did not appear in the trial transcript.]

But my recollection from the meeting I attended is that the comment was understood in context as an ironic comment on the difficulty of drawing lines in applying the law school's pre-1990 affirmative action policy, and on Stillwagon's inability to provide a reasoned explanation for why, under that policy as applied by Stillwagon's office, Cubans were not counted as minority students for affirmative action purposes. It's possible that Stillwagon missed the irony, since he was being questioned closely on the policy by faculty members at the time. . . . And it's also possible that something like this was also said on another occasion, with or without ironic intention, when I wasn't present.

Douglass

Tim Sandefur theorizes as to where Justice Thomas came upon the Frederick Douglass quotation with which he began his dissent in Grutter. To wit: Sandefur and John Eastman, a former Thomas clerk, used that very quote in an amicus brief.

Gephardt's Faux Pas

Everyone is talking about what Richard Gephardt said a few days ago: "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day." (Glenn Reynolds has discussed it here, here, here, here, here, and here; Eugene Volokh here, here, here, and here; Andrew Sullivan here; Jack Balkin here; Jeff Cooper here; Phil Carter here; Pejman here.)

So far, all agree that what Gephardt said was exceedingly stupid. Everyone agrees that a President cannot "overcome" the Supreme Court by executive order.

But to play devil's advocate here, I think it might be profitable to recall the thoughts of Presidents Lincoln, Jefferson, and Jackson on the limited extent to which Presidents must obey the Supreme Court:

From Lincoln's speech in Springfield, IL, July 17, 1858:

Now, as to the Dred Scott decision; for upon that he makes his last point at me. He boldly takes ground in favor of that decision.

This is one-half the onslaught, and one-third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott’s master, and against Dred Scott and his family, I do not propose to disturb or resist the decision.

I never have proposed to do any such thing. I think that in respect for judicial authority my humble history would not suffer in comparison with that of Judge Douglas. He would have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the Government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.

One might also recall Lincoln's Emancipation Proclamation, which is not entirely consistent with an attitude of complete deference to the Court's Dred Scott decision.

Then there's this, from Jefferson's letter to Mrs. John Adams in 1813:

You seem to think it devolved on the judges to decide on the validity of the Sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.

And finally, this from Andrew Jackson's veto of a bill establishing a national bank, July 10, 1832:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled.* * *

The opinion of the Judges has no more authority over Congress then the opinion of Congress has over the Judges, and on that point the President is independent of both. The authority of the Supreme Court must not therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Now one can raise quibbles about whether Gephardt's promise could realistically have been carried out, had the Court come down strongly against affirmative action in the university context. It is difficult to imagine how a presidential executive order could skirt that ruling and mandate the continued use of affirmative action by state universities. But even if the ruling had gone in that direction, the President could resist by continuing the use of affirmative action in federal contracting, for example. And such an action would seem to be consistent with the words of many Presidents who have claimed the authority to resist, undermine, and limit the impact of a Supreme Court decision with which they disagreed. (The merit of any particular decision to resist is another matter; my only point is that distinguished Presidents have, albeit in more eloquent and thoughtful phrases, expressed a thought similar to Gephardt's.)

Gephardt

Don't miss Scrappleface's take on Gephardt.

More on the Fake BestBuy Hoax

On Thursday, I warned of a new scam email that pretends to be a notification from BestBuy about potential fraudulent use of your credit card. It pretends to link to a BestBuy fraud page, where you are supposed to enter your credit card info.

Here's a report from another blogger who got the identical email, and was able to get the fake BestBuy link to work. Here's an image of where the link lead. Perfectly done up to look like an actual BestBuy fraud reporting page, but in actuality, he says, the URL was http://www.your-instant-credit-reporter.org/fraud.html.

And now, when you go to BestBuy.com -- the real deal -- they have a pop-up warning of an "email hoax" that they themselves only discovered on Wednesday.

Alienation of Affection

The Supreme Court of Missouri just issued a decision abolishing the tort known as "alienation" of affection, which formerly allowed a wife to sue the woman who committed adultery with her husband. (Men could sue as well, of course; I just couldn't figure out an elegant way to phrase the previous sentence so as to be gender-neutral.)

I'm not convinced by the court's reasoning, although there might be other good reasons to abolish that particular tort. Here are the court's main arguments:

In order to ensure pure bloodlines and discourage adultery, the early Germanic tribes provided that men were entitled to payment from the wife's lover so that the husband could purchase a new spouse. Hoye v. Hoye , 824 S.W.2d 422, 423-424 (Ky. 1992); Bruce V. Nguyen, Note, Hey, That's My Wife! - The Tort of Alienation of Affection in Missouri , 68 M O. L . R EV . 241, 243, 244 (2003). As successors to the Germanic tradition, the Anglo-Saxons also provided a cause of action for men to recover for another's interference with the marital relationship. The basis for this cause of action was that wives were viewed as valuable servants to their husband. Id .
* * *
Beginning with New York in 1864, almost every state in this country eventually established a cause of action for alienation of affection in which men, but not women, could vindicate their rights in the marital relationship. Prosser and Keeton, supra, at 918. In the late nineteenth and early twentieth centuries, most states, including Missouri, acted to equalize the legal status of wives by allowing them to sue in their own names. Therefore, the original justification for the tort, that husbands had a property right in their wives, was undermined. Hoye, 824 S.W.2d at 424. Nonetheless, the tort persisted, but with a new rationale. Modern courts came to justify suits for alienation of affection as a means of preserving marriage and the family.
* * *
The original justification for the tort of alienation of affection lies in the antiquated concept that husbands had a proprietary interest in the person and services of their wives. Although modern courts no longer justify the tort of alienation of affection in these terms, the tort has remained fundamentally unchanged since its establishment in Missouri. The elements are the same. The defenses are the same. Because there has been no structural change to alienation of affection claims since its inception, the tort remains grounded in the property concepts that originally justified it. Hoye, 824 S.W.2d at 425, quoting, H. Clark, THE LAW OF DOMESTIC R ELATIONS IN THE UNITED STATES, SECTION 4.2, P. 267 (1987).

This idea "is perhaps better suited to an era that regarded one spouse as the property of another." Hoye, 824 S.W.2d at 425, quoting Prosser and Keeton, supra, at 917. It has no place in modern jurisprudence.

I don't follow this reasoning at all. Yes, in past centuries the tort of alienation of affection was supported by the idea that the husband owned his wife. Yes, we no longer agree with that concept of marriage. But, as the court itself admits, that justification was abandoned at least a hundred years ago, when states started allowing women to sue as well. Why must a tort be abolished now because of what people thought hundreds of years ago? Where does the court get this bizarre notion that the "wife as property" justification, even though abolished many decades ago, is still somehow lurking somewhere behind this particular tort?

Here's the court's second reason:

Even though the original property concepts remain inextricably bound to the tort, some still argue that suits for alienation of affection must be retained as a useful means of preserving marriages and protecting families. See, Norton, 818 p.2d at 12 (Utah 1991); Thomas v. Siddiqui,, 869 S.W.2d at 743 (Mo. banc 1994) (Robertson, J., dissenting). While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. Thomas v. Siddiqui, 869 S.W.2d at 742 (Price, J., concurring). To the contrary, the opposite is likely true. Funderman v. Mickelson , 304 N.W.2d 790, 791 (Iowa 1981); Nguyen, supra, at 253.

First, suits for alienation of affection are almost exclusively brought after the marriage is either legally dissolved or irretrievably broken. Revenge, not reconciliation, is the often the primary motive. O'Neil v. Schuckardt , 733 P.2d 693, 697-698 (Idaho 1986); 54 A M. J UR. P ROOF OF F ACTS 3D Proof of Alienation of Affections , section 6 (1999).
Second, by filing suit, the plaintiff is publicly acknowledging the intimate details that led to the breakdown of the marriage. The necessarily adversarial positions taken in litigation over intensely personal and private matters does not serve as a useful means of preserving the marriage.

This makes even less sense. The court focuses myopically on the fact that, viewed from the ex post perspective, a tort lawsuit won't reconcile the parties. But the court completely ignores the fact that, from the ex ante perspective, the threat of a tort lawsuit might have some deterrent effect. Deterrence is one of the classic justifications for tort law, after all. It might not deter perfectly, but no tort cause of action deters perfectly. (The court says, "Revenge, not reconciliation, is often the primary motive," but so what? Any tort action might be brought, at least in part, for purposes of revenge.)

The same reasons would lead one to abolish the tort of interference with contractual relations, where one business sues another for interfering with an existing contractual relationship. You could say all the same things: Suing won't reconcile the original parties to the business contract, and such a lawsuit might be brought in a spirit of revenge. Yet our legal system thinks that existing business contracts are worthy of at least some minimal protection, and that we should deter people from trying to induce other people to breach a contract. Why not give marriage that same baseline protection? Why not give jilted wives the same legal remedy that corporations have?

The court also says that exposing intimate details of the marriage won't serve the purpose of reconciliation -- which, again, might be true, but from the ex ante perspective, the threat that intimate details might be revealed might be enough to deter the would-be adulterer. Plus, this rationale would likewise justify the abolition of the tort for interference with contract (after all, such lawsuits might lead to the discovery of a business's trade secrets, etc.)

The court's third reason was that it had previously abolished a closely-related tort called "criminal conversation," and that it should abolish alienation of affection in order to be "consistent." Maybe so, but if the abolition of "criminal conversation" was in error, consistency is not a sufficient reason to compound the error.


I'm not saying that alienation of affection lawsuits are necessarily a good idea, and there might be good reasons to abolish that particular tort. But if abolition is the chosen course of action, the court should at least have a good explanation. Most importantly, the court should explain why interference with a marriage contract should be wholly without legal remedy, while interference with a business contract can be the basis for a lawsuit.

Turin

Could bacteria have caused the image on the Shroud of Turin? One researcher thinks so.

RICO vs. the Catholic Church

Respected scholar of law and religion Marci Hamilton argues in this Findlaw essay that the Bush administration should bring a RICO prosecution against the Catholic Church for the various scandals of which you are all aware.

Kinsley

I'm not a huge fan of Michael Kinsley's brand of sophistry, but I couldn't help smiling over these paragraphs in his latest column:

As someone who manufactures opinions for a living, it is my job to be sure. And my standards for the ingredients of an opinion are necessarily low. There may be a few ancient pundits such as George Will who still follow the traditional guild practices: days in the library making notes on index cards, a half-dozen lunches at the club with key sources, an hour spent alone in silence with a martini and one's thoughts -- and only then does a perfectly modulated opinion take its lovely shape. Most of us have no time for that anymore. It's a quick surf around the 'Net, a flip of the coin and out pops an opinion, ready to go except perhaps for a bit of extra last-minute coarsening.

Still, even the most modern major generalist among the professional commentariat likes to have a little something in the way of knowledge as he or she scatters opinions like bird seed. The general public, or at least the part of it that deals with pollsters, is not so cowardly. Most people, it seems, will happily state a belief on a question of fact that nobody knows the answer to, then just as happily do a double back flip from that shaky platform into a pool of opinions about which they are "sure."

Be Warned

There's a new spam scam. Well, maybe it's not new. But it's new to me. I just got the following email:

Date: Wed, 18 Jun 2003 18:57:46 -0400 (EST)
From: "Vanni Goldarina"
Subject: BestBuy Order #1095619. Fraud Alert.

Dear customer,

Recently we have received an order made by using your personal credit card information.

This order was made online at our official BestBuy website on 06/17/2003.
Our Fraud Department has some suspicions regarding this order and we need you to visit a special Fraud Department page at our web store where you can confirm or decline this transaction by providing us with the correct information.
This e-mail address has been taken from National Credit Bureau.

Click the link below to visit a special Fraud Department page to resolve the cause of the problem.
http://www.BestBuy.com/fraud_department.html

====================
ORDER# 1095619 - STATUS: SUSPENDED

ITEMS PURCHASED
===================
Item No: 73890
CDA-9815 In-Dash CD Player/Ai-Changer Controller
Price: $387.65 Qty: 2 Total: $775.3
----------------------------------------------------------------------------------------------------
The order listed above has not yet been processed.
The reason for the delay in processing your order is:

- UNVERIFIED SHIPPING ADDRESS

- Information provided:
Shipping
41 WINHAM ST
Staten Island, NY 10306
United States
phone# 206-337-9843

In our effort to deter fraudulent transactions, we need your help in providing us with the correct information. Your prompt response is needed to avoid any unauthorized charges to your credit card.

At first glance, I was nervous. The email actually had a link to BestBuy.com's fraud department. Or so it seemed. But when I clicked on the link, it didn't work. When I cut-and-pasted the link into another browser, it still didn't work. Then I noticed that when I moved the mouse over the link, the URL that showed up at the bottom of the browser didn't go to BestBuy.com at all; rather, it went to some site at www.digitalgamma.com. So I tried typing in that URL directly, and the website was down. But I'll bet anything that if it had been up and running, it would have been a webpage that was made up to look like an official BestBuy fraud reporting page. Pretty tricky.

Of course, there were several other big clues: 1) the fact that the email was coming from a Yahoo account in the UK; 2) the fact that I was being contacted by email at all rather than by phone; and 3) the fact that I was being asked for my credit card information by someone who supposedly already had that information. And I did notice all these things. But the faked URL threw me off -- until I figured out that they had somehow faked a link to BestBuy.com, I kept thinking, "Why would a spammer link to an actual BestBuy fraud reporting website?"

Which is why I could imagine someone falling for a scam like this. Be warned.

Review of Network Economics

It being June, there is a brand new issue of the Review of Network Economics available on the web. Be sure to check it out. Here's the editors' introduction to the current issue:

In the current issue of the Review of Network Economics, we have eight papers on the topic of the economics of payment networks. Interest in the economics of payment networks has burgeoned over the last few years, in part reflecting the tremendous growth of electronic payment networks, in part reflecting growing policy interest in the workings of these networks, and in part reflecting the development of a general economic framework to study these networks. Several of the authors in this issue have been major contributors to the development of this recent literature.

The first three papers, by Sujit Chakravorti (Federal Reserve Bank of Chicago), Jean-Charles Rochet and Jean Tirole (Toulouse University), and Bob Hunt (Federal Reserve Bank of Philadelphia) provide general perspectives on the policy issues that have arisen in relation to the payment cards offered by the bank associations MasterCard and Visa. These papers also provide an overview of the recent academic literature which speaks to these issues. One important area all three papers deal with is that of interchange fees, the fee paid between different card association members, that has come under fire from policy makers in a number of jurisdictions.

The fourth and fifth papers, by Jean-Charles Rochet, and Joshua Gans and Stephen King (Melbourne University), provide a more in-depth analysis of interchange fees. Rochet's paper surveys the recent academic literature on interchange fees, providing a unified treatment of many of the existing models. While Rochet's focus is on potential difference between the socially and privately optimal level of the interchange fee, Gans and King's focus is on evaluating different methodologies that have been proposed for regulating interchange fees (particularly in the Australian context).

The literature on payment cards emphasises the two-sided nature of payment cards (and the interrelated demand of cardholders and merchants). This is in contrast to ATM cards, which are services offered just to cardholders. Despite this simplification, the use of ATM cards involves a number of interesting and complicated network issues, which are surveyed in the sixth paper, by James McAndrews (Federal Reserve Bank of New York). McAndrews also provides an up-to-date survey of the associated literature that has developed over the last decade. In contrast to the literature on general payment cards, some of this research (including his own) is empirical in nature.

The last two papers have a strong empirical focus. David Humphrey (Florida State University), Magnus Willesson, Ted Lindblom and Goran Bergendahl (University of Gothenburg) provide a survey of the limited data that exists concerning the cost of making and receiving a payment by banks, retailers, and other parties to a transaction. They consider estimates of the relative cost of making a paper-based transaction versus an electronic payment. Fumiko Hayashi (Federal Reserve Bank of Kansas City) and Elizabeth Klee (Board of Governors of the Federal Reserve System) estimate consumers' payment instrument use at the point of sale and for bill payment. Using a unique data set, they study non-financial determinants of payment choice, such as consumers' preference for using electronic services, and the characteristics of the payment transaction (the value and purpose of the transaction).

We hope these papers prove helpful in assessing the state of the literature on the economics of payment network. We also hope the papers stimulate further interest in this area, and that the many important research questions posed by the authors will be addressed in the years to come.

Co-editors: John Panzar and Julian Wright

If you had to pick one paper to read, go for An Economic Analysis of the Determination of Interchange Fees in Payment Card Systems, by Rochet and Tirole (who is one of the leading scholars of industrial organization).

Buck's First Law of Human Nature

No matter how odd or bizarre or pointless an activity might be, one can always find some group of human beings who are passionately devoted to it.

Example: This Dallas Morning News story on "phooning."

Subtle forms of discrimination

In a side-bar article on Stuart Taylor's discussion of possible Supreme Court vacancies, Taylor lists the strengths and weaknesses of the likely nominees. Among Michael Luttig's weaknesses, Taylor notes:

With a round, boyish face that makes him look younger than he is, Luttig fits the chief-justice image less well than does Wilkinson.

Surely Taylor would never have said that one of the weaknesses of Larry Thompson, another possible nominee, was his "brown skin and tight, curly hair that fits the chief-justice image less well than Wilkinson" or that Edith Jones' lipstick and mascara places her below the standard.

Taylor would never say that about Thompson or Jones because he would instantly recognize the discrimination inherent in the view that the proper image of a chief justice is a tall, handsome white male were he discussing a black or a woman. The sentence would have been filtered before it hit the keyboard. But Taylor's filters were apparently disengaged when writing about Luttig, presumably because no race or gender issues triggered cautious thinking about the proper image of the chief justice.

This principle behind both situations is that how a person looks should not have any bearing on their ability to serve as a chief justice, no matter the manner by which the person diverges from the image of previous chief justices. Whether the person is black, Asian, female, or the owner of a round, boyish face, it shouldn't matter.

In none of this do I mean to criticize Taylor; I have more respect for his impartial and non-doctrinaire writing than any other figure in journalism. We all struggle to overcome the tendency to think someone's natural appearance reveals something about the person; even level-headed thinkers like Taylor and his editors.

UPDATE: Stuart Taylor sent me this response:

Dear Matt,

Fair comment, fairly presented. But I will say this in defense of my characterization: Luttig's boyish physicial appearance is POLITICALLY relevant just as Gonzales's and Thompson's and Garza's ethnicities are politicially relevant; indeed, I pointed out that each of those three are widely considered to be candidates in part because of their race.

It might not have occurred to me if I had relied solely on my own instincts that Luttig's boyish physical appearance might be a political handicap (although not necessarily an insuperable one) were he nominated to become Chief Justice. But at least two of the people I interviewed--including a veteran of confirmation battles past who is very much in the Luttig camp--volunteered without my asking that Wilkinson would be a more politically viable nominee for Chief Justice because he looks the part more than Luttig does. Their judgment was that for this reason, other things being equal, Wilkinson might well do better in the polls after televised hearings as a CJ nominee than Luttig would.

Sincerely, Stuart Taylor

He's right, of course, a person's appearance affects their political viability. But with all respect to Taylor, this was the point of my post. Stereotypes play a role in politics, and generally when they rear their head Taylor and his editors would be careful not to perpetuate them by treating them as facts. In this case the stereotype was presented in the author's voice without qualifiers, something National Journal's editors would not have allowed had the subject of the sentence been a black or female prospective nominee.

It would be better if people of Taylor's stature challenge the stereotype rather than reinforce it. At least that's how those of us with faces of a particular shape and description feel. : )

Most Famous Person of the 20th Century

Ok, here's a parlor game you can play the next time all of the stations on your car radio are playing commercials and NPR is airing Wait, Wait, Don't Tell Me.

The game is to answer the question, Who will be the best known person of the 20th century in 5000 years? It's somewhat like asking who will win the Super Bowl in 2050, but better. The famous person question relies on principles that are probably pretty constant over time. The principles that make someone famous today probably made them famous 5000 years ago and will do so 5000 years from now. The object of the game is to figure out what those principles are and, to answer this particular question, who will benefit from them most.

Today the most famous person from the 20th century is probably Hitler, Pele, Michael Jordan or Muhammad Ali. Their name recognition is above 90% around the globe. But in the year 7003 no more than a fraction of a percentile will know who these athletes were, and there will probably be many more horrific and brutal people to dilute Hitler's infamy. (I'm not confident we'll be able to keep powerful weapons out of the hands of evil men forever -- especially not for 5000 years. The man responsible for leveling London will be famous for a long, long time.) Hitler's fame also rests largely on the fact that he's not truly history yet -- so many people now living witnessed him and his horrors. That living link gives him salience that will erode over the next thousand years. And as soon as there's a more resonant placeholder for the proposition that evil really does exist in the world, Hitler's role in the popular imagination will wither away.

It's possible that the winner is a sleeper -- someone who's scarcely above the noise now. The fame of Muhammad and Van Gogh has grown exponentially over time. Who knows, maybe Glenn Reynolds's star is just rising.

My best answer for the question is a person who today might be known by 50% of the world. Maybe a lot more or a lot less. I'm sure he's not known by 98%, like Muhammad Ali supposedly is, but he's not a dark horse, either. But in 5000 years I suspect he'll still be known by a significant number of people, and he'll certainly be better known than Einstein, Churchill, FDR, Pope John Paul II or any living athlete or entertainer.

I'll give my answer in the Shout Outs, as soon as they're working. In the mean time, think of someone with staying power.

Souter opinions

Writing of the Supreme Court's decision released today in FEC v. Beaumont, Mickey Kaus says:

One doubt: Is all the gratuitous pro-reform verbiage in the opinion significant, or did Souter's clerk just churn out a lot of copy?

Rick Hasen's instant analysis expresses a similar thought:

The opinion extols the virtues of longstanding limits that Congress has placed on corporations and unions. It gives a completely unnecessary "historical prologue" (slip. op. at 8) explaining the unique purposes that corporate/labor union separate funds requirement serves. This discussion supports Congress's need to regulate the rise in "issue ads."

But it's hardly unusual for Souter to include a "completely unnecessary 'historical prologue'" in his opinions. It seems to be rather common.

Who could forget the opening paragraph of Souter's majority opinion in the 1995 case of Hurley v. Irish-American Gay Group of Boston. The question was whether the organizers of the St. Patrick's Day parade in Boston had a First Amendment right to exclude a pro-gay group from marching. Souter began the opinion by recounting 250 years of the history of holiday celebrations in Boston, including a citation to a book published in 1902 detailing the history of St. Patrick's Day celebrations between the years 1737 and 1845:

March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's command. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the colonial lines on evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration in New York and other American Places, 1737-1845, pp. 15, 19 (1902); see generally 1 H.S. Commager & R. Morris, The Spirit of 'Seventy Six 138-183 (1958); The American Book of Days 262-265 (J. Hatch ed., 3d ed. 1978). Although the General Court of Massachusetts did not officially designate March 17 as Evacuation Day until 1938, see Mass. Gen. Laws 6:12K (1992), the City Council of Boston had previously sponsored public celebrations of Evacuation Day, including notable commemorations on the centennial in 1876, and on the 125th anniversary in 1901, with its parade, salute, concert, and fireworks display.

An even more outstanding example is the opening section of Souter's majority opinion last year in Verizon Communications, Inc. v. FCC, where the question was whether the FCC had come up with an appropriate economic methodology for calculating the lease rates that local phone companies have to use when renting their equipment and lines to their competitors.

Most Justices would have begun by looking at the governing statute, the 1996 Telecommunications Act. But not Justice Souter. Instead, pages 4 to 17 of the slip opinion were devoted to an exhaustive and excruciatingly detailed history of rate regulation in the United States. All of this historical background, though, was irrelevant to the actual case at hand. As Souter himself said in the conclusion of that section, "Congress called for ratemaking different from any historical practice" when it passed the 1996 Act.

If you read the tea leaves carefully in that opinion, it appears that a couple of other Justices were not too happy with Souter's historical excursion. Thomas, for example, joined in Sections III and IV of Souter's opinion -- which happened to be the entirety of Souter's legal analysis and holdings. In other words, the sections that Thomas refused to join were Section I (procedural history of the case) and Section II (historical background). I've never before seen a Supreme Court opinion where a Justice joined in the legal analysis and the holding, but refused to join the facts section. (Justice Scalia similarly refused to join Sections I and II, although he didn't entirely agree with Souter's reasoning in a later section of the opinion.)

Stuart Taylor on Supreme Court Nominations

Stuart Taylor writes an exhaustive piece on looming Supreme Court vacancies. While much of the story is familiar terrain to those who've been following the court, his summary and speculations on different scenarios and strategies is comprehensive.

Another HLS Overachiever

This guy is one of my classmates from Harvard Law:

Young Army lawyer helping Iraq rebuild its judicial system

TIKRIT, Iraq – No one ever said the practice of law is easy.

Mike D'Annunzio wears body armor to work. He carries an automatic rifle for protection. And, three years out of law school, he oversees the judicial system in a significant portion of Iraq.

Despite the many complications to be overcome in postwar, post-Saddam Iraq, getting the courts up and running is seen as a critical step toward creating a more benign and democratic society. Capt. D'Annunzio, the staff judge advocate for the 4th Infantry Division's 1st Brigade, spearheads that effort in Salah ad-Din Province.

The Harvard-educated wunderkind, who skipped high school and earned his law degree by age 21, didn't expect to take on such a prominent role in restoring justice to Iraq, specifically in a province that was once Saddam Hussein's power base.

Capt. D'Annunzio admits there's a steep learning curve, given that Iraqi criminal and civil procedure weren't an integral part of his legal education. As an Army lawyer, he was much more familiar with the intricacies of the Uniform Code of Military Justice. But he's not disappointed at the direction his military career has taken.

"It's been a great experience so far," said Capt. D'Annunzio, 24, of Gig Harbor, Wash. "What attracted me to the job in the first place was, frankly, the corporate jobs in the skyscrapers downtown seemed awfully boring. Now, sometimes, I sit here in the dirt wearing my flak vest, drinking lukewarm bottled water, and eating MREs [Meals Ready to Eat] and think to myself, 'Gee, that job in the skyscraper downtown looks pretty good right now.'

"But the fact is, I'm sitting here as a 24-year-old attorney, three years out of law school, and I've just basically put back into operation the justice system for an entire province of a country – and that's an experience not many people of my age and training and experience get to have."
* * *

I'll say.

A Good Cause

If you have any extra cash floating around, the Grameen Foundation looks like it might be a good cause. Here's an excerpt from a Dallas Morning News article describing their work:

It is the simple things in life – planting a peach tree or sowing potatoes – that are helping some indigenous women in Chiapas pull their families out of poverty.

About 3,000 women are participating in a micro-lending program, Al Sol, in Mexico's southernmost and poorest state. A group of Dallas women are helping them do it by raising the nearly $790,000 needed for the agency, based in San Cristóbal de las Casas, to expand and become self-sufficient.

The Chiapas Project is a campaign of the Grameen Foundation USA, based in Washington, D.C., which works in partnership with the pioneering Grameen Bank. The bank fights poverty all over the world through small loans to the poor.

Dallas businesswoman Lucy Billingsley said she was moved to join the Chiapas Project because she wanted to find a way to help other women in "a personal and significant way."
* * *

The Economics of Coupons

I once asked a law professor friend of mine (he had also done a PhD in economics at MIT) why sellers of food products use coupons? Why not just put their items on sale and avoid the cost of reimbursing the grocers for the hassle of dealing with coupons, not to mention the hassle of dealing with coupons themselves?

His answer: Price discrimination. Food manufacturers want to be able to sell to different types of consumers at different prices. I.e., rather than sell merely 100 units of an item at $2.50 apiece to the customers willing to pay $2.50, they'd prefer to sell the 100 at that price and then somehow sell an extra 50 units at $2.00 apiece to the customers who don't want to pay $2.50.

Using coupons is a good way to do that, because the only customers who use coupons are those who find it worth their time to rummage through the Sunday paper and cut out coupons and keep track of them. But if the sellers put the items on sale, it wouldn't be price discrimination, because all customers would get the same sale price.

So that makes some sense. But I forgot to ask a further question that is a bit more puzzling. Why do some food manufacturers pay to have a little red plastic machine set up right beside their product for the purpose of distributing coupons there in the store? This can't possibly work as well to create price discrimination, because the seller has drastically lowered the cost to the customer of using the coupon, such that all customers would be more likely to use it. And if that's the case, why not just put the item on sale and avoid the hassle of dealing with coupons?

Books

Via Virginia Postrel, I see that Brink Lindsey has put up a post listing all the books he's read in the past 12 months. Interesting idea. Here's a partial list of the books I've read in the past year, in alphabetical order by author's last name. (It's a partial list because I know for sure that I've read library books during the past year but can't remember all of them offhand):

Hadley Arkes, First Things

Hadley Arkes, Natural Rights and the Right to Choose

Hadley Arkes, Beyond the Constitution

Hadley Arkes, The Return of George Sutherland

William Buckley, Overdrive

Martin E. Cave, Sumit K. Majumdar, and Ingo Vogelsang, editors, Handbook of Telecommunications Economics, Vol. 1

Ronald Coase, Essays on Economics and Economists

Ronald Coase, The Firm, the Market, and the Law

Ann Coulter, Slander

Joseph Epstein, Snobbery

Farid Gasmi, D. Mark Kennet, Jean-Jacques Laffont & William W. Sharkey, Cost Proxy Models and Telecommunications Policy: A New Empirical Approach to Regulation

Harry Jaffa, A New Birth of Freedom

Gina Kolata, Ultimate Fitness: The Quest for Truth About Exercise and Health

Larry Lessig, The Future of Ideas

Brink Lindsey, Against the Dead Hand: The Uncertain Struggle for Global Capitalism

Bridger Mitchell and Ingo Vogelsang, Telecommunications Pricing

Jennifer Roback Morse, Love and Economics: Why the Laissez-Faire Family Doesn't Work

Laurie Mylroie, The War Against America: Saddam Hussein and the World Trade Center Attacks

Richard John Neuhaus, As I Lay Dying

Richard John Neuhaus, ed., The End of Democracy

Richard John Neuhaus, The Best of The Public Square

Michael Novak, The Catholic Ethic and the Spirit of Capitalism

Richard A. Posner, Natural Monopoly and Its Regulation

Roger Scruton, The West and the Rest: Globalization and the Terrorist Threat

Jean Tirole and Jean-Jacques Laffont, Competition in Telecommunications

Gerald Wegemer, Thomas More: A Portrait of Courage

In compiling this list, I also noticed that there are way too many books that I've started reading and have yet to finish, for one reason or another. I didn't realize there were so many in this category until I started scouring the house for partially-finished books. I think what's happened is that, since having children, my time for reading is often limited to about 15 minutes before going to bed at night. This means that it takes a couple of weeks to finish a book that I previously could have polished off in an afternoon. And when I've been reading the same book for an entire week, I have an instinctual urge to move on to something else. Thus, lots of unfinished books. Here they are:

G.E.M. Anscombe, Intention

Anselm of Canterbury, The Major Works

Jean Baudrillard, Simulacra and Simulation

Robert George, In Defense of Natural Law

Robert George, A Clash of Orthodoxies

Thomas Howard, On Being Catholic

David Lowenthal, Present Dangers: Rediscovering the First Amendment

John McWhorter, The Power of Babel

Anne Roche Muggeridge, The Desolate City: Revolution in the Catholic Church

Richard John Neuhaus, Death on a Friday Afternoon

Richard John Neuhaus, The Catholic Moment: The Paradox of the Church in the Postmodern World

Josef Pieper, The Four Cardinal Virtues

Michael Polanyi, Personal Knowledge

Andre Previn, No Minor Chords: My Days in Hollywood

J.R.R. Tolkien, The Return of the King [I've read this several times before, but am in the middle of re-reading with my wife.]

Oliver E. Williamson & Sidney G. Winter eds., The Nature of the Firm: Origins, Evolution, and Development

Finally, there are quite a few books that I've bought recently but haven't started reading at all. Here they are:

Marcus Aurelius, Meditations

Dino Bigongiari ed., The Political Ideas of St. Thomas Aquinas

Jeremiah Curtin, Myths and Folklore of Ireland

Will Durant, Caesar and Christ: The Story of Civilization

Charles Freeman, The Greek Achievement: The Foundation of the Western World

Thomas L. Friedman, The Lexus and the Olive Tree

Miriam Joseph, The Trivium: The Liberal Arts of Logic, Grammar, and Rhetoric

Saul Kripke, Wittgenstein on Rules and Private Language

Paul Lendvai, The Hungarians: A Thousand Years of Victory in Defeat

Guillaume de Lorris & Jean de Meun, The Romance of the Rose

William Morris, The Well at the World's End

William Morris, The Water of the Wondrous Isles

William Morris, The Wood Beyond the World

John Peddie, Hannibal's War

Oliver Williamson, The Mechanisms of Governance

Brendan Wilson, Wittgenstein's Philosophical Investigations: A Guide

An Interesting Find

Skeleton holds key to Holy Roman cathedral

The discovery of a dusty skeleton has revealed one of the most important churches in mediaeval history: a cathedral built by the Holy Roman Emperor Otto the Great in the 10th century.

"This is one of the biggest finds in recent years in the history of mediaeval archaeology," said Dr Babette Ludowici, an archaeologist at the Centre of East Central European History and Culture in Magdeburg. * * *

The New Look

When I checked out Howard Bashman's site today, as I do several times a day, I noticed that he had a spiffy new look. So I thought I should get with it and get a new template as well. Only problem so far is I can't figure out how to get the comments to work with this one. Other than that, I like it.

More on Doe v. Unocal

I've now read the brief filed by plaintiffs in the Doe v. Unocal case in response to DOJ's amicus brief. It can be found here; MS Word file; link via a commenter here.)

I'm still leaning in favor of DOJ's interpretation of the Alien Tort Claims Act, but if I had to make a final decision, I would need to read 1) all other briefs filed in the case; 2) all the relevant precedents; and 3) every major law review article ever written on the topic. And as I'm not a judicial clerk with the responsibility for advising a judge on this case, I'm not going to undertake that level of preparation.

Thus, you should still take whatever I say with a grain of salt. That said, since I analyzed DOJ's amicus brief, I thought I should probably do the same for the plaintiffs' brief here:

• Argument 1: The Justice Department has no special expertise in the interpretation of the ATCA. Plaintiffs' Br. at 5-6.
  
  Comment. True. But DOJ wasn't asking for Chevron deference here.
  
  
• Argument 2: DOJ's position is at odds with the "plain language and history of the ATCA." In 1795, the Attorney General opined that foreigners could sue Americans under the ATCA for aiding a foreign military. And in another 1795 case, a court upheld a claim based on a treaty. In fact, the Framers regarded international law as part of the common law.
  
  Moreover, DOJ's interpretation would have made the ATCA meaningless when it was enacted, because Congress never passed any special implementing legislation. Plaintiff's Br. at 6-16.
  
  Comment: These are the strongest arguments that the Plaintiff has. While the ATCA is unquestionably jurisdictional in function, it clearly contemplates that aliens will be able to file tort lawsuits based on the "law of nations" and/or treaties. The real questions, then, are 1) what counts as the "law of nations"; 2) how does a court determine the content of such law; 3) does the "law of nations" have to provide a cause of action or not; 4) if not, how can the law here be consistent with the law on causes of action everywhere else; and 5) if no specific cause of action is necessary, what is the limiting principle by which courts will prevent anyone from suing for anything.
  
  
• Argument 3: DOJ is in error when it argues that the ATCA allows suits only where there is a self-executing treaty ratified by Congress. The plain text of the ATCA allows suits where there was a violation of the "law of nations" or a "treaty." These are two different things. Plaintiffs have a right to file suits based on international "customary norms."
  
  Comment: I agree with the argument that the "law of nations" text has to mean something. But the references to "customary norms" seem awfully vague and manipulable, which makes me nervous. I'd have to know a lot more information than the plaintiffs provide before I would agree that anyone can bring a lawsuit based on something as tenuous as a "customary norm."
  
  Also in this section of the brief, the plaintiffs complain that DOJ is "asking this Court to alter twenty-three years of consistent jurisprudence under the ATCA . . . ." This may be so, but the very reference to 23 years catches my eye, and not in a good way. The ATCA has existed since 1789. If the plaintiffs' interpretation has held sway for a mere 23 years out of 214, that is one indicator that it might be off-base.
  
  
• Argument 4: DOJ errs in claiming that the ATCA applies only to torts committed in United States territory. The text has no such limitation. Plaintiffs' Br. at 24-29.
  
  Comment: This argument may be right.
  
  
• Argument 5: Taking a broad view of adjudication under the ATCA won't interfere with the USA's foreign policy agenda. Judges can decide on the risk of interference on a case-by-case basis. Plaintiffs' Br. at 29-31.
  
  Comment: While it may be correct that ATCA suits won't automatically interfere with foreign policy, I'm not nearly so sanguine about plaintiffs' interpretation on this front. As DOJ's brief observed, many people might try to use the ATCA -- and have already done so -- to file lawsuits over the handling of the "war on terror."

In sum, while I still lean towards DOJ's position, I'm less convinced than I was before. It seems plain that the ATCA does allow suits based on the "law of nations," but even after reading both briefs I have no idea what that term really means and where one would go to find causes of action in the "law of nations."

Law Review Business

Via Lawrence Solum, I see that Stuart Benjamin of Duke Law School (formerly at Texas) has posted a 72-page article (PDF) that is forthcoming in the New York University Law Review this fall. It's called Spectrum Abundance and the Choice Between Private and Public Control. The article is in substantial part aimed at refuting a law review article of mine, as well as other articles that argue for greater use of a spectrum commons.

I'm glad to have the opportunity to see this piece; Stuart Benjamin told me a few months ago that he was working on it and hoped to have my comments. And it's exciting news: I've never been attacked in a law review article before. (I'm not being sarcastic in the least. While supportive citations are always welcome, it's still flattering that a prominent telecommunications scholar thought my piece worthy of response. It's far preferable to what seems to be the fate of many law review articles, i.e., complete oblivion.)

Doe v. Unocal

I've been seeing a lot of complaints about the fact that the DOJ filed an amicus brief in a 9th Circuit case arguing for a more limited interpretation of the Alien Tort Claims Act. The lawsuit involves claims that Unocal was complicit in forced labor and other abuses committed by the Burmese military during the construction of the Yadana gas pipeline.

Given that DOJ is arguing that Unocal can't be held liable under the Alien Tort Claims Act, the complaints from the left have been predictable. Human Rights Watch says that this is a "craven attempt to protect human rights abusers at the expense of victims." Joe Katzman says that it is equivalent to "shilling for Saddam's regiume [sic] because he had favourable oil contracts with your state oil company." Jeanne D'Arc announced that "[t]his is the time to stand up for human rights, not corporate rights." And Joe Conason, astute as ever, says that "[i]deologues like Ashcroft are so disdainful of international law -- and so solicitous of corporate privilege -- that they find themselves excusing the most hideous misbehavior abroad."

But I have a visceral trust for the sort of "legal analysis" that consists merely of 1) deciding ahead of time which side you like better, 2) claiming that your preferred side should automatically win regardless of what the law actually says (this is "prejudice" in the most literal sense) and 3) claiming that anyone with a different view of what the law says must be an evil person because they didn't like your preferred outcome. You'd think the left would be more attuned to the vacuousness of this sort of argumentation; think of how many left-wing defense lawyers have been accused of supporting criminals when they got someone off "on a technicality" [i.e., by persuading the judge to follow the letter of the law].

So given that none of the above web commentators seem to have read DOJ's brief, I thought I'd look it up. It took quite a bit of digging on Google, but I finally found a link to it here.

Now, I should preface what I'm about to say with the disclaimer that I haven't found the other side's brief. And if there's one thing you learn from clerking, it's that it can be dangerous to opine on a lawsuit without reading what both sides have to say. So take what I have to say with a grain of salt. (And, by the way, consider whether the commenters mentioned above have been as forthcoming about the limitations of their own knowledge as to the legal arguments involved.)

I would divide DOJ's brief into four main arguments:

• Argument 1: The Alien Tort Claims Act, enacted in 1789, is a jurisdictional statute. It reads as follows: "[T]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." What this does is give federal district courts the authority to hear a certain type of lawsuits. But it does not, of itself, create a cause of action for any particular type of wrongdoing. For a prospective plaintiff to have the right to take advantage of this jurisdiction, the plaintiff must find a cause of action somewhere else. DOJ Br. at 5-9.
  
  Comment: This argument seems almost indisputably correct. I don't see how anyone could read the Alien Tort Claims Act as creating a cause of action. It's strictly jurisdictional.
  
  
• Argument 2: Plaintiffs can bring claims that are based on the "law of nations" only if "that law has been affirmatively incorporated into the laws of the United States." Congress must specifically create a cause of action, in other words. DOJ Br. at 11.
  
  Comment: I'm less certain about this argument. I'd like to see more research and argumentation on whether the "law of nations" can give rise to a cause of action even in situations where Congress hasn't expressly put that cause of action into the United State Code. At least I'd like to see what the other side had to say.
  
  
• Argument 3: A proper cause of action cannot be found in non-binding UN resolutions, unratified treaties, or non-self-executing treaties. DOJ Br. at 12. Judicial creation or implication of causes of action is not allowed, particularly given the Supreme Court's unwilliness to imply private causes of action in congressional statutes. Id. In short, it is up to the political branches of government to create new causes of action, and where they have not done so, the judiciary shouldn't take the opportunity to innovate. Id. at 14-16.
  
  Comment: I largely agree with this point. It seems to be an accurate representation of the existing state of law.
  
  
• Argument 4: It might be especially intrusive and dangerous for the judiciary to be inventing new rights and causes of action in this arena. The Alien Tort Claims Act does grant jurisdiction to hear lawsuits brought by aliens based on the "law of nations." But the political branches have the right to decide what the "law of nations" is, i.e., on what forms of international law the United States agrees to. It should not be the prerogative of a single federal district judge to remake our foreign policy by creating a new basis for "deciding suits between foreigners regarding events that occurred within the borders of other nations, and in the exercise of foreign governmental authority." DOJ Br. at 21.
  
  Comment: I tend to agree with this argument. And I think this is what's really driving DOJ's decision to file an amicus brief here. They are nervous about the prospect of a flood of lawsuits that might interfere with our attempts to monitor or capture terrorists overseas.

The bottom line is this: The law doesn't right every wrong. Sometimes the law allows an alleged murderer to go free because the police didn't have a warrant to search his house. And here, it might be the case that the law doesn't allow a particular plaintiff to sue a big corporation for an alleged wrong committed by a foreign government. That doesn't mean that anyone who wants to follow the law is in favor of murder or in favor of the foreign government's wrongdoing.

UPDATE: I would have had an easier time finding DOJ's brief had I caught Max Power's post on the Unocal suit. Check out what he has to say.

I just recently bought Andre Previn's book No Minor Chords: My Days in Hollywood. I had read it before for a graduate school project that involved reading just about everything ever written on film music. Reading it again is just delightful. It has to be the funniest book I have ever read. Here's a short excerpt:

At Metro, in the music department, a similar rule was instigated by the department's bookkeeper and accountant, a Mr. I.M. Halperin, a pale man with rimless glasses and a rimless sense of humor. All composers, the rule stated, had to be on the lot between ten and six every day, and should there be a deviation from these hours, he had to be notified. The rule was posted, and we waited in vain for Zorro to come and make his mark on the memo. However, as it happened, I had to work straight through the night soon after, and when I finally tottered out of my office, with eyes red as a rabbit's, I noticed that it was four in the morning. I went back to my desk and rang Mr. I.M. Halperin at home. It took quite a few rings before he answered. "Hello," I said cheerfully, "I'm so sorry to bother you, but this is Andre. I've just finished, it's not six in the evening, it's four in the morning, so I thought I had better let you know that I'm going home now." The rule was rescinded two days later, and for a very little while I was a folk hero.

All these attempts by executives to marshal the muse into line pale into insignificance in comparison to an edict once issued by Irving Thalberg.

He was the most renowned of all the MGM producers but his reign at the studio was in the early thirties, so I missed out working for him. He was the model for Scott Fitzgerald's Last Tycoon, and is generally held to have been an awesome figure of intellect, taste, and drive, and the old-timers in Hollywood still speak of him as a sort of combination Ziegfeld and Teilhard de Chardin. It is entirely possible that he was a beacon of enlightenment, but when it came to music his fund of information was miniscule. One day, the story goes, he was in his projection room running a new MGM film when something on the sound track bothered him. "What is that?" he asked irritably into the darkness. "What is that in the music? It's awful, I hate it!"

The edge in his voice required an answer, even if that answer was untainted by knowledge. One of his minions leapt forward. "That's a minor chord, Mr. Thalberg," he offered. The next day, an inter-office memo arrived in the music department with instructions to post it conspicuously. It read as follows: From the above date onward, no music in an MGM film is to contain a "minor chord." Signed, IRVING THALBERG.

Thus the title of Previn's book, in which virtually every page contains a similarly hilarious anecdote.

Music Preferences Linked to Personality: Study

NEW YORK (Reuters Health) - The music you listen to may say more about you than you think, according to new research findings that suggest that our choice in music reflects our personalities.

Do you enjoy blues, jazz, classical and folk music? You may be intelligent, tolerant and politically liberal, researchers report.

Meanwhile, country and religious music fans tend to be cheerful, outgoing, reliable and conventional, while alternative and heavy metal music lovers tend to be physically active, curious risk-takers.

I wonder what that says about those of us with all-encompassing eclectic tastes. I enjoy jazz and classical (as you might expect, given that I spent 6 years getting degrees in classical guitar performance). But I also enjoy country music, bluegrass, Christian music (at least some of it), and modern rock. I would have a much easier time coming up with the very few genres and periods of music that I don't like than the ones that I do. (Dislikes: just about anything from the 1970s; most rap; 20th-century serial music. I'm also not too crazy about early Baroque opera.)

Many 101st wives face mini baby boom alone

FORT CAMPBELL, Ky. - One by one, after their husbands returned from fighting in Afghanistan last summer, many of the soldiers' wives at Fort Campbell shared a secret: They were pregnant.

The births now of the "Afghani babies" - as the wives affectionately call them - about nine months after the soldiers came home is creating a mini baby boom. But the fathers aren't there to see their births because they are in Iraq.

Looks like my sister isn't alone.

This essay by Arnold Kling is an interesting analysis of the health care system:

When in a previous essay, The Statism Trap, I alluded to the problem of socialized medicine, one reader provided aggressive feedback. He was adamant that health care is so expensive that the only way people can afford it is if the government pays the bill.

Anyone who believes that we can afford collectively what we cannot afford individually is delusional. Based on my experience with the reader's feedback, this delusion appears to be untreatable. However, I think it is important to point out this peculiar mental illness.

Suppose that a group of friends is getting ready to go out for dinner. At first, they consider a fancy restaurant, but then it is pointed out that the price of a meal there is higher than anyone in the group can afford. Somebody pipes up and says, "That's ok. We can just split the check." Does that make sense?

Paying for health care with taxpayer dollars means splitting the check for health care. Health care costs do not diminish. Quite the contrary. Just as splitting the check at a restaurant tends to lead people to order more expensive meals than what they would order on their own, insulating individuals from the cost of health care decisions tends to make them less cost-conscious in their health care choices.

Simon Lazarus's op-ed on the Rehnquist Court (in yesterday's Washington Post) provides an all-too-typical example of misrepresentation of the Court's Eleventh Amendment jurisprudence:

Since the mid-1990s, the five "conservative" justices (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor) had stuck together in decision after decision to pare back congressional authority over the states. In 2000 they invalidated provisions of the 1967 Age Discrimination in Employment Act empowering state employees to sue their employers for violations. A year later, the same majority stripped state employees of their right to sue for violations of the Americans with Disabilities Act.

No. The Court did not invalidate the right to sue employers, nor did the Court "strip[] employees of their right to sue." The Court merely held that employees could not sue state governments for damages, while leaving alive the ability to sue for injunctions. Granted, one can argue all day over whether this was justified under the Eleventh Amendment and over what effect it might have on state employees, but it is still erroneous to suggest that the Court completely struck down those statutes. It's just not true.

The more I think about the media consolidation issue, the more I tend towards the view that consolidation might be a boon for diversity. I'm still waiting to see empirical studies, of course, but what the Armchair Analyst said (in a post I linked yesterday) seems plausible to me:

One could easily argue that more concentration of ownership would create more diversity not less. Niche markets, like techno music of libertarian talk radio, have, by definition, a smaller audience and therefore less profit potential. Though some profit may be possible, the initial investment required is too high to attract small-time media corps. A large conglomerate on the other hand, could easily divert resources to capitalize potential revenue. Think about bookstores. A mom and pop store can't afford to have an extensive philosophy section because ancient wisdom just doesn't sell in the quantities needed to pay back their investment. Borders or Barnes and Noble don't have the same problem because of the scale of their stock and sales. It costs them relatively little to set aside a shelf and a few books and rarities that might draw in a few more customers. Apply that simple model to radio and television and imagine the possibilities.

Following on that point, I would observe that even if all your local radio stations were independently owned, you would probably still find a lot more diversity of radio programming on a single source -- XM Satellite Radio.

Here's a spot-on analysis of the media deregulation question.

You have to read to the end of this Christopher Hitchens article to find this unrelated, but hilarious, paragraph:

Who gets to decide about acronyms? There's been a qualitative decline lately. The most recent instance is that of SARS, or "severe acute respiratory syndrome." Severe and acute? The redundancy cries aloud. Was someone trying to avoid ARS? For a long time AIDS had no name, but then it was an immune deficiency syndrome. Not only that, but an immune deficiency syndrome that was "acquired." Well, obviously it had been acquired. Was someone trying to avoid IDS, with its Freudian sexual-pathology overtones? Perhaps on second thought this clumsiness isn't so recent. I have been campaigning for years against the evident redundancies in the term WASP for white Anglo-Saxon Protestant. Essentially a term of class rather than ethnicity (George Wallace somehow wasn't a WASP, though somehow William F. Buckley is one), it obviously doesn't require the initial W. There are, clearly, no BASPs or JASPs. That would leave us with ASP, which is OK except for that stray Buckley thought. He's Irish Catholic. But what are you left with if you circumcise the P as well? These are deep waters, and they deserve to be plumbed further.

I find it amusing that so many congressmen are upset over the FCC's decision to relax its rules on media consolidation.

Why do I find that amusing? Because the FCC's decision was driven by the fact that its media consolidation rules keep getting struck down in court, as Michael Powell's memo clearly stated and as anyone familiar with the issue already knows. And why do the rules keep getting struck down in court? Because Congress included a provision in the 1996 Telecommunications Act (Section 202(h)) that mandates two things: 1) The FCC must review its ownership rules every two years to determine whether the rules are "necessary" in the public interest, and 2) The FCC must repeal any rules that are no longer in the public interest.

In other words, the FCC has been taken to court several times over its ownership rules. The courts, relying on Congress's mandated presumption in favor of repeal, keep striking down the rules because the FCC can't come up with evidence that its rules actually accomplish anything.

So that's why I find it amusing that Congress is getting mad over the FCC's decision. The hyperbole emanating from some quarters can be chalked up to simple ignorance of the law, but, of all people, members of Congress should be aware of the pro-repeal law that they themselves passed.

To me, the most fascinating thing about this chart of media concentration (link via Larry Lessig) is that I find myself constantly surprised at the staggering diversity of media venues that are owned by a single corporation. I would probably not have guessed that CNN, WB, and HBO are all owned by the same company (AOL/Time Warner), much less that the same company also owned Warner Brothers studios, Time magazine, Entertainment Weekly, Columbia House music, and Back Bay books, among many others.

So while some might view this chart and be alarmed by the supposed lack of diversity, I (playing devil's advocate) would argue that the chart implies the opposite. I.e., I think the chart implies that oligopolistic ownership may still produce incredible diversity of content. Indeed, that's precisely why I was surprised -- the diversity of content would have led me to expect diversity of ownership. This chart handily demonstrates that the two types of diversity aren't necessarily correlated.

I couldn't agree more with Kevin Drum's post on the media deregulation controversy. He hits on all the reasons why I think the controversy is overblown.

Let me put his reasons in my own words:

• The government probably shouldn't be regulating the media anyway, and to the extent concentration is a problem, we already have antitrust laws to handle that.
• We modern Americans have more information from more sources at our fingertips than any other people in the history of the world. Hence, we could do with a little less hyperbole about the FCC destroying the "foundations of a democratic society."
• As I commented below, the empirical evidence that deregulation is going to cause any concrete harms is awfully slim.

I should add, though, that I've considered (as is my custom) whether my own idiosyncratic self-interest is playing a role in forming my beliefs here. As usual, it might be.

Most people who are worried about the issue seem to think that it would be better to have more diversity of ownership as to television news. Since I rarely watch television news, and since I wish more people would stop watching it altogether, it's possible that I might be underestimating or neglecting the benefit, if there is any, of diverse ownership in that context. Just so you know where I'm coming from.

UPDATE: The FCC has now released its decision. (Go to http://www.fcc.gov to find statements from all the Commissioners). Accompanying the press release is a chart (PDF file) that shows the increase in diversity of ownership in several media markets over the past 40 years. The FCC might have cherry-picked the examples, of course, but it's still an interesting chart.