Wednesday, December 31, 2003


This CNN report is scary:
A man was found dead Tuesday night in the wheel well of a British Airways plane at New York's John F. Kennedy International Airport, authorities said. It is the second body found in the wheel well of a plane at the airport in less than a week.
So how are these people even getting into the wheel wells in the first place? And what's to stop someone from planting explosives in the wheel well?


If you think the regulatory example below -- a rule banning green bananas -- is fanciful, consider the following:

1. In one infamous proceeding, the FDA spent literally 9 years debating back and forth over whether "peanut butter" should be 87.5% or 90% peanuts. (!) As one federal court described the rule and its creation:
The order was promulgated under Section 401 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 341. Basically, it limits the percentage by weight of optional ingredients which may be added to the peanut ingredient to a maximum of ten per cent. It allows for the addition or removal of peanut oil and limits the fat content to 55 per cent. The standard also identifies allowable additives and specifies certain labelling requirements. * * *

The initial order issued June 25, 1959, 24 Fed.Reg. 5391 (July 2, 1959). Objections caused a revision, and a second order was published, 26 Fed.Reg. 11209 (Nov. 28, 1961), but its effectiveness was stayed, 27 Fed.Reg. 943 (Feb. 1, 1962). After a proposed revision, 29 Fed.Reg. 15173 (Nov. 10, 1964), and a third order, 30 Fed.Reg. 8626 (July 8, 1965), objections were filed and a public hearing was requested. Notice of the hearing was given, 30 Fed.Reg. 11970 (Sept. 18, 1965), and a hearing was held. The order appealed from issued, 33 Fed.Reg. 10506 (July 24, 1968).

Corn Products Co. v. Department of Health, Education & Welfare, 427 F.2d 511, 513 (3d Cir. 1970).
These hearings produced 7,736 pages of transcript -- all over the peanut content of "peanut butter." For all the Federal Register pages expended in that proceeding, there was but a single rule that kept being modified.

2. A post from Armavirumque points out that European grocers "have to ensure that under EU regulation 2257/94 their bananas are at least 13.97cm (5.5in) long and 2.69cm (1.06in) round and do not have 'abnormal curvature', as set out in an eight-page directive drawn up in 1994."


This New York Times article analyzes the Bush administration's approach towards regulation. What irritated me was this mention of the number of pages in the Federal Register:
"As far as I can tell, he has not uttered the word `deregulation' since 2001," said James L. Gattuso, a research fellow in regulatory policy at the Heritage Foundation, who recently completed a study of regulation in the Bush era. "This stuff about the antiregulation president is a Howard Dean myth," he argued.
* * *
Indeed, Mr. Gattusso sees no decline in overall government regulation in the Bush years — he counts 75,000 pages of the Federal Register filled with new rules this year. It is the kind of statistic Mr. Bush liked to cite in less than complementary terms in the last presidential election.
Of all the ways to estimate the scope and effect of federal regulations, a page count from the Federal Register has to be one of the least helpful, although it is apparently quite common among anti-regulatory folks. First, most of the pages of the Federal Register do not contain final regulations at all. Rather, agencies are constantly issuing "Notices of Proposed Rulemaking," which often take up 50 to 100 pages, in which they ask for comments on a proposal to change an existing regulation or add a new one. In fact, out of 75,000 pages in the 2002 Federal Register, only about 19,000 were devoted to final rules. (See page 9 of this Cato report.)

Still, that's 19,000 pages, one might say. It does sound like a lot of regulation. But the page-count metric is still grossly misleading. First, final "rules" are almost always accompanied by a lot of extra verbiage, in which the agencies explain in exhaustive detail how they arrived at the final rule, what they thought of the comments submitted, and why they didn't choose a different rule.

Second, many final rules do not create brand new regulations in areas where no regulation existed before. Many, if not most, final rules simply replace a pre-existing rule by modifying it in light of changed circumstances or new research. To take an area with which I'm deeply familiar, the FCC issued an new telecommunications rule in August called the Triennial Review. It was massive. But all that the Triennial Review did was tweak telecom regulations that already existed, and which themselves already took up several hundred pages (including accompanying explanations) in the Federal Register from previous years. In fact, the effect of the Triennial Review was to loosen, if only slightly, those pre-existing regulations.

Imagine this hypothetical: The Federal Fruit Commission issues a Notice of Proposed Rulemaking in 2004 asking for comments on whether it should ban the sale of green bananas. This takes up 50 pages in the Federal Register. In 2005, the FFC issues a final rule banning the sale of bananas that are more than 75% green. The rule itself is two lines long, but is accompanied by 100 pages of explanation. In 2006, the FFC has realized that the grocery industry hates the rule. It issues another NPRM of 50 pages asking whether it should change the rule to apply to 50% green bananas. In 2007, the FFC issues another two line rule, with 100 pages of explanation, changing the previous rule to read "50%." In 2008, the FFC realizes that people are still unhappy, and that the rule doesn't really accomplish any public good. It issues another 50-page NPRM asking if the rule should be eliminated. Then, in 2009, the FFC finally gets rid of the green banana rule, along with 100 pages of explanation.

If you looked at pages in the Federal Register, you might say, "Oh my goodness, the FFC has produced 450 pages in the past 6 years just on green bananas. Regulation is out of control!" But nowhere are there "450 pages of rules" that apply to green bananas. In fact, at that point, the green banana rule would no longer exist, and the regulatory burden would be zero. Of course, the 450-page number might be useful if you want to approximate the societal effort spent on dealing with federal agencies -- i.e., monitoring rulemakings, writing comments, etc. But "450 pages" would not in any sense represent the actual regulatory burden on anything.

Tuesday, December 30, 2003

A little self-promotion

I just noticed that the International Policy Network has a new webpage for its just-issued book titled Adapt or Die: The Science, Politics, and Economics of Climate Change. The book is a collection of essays on the Kyoto Protocol; you can read a summary of those essays here. One of the chapters is an adaptation of a Harvard Environmental Law Review article that I co-wrote with Clemson economics professor Bruce Yandle. We argued that while the Kyoto Protocol was presented to the public as a pure-hearted attempt to improve the environment, many of its substantive requirements were really designed to help out various multi-national corporations and European countries.

Torture Techniques

From a recent Newsweek article:
American units in the field have rattled Iraqi prisoners under interrogation by playing loud, scratchy recordings of heavy-metal music—even bluegrass. "They started freaking out when they heard that," explained one sergeant in psychological operations. "They don't like that twang sound."
Hey, it's war.

Monday, December 29, 2003


treemaker laryngismus Modulidae oleoresin favous
suitable cannibalistically, requiter Swede hagiographical
gapingly Mormoness
So read the text of a recent spam email directed to my mailbox. Evidently the spammers have taken to hiring modern poets.

Wednesday, December 24, 2003

Neocons and Communism

There are a couple of revealing lines in this post from Calpundit, in which Kevin Drum argues that neoconservatives erred during the Cold War by focusing on Communism so singlemindedly that they occasionally supported Islamic fundamentalists who were (so it was thought) helpful in fighting Communism. Here are the two lines:
The very single-mindedness that neocons are famous for blinded them to the fact that they were contributing to the rise of an even bigger problem, one that had nothing at all to do with communism. * * * [W]ouldn't it be better, instead, to try a cure that hasn't already been proven worse than the disease?
Drum is saying, in short, that Islamic fundamentalism is an "even bigger problem" than Communism.

Hmm. Let's see.

Number of people killed by Communism: Somewhere in the neighborhood of 100 million people.

Number of people killed by Islamic fundamentalist terrorism: This is a difficult question. It all depends on how broadly you define "terrorism," and how willing you are to blame Islamic fundamentalism for deaths arising from regional/ethnic conflicts or from totalitarian governments in the Middle East. Figure A-1 of the article Measuring Terrorism, by Bruno Frey and Simon Luechinger, plots out data collected by the U.S. Dept. of State (whose latest report on world terrorism you can find here) and by RAND. A liberal estimate would be an average of 500 deaths worldwide per year for the past 20 years -- from all forms of terrorism. Even if you attribute all of these deaths to Islamic terrorists, and then add in another 5,000 deaths for post-2000 years, the total is only 15,000 at most. The bottom line is, you'd have to do some very creative calculating to come up with a figure that was even a thousandth of the death toll from Communism.

So: What makes Kevin Drum think that Islamic fundamentalism is an "even bigger problem" than Communism? Does he simply mean a bigger problem for us Americans? (Communists never killed anyone on American soil, after all.)[1] Or is it that he thinks Islamic fundamentalism will kill many more people in the future before it is played out?

1. One is reminded of the following passage from Chapter 3 of Adam Smith's Theory of Moral Sentiments, in which he suggests that the typical European would be more distraught by the loss of his pinky finger than from the death of 100 million Chinese people:
Let us suppose that the great empire of China, with all its myriads of inhabitants, was suddenly swallowed up by an earthquake, and let us consider how a man of humanity in Europe, who had no sort of connexion with that part of the world, would be affected upon receiving intelligence of this dreadful calamity. He would, I imagine, first of all, express very strongly his sorrow for the misfortune of that unhappy people, he would make many melancholy reflections upon the precariousness of human life, and the vanity of all the labours of man, which could thus be annihilated in a moment. He would too, perhaps, if he was a man of speculation, enter into many reasonings concerning the effects which this disaster might produce upon the commerce of Europe, and the trade and business of the world in general. And when all this fine philosophy was over, when all these humane sentiments had been once fairly expressed, he would pursue his business or his pleasure, take his repose or his diversion, with the same ease and tranquillity, as if no such accident had happened. The most frivolous disaster which could befal himself would occasion a more real disturbance. If he was to lose his little finger to-morrow, he would not sleep to-night; but, provided he never saw them, he will snore with the most profound security over the ruin of a hundred millions of his brethren, and the destruction of that immense multitude seems plainly an object less interesting to him, than this paltry misfortune of his own.

Sunday, December 21, 2003

An idea

How come no one makes caffeinated milk? I'd love it. I usually drink coffee in the morning, but sometimes I'm just not in the mood for a hot drink. Plus, you could save time by pouring the caffeinated milk on your cereal.

New Law Review Article

This looks interesting:
Bargaining in the Shadow of the Law: Divorce Laws and Family Distress

Stanford University
Graduate School of Business
National Bureau of Economic Research (NBER)

Harvard University


Over the past thirty years changes in divorce law have significantly increased access to divorce. The different timing of divorce law reform across states provides a useful quasi-experiment with which to examine the effects of this change. We analyze state panel data to estimate changes in suicide, domestic violence, and spousal murder rates arising from the change in divorce law. Suicide rates are used as a quantifiable measure of well-being, albeit one that focuses on the extreme lower tail of the distribution. We find a large, statistically significant, and econometrically robust decline in the number of women committing suicide following the introduction of unilateral divorce. No significant effect is found for men. Domestic violence is analyzed using data on both family conflict resolution and intimate homicide rates. The results indicate a large decline in domestic violence for both men and women in states that adopted unilateral divorce. We find suggestive evidence that unilateral divorce led to a decline in females murdered by their partners, while the data revealed no discernible effects for men murdered. In sum, we find strong evidence that legal institutions have profound real effects on outcomes within families.
UPDATE: And so does this one:
Fear and Greed in Tax Policy: A Qualitative Research Agenda

University of Texas School of Law

University of Texas School of Law

In this piece, prepared for a symposium on the empirical study of taxation, we consider the intriguing possibility that taxes generate disutility for taxpayers in excess of the dollar amounts involved. While most people dislike paying taxes, the extent to which a phenomenon of "tax aversion" exists is empirically unknown, as are the causes and constituent elements of any such aversion. Investigation of these questions could provide important lessons for tax policy. If people are averse to taxes above and beyond the financial losses the taxes represent, they would tend to spend more time and money on tax avoidance than economic analysis would predict, creating additional deadweight losses for society. Even where avoidance is not pursued at elevated levels, tax aversion would increase the disutility associated with the payment of the tax, generating psychic costs and potentially impacting compliance levels. Hence, a better understanding of the magnitude and components of tax aversion could advance comprehension of taxpayer behavior and spur useful innovation in tax design.

Thursday, December 18, 2003


Yale law professor Bruce Ackerman is a well-respected constitutional theorist. He also has written several books promoting a series of impractical ideas that all involve the federal government paying people a considerable amount of money. His most extravagant idea is presented in The Stakeholder Society (written with Anne Alstott), where he argues that every United States citizen should be given a federal grant of $80,000 on turning 21. I'm sure I would have loved that idea about 8 years ago, but I'm considerably more dubious now that I'm in the group of people who would be paying for it. Then, in Voting With Dollars, Ackerman (joined by Ian Ayres) argues that campaigns should be funded by what he calls the "Patriot Dollar" system, in which all citizens would be given 50 "Patriot Dollars" (again by the federal government) that they would then allocate in secrecy to the federal campaign of their choice. Interesting idea; not going to happen.

In his latest book, co-authored with James Fishkin, Ackerman has yet another unrealistic idea to promote: A national holiday called Deliberation Day. He and Fishkin explain their new idea in this Legal Affairs article:
In our soon-to-be-released book, we offer a new way of thinking about democratic reform, proposing a new national holiday—Deliberation Day. It would replace Presidents' Day, which does no service to the memories of Washington and Lincoln, and would be held two weeks before major national elections.

Registered voters would be called together in neighborhood meeting places, in small groups of 15 and larger groups of 500, to discuss the central issues raised by the campaign. Each deliberator would be paid $150 for the day's work of citizenship. To allow the business of the world to carry on and as many as possible to participate, the holiday would be a two-day affair.
Hmmm. Sounds awfully officious and meddlesome to me. Richard Posner's review is scathing:
I do not believe that private concerns are petty and that people are fully human only when they are deliberating about the “common good.” I do not even think such deliberations are productive of much except sound and fury. Widespread deliberation by citizens at large on issues of politics would mainly just reduce the civility of our politics by raising the temperature of public debate, making our politics more ideological and therefore more divisive.

* * *

I will be called cynical for doubting the value of political debate among ordinary citizens, for casting them in the role of passive onlookers of a struggle among ambitious politicians, and for questioning the possibility of meaningful reform of policy. I am merely being realistic. Reform does not well out of deliberation, but reflects passions and interests. Abolitionism, the suffrage movement, the civil rights movement, the opposition to the war in Vietnam, the rise of free-market ideology, welfare reform, and the gay-rights movement were not the product of discussion among voters debating on the model of the academic seminar (the implicit model, naturally, of academic reflection on the political process by the proponents of deliberative democracy, academics all). They were the product of moral and political entrepreneurs tapping into wells of discontent among minorities and eventually getting the attention of the politicians.

* * *

I have difficulty suppressing the uncharitable thought that there may be an element of bad faith in the deliberative-democracy movement generally (I do not mean in Ackerman and Fishkin particularly). I think that what motivates many deliberative democrats is not a love of democracy or a faith in the people, but a desire to change specific political outcomes, which they believe they could do through argument, if only anyone could be persuaded to listen, because they are masters of argumentation. I infer this secret agenda from the fact that most proponents of deliberative democracy advocate aggressive judicial review, which removes many issues from democratic control; are coy about indicating what policies they dislike but would accept; and are uncommonly fond of subjecting U.S. citizens to control by international organizations of questionable, and often of no, democratic pedigree. I sense a power grab by the articulate class whose comparative advantage is—deliberation.


Check out this fascinating article about Judge Alex Kozinski of the Ninth Circuit. As a former law clerk, this bit interested me:
Law students line up to clerk for Kozinski because of his writing prowess, his network, and his pull. “Within three hours of accepting my clerkship, I got five calls from former clerks welcoming me aboard,” recalled Steven Engel, now a lawyer at Kirkland & Ellis in Washington. This year's clerks—three women, a Kozinski first—are all “going upstairs,” as the judge puts it, to work at the Supreme Court.

The downside of clerking for Kozinski is that he owns you. The hours are 9:30 a.m. to 1:30 a.m., with Friday nights and some Saturday nights off. There have been clerks who have been chewed up and spit out by the pressure. “He goes around telling clerks 'You're the gold medal clerk, you're the silver medal, you're the bronze medal,'” one professor said. “You subordinate yourself to him and maybe he gets you to the Supreme Court. It's a Faustian bargain.”
That's about right, I guess. A good friend of mine from law school (he ended up clerking for a Supreme Court justice) once asked Kozinski whether he could have the clerkship if he was only willing to work from 9 a.m. to 11 p.m. seven days a week. Kozinski told him no.

New Law Review Article

My friend (and new blogger) Rick Garnett emails to say that a new article of his is on SSRN. It looks to be quite interesting:
The Theology of the Blaine Amendments

University of Notre Dame - Law School

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.

Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.

Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.

Wednesday, December 17, 2003

Chesterton Quote

I've always liked this quote from Chesterton's essay The Case for the Ephemeral
It is incomprehensible to me that any thinker can calmly call himself a modernist; he might as well call himself a Thursdayite. . . . The real objection to modernism is simply that it is a form of snobbishness. It is an attempt to crush a rational opponent not by reason, but by some mystery of superiority, by hinting that one is specially up to date or particularly 'in the know.' To flaunt the fact that we have had all the last books from Germany is simply vulgar; like flaunting the fact that we have had all the last bonnets from Paris. To introduce into philosophical discussions a sneer at a creed's antiquity is like introducing a sneer at a lady's age. It is caddish because it is irrelevant. The pure modernist is merely a snob; he cannot bear to be a month behind the fashion.


I was rather irritated by Roger Ebert's review of The Return of the King. He writes:
That it falls a little shy of greatness is perhaps inevitable. The story is just a little too silly to carry the emotional weight of a masterpiece. It is a melancholy fact that while the visionaries of a generation ago, like Coppola with "Apocalypse Now," tried frankly to make films of great consequence, an equally ambitious director like Peter Jackson is aiming more for popular success. The epic fantasy has displaced real contemporary concerns, and audiences are much more interested in Middle Earth than in the world they inhabit.
If he thinks Tolkien's story is "silly," I'd hate to hear what he thinks of such flights of fancy as Hamlet or Oedipus. (Consider as well the fawning review that Ebert once wrote for Forrest Gump, a movie that, while delightful, has an utterly ludicrous plot.)

And what makes Ebert think that a film is to be judged by whether it is about "the world [we] inhabit" or by its relevance to "real contemporary concerns"? What an odd criterion. Must a story be about the war in Iraq or the expansion of Medicare in order to be worthy of Ebert's approval?

Ebert continues:
There is little enough psychological depth anywhere in the films, actually, and they exist mostly as surface, gesture, archetype and spectacle. They do that magnificently well, but one feels at the end that nothing actual and human has been at stake; cartoon characters in a fantasy world have been brought along about as far as it is possible for them to come, and while we applaud the achievement, the trilogy is more a work for adolescents (of all ages) than for those hungering for truthful emotion thoughtfully paid for.
Ebert just doesn't understand the genre. To paraphrase what a thoughtful observer once said about the second film, criticizing Tolkien for a lack of "psychological depth" is like criticizing Jane Austen's books for lacking any sweeping battles or heroic rescues. It is a mistake to treat one narrow genre of artistic expression (i.e., the realistic psychological drama) as the model for all genres.

Tuesday, December 16, 2003

New Law Review Article

This looks very interesting:
The Role of the Local in the Doctrine and Discourse of Religious Liberty

University of Virginia - School of Law

UVA School of Law, Public Law Working Paper No. 03-18
Harvard Law Review, Vol. 117, April 2004

Much of the Supreme Court's modern religion clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations, and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses.

The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's religion clause jurisprudence should therefore be more skeptical of federal statues and regulations that touch on religion than similar local statutes and regulations. On this argument local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.

Monday, December 15, 2003

New Supreme Court case

The Supreme Court issued an opinion today in a case called Castro v. United States. The central issue in the case was whether Mr. Castro, a prisoner representing himself pro se, had filed a "second petition" for habeas corpus under 28 U.S.C. 2255. That might seem a rather obscure topic for a Supreme Court case, but it's fairly important: When someone is in prison for violating federal law, they basically get one round of direct appeals. After that, the only way to challenge the conviction is by bringing a habeas corpus action under 28 U.S.C. 2255, in which the prisoner argues that the conviction was unconstitutional.

The thing is, though, Congress cracked down on the availability of habeas corpus actions with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Most importantly, if the prisoner has already filed one habeas corpus action, he can't file a second one (or a third, etc.) unless he meets some very strict conditions: The court of appeals has to pre-approve the claim by certifying either 1) that there is newly-discovered evidence that definitely proves the prisoner's innocence, or 2) that the Supreme Court has announced some new constitutional rule that applies retroactively to people already in jail. Number 2 almost never happens, as far as I know, and number 1 isn't much more likely.

And so we come to the issue in this case. The prisoner had filed one motion that he himself had called a "Rule 33 motion for a new trial." But, as courts often do in pro se cases, the district court here "recharacterized" the motion as one for habeas corpus relief under 28 U.S.C. 2255. Then, when the prisoner wanted to file an actual habeas corpus motion under 28 U.S.C. 2255 some years later, the court basically said, "Tough luck, you had your one shot and you don't meet the conditions for a second habeas motion."

In the Court's majority opinion, Justice Breyer acknowledged that courts often "recharacterize" motions, particularly those filed by pro se prisoners. Without condemning this practice generally, Breyer wrote that the lower court had acted improperly here:
The limitation applies when a court recharacterizes a pro se litigant’s motion as a first §2255 motion. In such circumstances the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent §2255 motion will be subject to the restric-tions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the §2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a §2255 motion for purposes of applying to later motions the law’s "second or successive" restrictions.
Most of the Justices signed on to this opinion in full. But Justice Scalia, joined by Justice Thomas, wrote a separate concurrence that is worth noting. Scalia began by saying, "I write separately because I disagree with the Court’s laissez-faire attitude toward recharacterization." He continued:
In my view, this approach gives too little regard to the exceptional nature of recharacterization within an adversarial system, and neglects the harm that may be caused pro se litigants even when courts do comply with the Court’s newly minted procedure.
* * *
It is not the job of a federal court to create a "better correspondence" between the substance of a claim and its underlying procedural basis. But if departure from traditional adversarial principles is to be allowed, it should certainly not occur in any situation where there is a risk that the patronized litigant will be harmed rather than assisted by the court’s intervention. It is not just a matter of whether the litigant is more likely, or even much more likely, to be helped rather than harmed. For the overriding rule of judicial intervention must be "First, do no harm." The injustice caused by letting the litigant’s own mistake lie is regrettable, but incomparably less than the injustice of producing prejudice through the court’s intervention. The risk of harming the litigant always exists when the court recharacterizes into a first §2255 motion a claim that is procedurally or substantively deficient in the manner filed.
* * *
In other words, even fully informed district courts that try their best not to harm pro se litigants by recharacterizing may nonetheless end up doing so because they cannot predict and protect against every possible adverse effect that may flow from recharacterization. But if district courts are unable to provide this sort of protection, they should not recharacterize into first §2255 motions at all.
In short, Scalia and Thomas were concerned that the Court's new rule wasn't protective enough towards pro se prisoners. And that is what I find interesting.

Of course, this isn't the first time that Scalia and Thomas joined in an opinion that was more "liberal" towards criminal defendants than the rest of the Court. In Apprendi v. New Jersey, the Court considered whether New Jersey’s hate crime statute was unconstitutional. Under this law, once the jury had decided guilt for the underlying crime, the prosecutor could get an increased sentence merely by proving the “hate” motive to a judge at sentencing (where the standard of proof was merely preponderance of the evidence). The Supreme Court held that this practice was unconstitutional, because the Constitution’s right to trial by jury requires that any factor which increases a defendant’s sentence beyond a statutory maximum should be proven to a jury beyond a reasonable doubt. Thomas wrote a concurrence, joined by Scalia, in which he argued for an even broader rule – that any facts which might increase a sentence at all (not just those that increase it beyond the statutory maximum) should have to be proved beyond a reasonable doubt.

The Number of Lawsuits

This NY Times story caught my eye:
On television and in the popular imagination, lawsuits and prosecutions end in trials, in open court before a jury. In reality, according to a new study, trials have become quite uncommon.

In 1962, the study says, 11.5 percent of all civil cases in federal court went to trial. By last year, that number had dropped to 1.8 percent. And even though there are five times as many lawsuits today, the raw number of civil trials has dropped, too. They peaked in 1985 at 12,529. Last year, 4,569 civil cases were tried in federal court.
1.8 percent of cases go to trial. Amazing.

Saturday, December 13, 2003

Guin and Gu-Win

Back when I was in college at the University of Georgia, I used to drive home to Arkansas by taking Highway 78 through most of Alabama and Mississippi. One of the things that always puzzled me is that in the northeast corner of Alabama, I would pass by two small, little towns right in a row -- Guin and Gu-Win. (View them on Mapquest here.) I always wondered how it was that two neighboring towns came to have those names. I figured that perhaps they used to be one town, but then they split because of a feud over how to spell the name.

This long-running mystery is now solved. Michael DeBow at Southern Appeal links to this story, which describes the town of Gu-Win's yearly practice of giving a gift certificate to all of its 200 residents. (DeBow asks what the point of this exercise is, but that's neither here nor there.) Towards the end of the story, we see the explanation for how Guin and Gu-Win came to be:
In addition to Gu-Win's hyphenated name, its gift certificate program is one of the things that sets it apart from most other U.S. cities and towns. It sits along the Bankhead Highway, U.S. 78, halfway between the larger Marion municipalities of Guin and Winfield, has no police or fire department and no traffic lights. But it does have a drive-in theater that operates during warm weather.

In its pre-incorporation days, it was known as Ear Gap.

Incorporation came in 1956. That's when Guin seemed keen on annexing Ear Gap. In response, Brandon Webster's grandfather, Oather Webster, and the owner of the local drive-in theater, George Thornton, led a drive to form a new town. Brandon Webster said the new town got the name Gu-Win from Thornton's drive-in because he did not want to spend any money to change his sign.
I love it. That's even funnier than I could have imagined.

UPDATE: Here's a page with some funny photos of highway signs in the Guin/Gu-Win area. For example:

I've seen that one myself. The only thing missing is a North.

Conversations with a Four Year Old

A conversation that my wife had with my 4 year old son last night:

Son: I want a Go-Bot (sp?) for Christmas.

Wife: Why do you want that?

Son: So that it can fight with my gray robot.

Wife [alarmed by the pugilistic tone of son's remark]: Why do you want them to fight?

Son: Because that's what robots do.

Wife: But why don't they just talk?

Son: They DO talk. They say, "Let's fight."

Thursday, December 11, 2003


Justice Thomas is often criticized for rarely asking questions at oral arguments. It is less often noted that many other Justices have historically been silent at oral argument, and that the real oddity is that 8 of the current Justices are so loquacious. In a panel discussion last year (just drawn to my attention via Southern Appeal), Carter Phillips, one of the nation's most experienced Supreme Court advocates, had this to say in response to a question from former Solicitor General Walter Dellinger:
Dellinger: Carter, I think you've argued starting further back than any of the rest of us. Is the Court much more active now than prior Courts? This is a change, isn't it?

Phillips: It's a vast sea change and it started, obviously, when Justice Scalia replaced [Warren] Burger. When I argued in 1981, you could pretty much bet you weren't going to get any questions from Justice [William] Brennan [Jr.], and you might get one question from Justice [Thurgood] Marshall. Justice Blackmun would ask a question that you weren't always sure you were quite ready for because you could never quite understand necessarily what the purpose of the question was, although I think he usually had one. And my old boss, Chief Justice Burger, very rarely asked one. I don't think he ever asked me a question at all in the years that I argued there.


Alfred North Whitehead famously said:
It is a profoundly erroneous truism, repeated by all copy-books and by eminent people when they are making speeches, that we should cultivate the habit of thinking of what we are doing. The precise opposite is the case. Civilization advances by extending the number of important operations which we can perform without thinking about them.
On a similar note, I would suggest that civilization advances not so much by increasing the level of personal trust amongst individuals (as argued in Francis Fukuyama's book Trust), but by increasing the number of situations in which personal trust is unnecessary. For further reading on this note, see Virginia Postrel's latest New York Times piece, "Should You Know Your Banker?"

Wednesday, December 10, 2003

Longest in History?

Eugene Volokh points out that the campaign finance reform decision -- 298 pages and over 90,000 words -- may be the longest in history, and asks if anyone can think of a decision that was longer. The only candidate that came to my mind was Gibbons v. Ogden, 22 U.S. 1 (1824), but when I cut and paste that decision into a word processing program, it comes out to a mere 65,000 words.

Longest decision in history: A dubious distinction if ever there was one.

Campaign Finance Reform

I have no intention of reading the full 298 pages of the opinion, but I thought I'd point out that the lineup of votes in the Supreme Court's campaign finance reform case has to be the most convoluted I've ever seen:
STEVENS and O'CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II–A, and II–B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.
Make sense of that!

Law Review Publishing

Professor Bainbridge asks:
Would I be more likely to place an article in Harvard or Yale if the bluebooking was perfect or would the editors figure they would have nothing to do and reject the article? I remain unsure, unfortunately, because Harvard and Yale have rejected everything I've ever submitted to them - no matter how well or poorly it was bluebooked (as has UCLA, but that's a story for another day). Surely it can't be the substance ... can it?
It probably is the substance. From what I can tell, Bainbridge writes articles that are actually about law. And not just about law, but on a boring and unsexy topic -- corporate law -- rather than about an exciting subject like constitutional law. This alone can be disqualifying at a top law review. If the typical law review editor has to choose between a piece on a subject that affects millions of people's lives (i.e., ERISA), and a piece on a subject of virtually no consequence to anyone's life (i.e., flag-burning laws, postmodernist theories of law-and-econ), the editor will usually go for the latter. During one of the years that I was an editor of the Harvard Law Review, we collectively managed to 1) reject a superb article on preemption that went on to win a national prize for the best paper by a new law professor, and 2) publish an article on cyberspace that literally had nothing to do with the law.

Tuesday, December 09, 2003

Good Book

I just finished reading William G. Lycan's Philosophy of Language: A Contemporary Introduction, and highly commend it to anyone looking for a general introduction to, well, philosophy of language. He provides a thorough overview of theories of reference, theories of meaning, and speech-act theory. He also has a wry sense of humor that shows up mostly in the endnotes. Check it out.


A great quote from Judge Alex Kozinski in an antitrust case:
Stripped to its essentials, defendants' argument is that some of the firms they wanted to include in the joint venture were so inefficient that they could survive only under cartel pricing. Defendants' concern for the weakest among them has a quaint Rawlsian charm to it, but we find it hard to square with the competitive philosophy of our antitrust laws. Inefficiency is precisely what the market aims to weed out. The Sherman Act, to put it bluntly, contemplates some roadkill on the turn-pike to Efficiencyville.

Freeman v. San Diego Ass'n of Realtors, 322 F.3d 1133, 1157 (9th Cir. 2003).

Monday, December 08, 2003

The New Republic Online: The Ethics of Belief

Simon Blackburn wrote a review of Richard Dawkins' latest book. This passage caught my eye:
Dawkins is an atheist, a strenuous and militant and proud one. He thinks religious belief is a dangerous virus, and that it is a crime to infect the mind of a child with it. He believes that 'only the willfully blind could fail to implicate the divisive force of religion in most, if not all, of the violent enmities in the world today.' He calls religions 'dangerous collective delusions,' and he thinks that they are sinks of falsehood (most of them have to be, since only one can be true).
Whenever I read Richard Dawkins' thoughts on religion -- or Christopher Hitchens, for that matter -- I get the distinct impression that here is someone who seems awfully desperate to believe that there is no God. It reminds me of C.S. Lewis's description of his atheistic period:
Amiable agnostics will talk cheerfully about "Man's search for God." To me, as I then was, they might as well have talked about the mouse's search for the cat. The best image of my predicament is the meeting of Mime and Wotan in the first act of Siegfried; hier brauch' ich nicht Sparer noch Spaher, Einsam will ich . . . . (I've no use for spies and snoopers. I would be private . . . .)

Remember, I had always wanted, above all things, not to be "interfered with." I had wanted (mad wish) "to call myself my own." I had been far more anxious to avoid suffering than to achieve delight. I had always aimed at limited liabilities. The supernatural itself had been to me, first, an illicit dram, and then, as by a drunkard's reaction, nauseous.
Surprised by Joy (1955), pp. 227-28. Atheists often suggest that many religious people believe in God because they find the idea of God pleasing or comforting -- in other words, for non-rational reasons. This may be true, but it is no less true that many atheists appear to disbelieve in God because they find the idea of God displeasing or uncomfortable.

Sunday, December 07, 2003


Out of all the places in America, where would you expect to find the highest number of immigrants from the Marshall Islands? Springdale, Arkansas, of all places. I find this fascinating, as Springdale is my hometown. Here's a story on the sort of work that has been drawing them to Arkansas, and here's a photo gallery of the Marshall Islands President's 2002 trip to Springdale.

Monopolies in Network Industries

A question that has been bugging me: Do monopolists restrict output if they are operating in an industry characterized by network effects?

Perhaps I should explain a bit. The classic problem with monopolies is that a monopolist won't set prices equal to marginal cost and produce the requisite number of items. Rather, a monopolist will restrict output and correspondingly raise the price. This is inefficient, because a lot of consumers won't pay the higher price, even though they would have made the exchange if the price had been at marginal cost (and the output correspondingly higher).

But what about industries with network effects? The classic example is a fax machine. If you own the first fax machine in the world, it's not much use, because there is no one to whom you can send faxes. If you own the second fax machine in the world, it's a little more valuable, but only slightly because there's only one person with whom you can exchange faxes. And so on -- the value of the network rises with the total number of fax machine owners. In other words, the usefulness of a given fax machine rises if there are more owners out there. So the 100 millionth owner should logically value the fax machine more than the first owner.

So what does this imply for the monopolist in a network industry? If there were a monopolist who made all fax machines, would it restrict output and attempt to raise the price? Or might it be able to raise prices even further by increasing output thereby increasing the value of the network? How do the incentives work here? I've tried to explore the economics literature a bit on this, but with little luck, probably because I don't know where exactly to look.


The latest solution for jilted lovers: Howard Dean's campaign.

A Question

When I'm scrolling down a webpage, I often like to click in the middle of the scroll bar. Usually, that makes the webpage scroll down by exactly the length of the screen, so that the new material appears right at the top of the screen. But my Windows XP computer, for some unknown reason, actually scrolls down two screens' length with each click. This is very annoying, because then I have to carefully scroll back up and figure out where I left off reading. How can I make it stop?

Saturday, December 06, 2003

New Blog

Looks like another good law blog has just started: Punishment Theory, which includes the following participants: Mitch Berman, Darryl Brown, Antony Duff, Claire Finkelstein, Rick Garnett, Stuart Green, Kyron Huigens, Stephen Morse, Ken Simons, Victor Tadros. I can't say that I'm very familiar with criminal law scholarship, but they seem to be accomplished and respected law professors, one and all.

Wednesday, December 03, 2003

More on Franks

And then there's Laurence Tribe's take on the Franks' interview. From the Financial Times:
In a rambling answer to a question about whether George W. Bush misled the US about weapons of mass destruction in Iraq, Franks says he fears an attack on the US or the west could "cause our own population to question our own Constitution and begin to militarise our country to avoid a repeat of another mass-casualty-producing event".

Does such a suggestion cross the line separating military from political leadership? Lawrence Tribe, the constitutional scholar at Harvard, says no. Tribe tells Observer that Franks is actually in line with speculation that another terror attack could make "the overreaction we've already witnessed in the application of the Patriot Act" look like "only a down-payment."

Review of Network Economics

A new edition of the Review of Network Economics has just come out this morning, and it's full of interesting and useful articles. (I suppose that depends on your definition of "interesting," of course.) Here are some highlights:
The Arbitrage Mirage: Regulated Access Prices with Free Entry in Local Telecommunications Markets

Thomas W. Hazlett and Arthur M. Havenner

Incumbent telecommunications carriers have been mandated to share their networks with new retail service providers at regulated wholesale rates. This regulatory structure creates options which incumbent systems must write and which all potential entrants are awarded at a price of zero. Intense debate revolves around the effect of the policy in promoting investment in network infrastructure or retarding it. Rival viewpoints in the policy discussion, however, appear to share the fundamental position that the options issued entrants by incumbent network owners are a transfer of wealth. This paper notes that, to the extent that the regulations actually achieve their purpose in eliminating entry barriers, the assumption is incorrect. Eliminating the sunk costs associated with providing network services can result in regulatory arbitrage that reduces the value of the option to enter to zero. The U.S. market for local telecommunications has witnessed characteristic elements of this rent seeking competition, and financial markets suggest that investors have begun to incorporate the view that the regulated wholesale access regime results in zero long-term profits for entrants.

Dynamic Pricing and Investment from Static Proxy Models

David M. Mandy and William W. Sharkey

This paper evaluates the use of static cost proxy models in setting forward-looking prices such as the prices set according to the FCC's TELRIC methodology. First, it compares the time paths of prices and depreciation under traditional regulatory accounting with the prices and depreciation implied by various versions of TELRIC. When TELRIC prices are recomputed at intervals shorter than asset lives, the firm will generally not earn the target rate of return. In these cases, a correction factor must be applied to the TELRIC price path in order for revenues to exactly recover investment cost, including the target rate of return. Next, the paper considers a firm's cost minimizing investment decisions under two different assumptions about asset obsolescence. In both scenarios, cost minimizing investment paths and implied utilization rates for the firm's assets are derived under a variety of assumptions about the relevant input parameters. Some implications for TELRIC pricing are then derived.
And there's lots more.


Don't miss Crescat Sententia's "20 Questions" for Howard Bashman.

As a practicing lawyer, I found it interesting that he doesn't directly answer the question whether he has any help from associates at his firm, or how he has the time even to type out all the links that he posts in a given day. Take Monday, for example. He put up 34 postings with 159 links. The word count is roughly 2300 words, not counting the interview with Posner. The longest period of time he went without posting during the workday was between 2:45 and 5:55 pm. Wow. It makes me wonder if he has some sort of special arrangement with his firm regarding billable hours. It would be a wise idea from the firm's perspective, I'd think, given the extraordinary renown his site has achieved.

What if Davey v Locke arose in Utah?

As I read Dahlia Lithwick's coverage of the Davey v Locke oral argument, I wondered what approach the court and press would have taken had the case originated in Utah. Dahlia writes:
[Kennedy was] bothered by the fact that Davey had his scholarship revoked simply because he'd declared a double major in pastoral ministries and business administration. According to Kennedy, Davey could have just declared the business major, taken theology courses, and kept his funding. Kennedy asks, over and over, "What is the state interest in denying him funding simply because he declared a double major?" Finally Ruth Bader Ginsburg has to answer him: "I thought the interest was the state doesn't want to fund the training of clergymen."
Lithwick clearly thought Ginsburg's comment responsive to Kennedy's concern.

The Utah Wrinkle

About 95% of Utah's state legislature are members of the Church of Jesus Christ of Latter-day Saints (Mormons). The Mormon church has a lay priesthood, and many of the state representatives and senators are clergy in the Mormon church. Senator Leonard Blackham, for whom I interned in 1997, was in a Stake Presidency (a stake is a group of 5 to 10 congregations; three men comprise the presidency), for example. I wouldn't be surprised to learn that 40% of Utah's legislature are or have been clergy in the Mormon church.

Because the Mormon church has a lay clergy, Mormons don't go to theology or divinity school. Mormon clergy have every conceivable college degree save one: theology.

If the Utah legislature were to make theology the sole college major that's excluded from a general scholarship, like Washington has, people might wonder if they were motivated by religious discrimination. Someone studying theology is likely to be a Catholic, or some other non-Mormon denomination. Refusing scholarships for theology majors would funnel the subsidies to students studying biology, sociology or accounting; i.e., future Mormon clergy. That way Mormons could avoid paying to educate other church's clergy, while getting other church's to subsidize the educations of Mormon clergy. The rule would be especially egregious if Utah, again like Washington, allowed students to take as many theology courses as they wished, but refused to let them list Theology on their diploma.

When challenged by churches with a professional clergy, Utah could borrow Dahlia's argument that "Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy."

What would Dahlia, ACLU and PFAW think about that?

(En Banc has a good entry on the issues raised by the case. The NYT coverage is here.)

Tuesday, December 02, 2003


In Howard Bashman's excellent "20 Questions" for Richard Posner, Posner refers to the infamous "baby-selling" article that has widely been mentioned as one reason that Posner could never be nominated to the Supreme Court:
I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.)
I was struck by this, having never read Posner's original article for myself. What is really so wrong with what he proposed? Consider all the ways that people already make money from selling children, or the means by which children are produced:
  • Adoption agencies charge a lot of money to adoptive parents -- $20,000 isn't uncommon. It's usually about half-price when the child is black or Hispanic, which, while distressing, shows that the agencies are responding to market demand. And while most agencies are technically "non-profit," some are classified as "for-profit." Even with "non-profit" agencies, people are still making a living by charging money for the transfer of children from their mothers to someone else. If that doesn't deserve the title "baby-selling," I don't know what would.

  • Sperm banks sell sperm, often charging a few hundred dollars per vial. They also typically offer the donor $50 per . . . um . . . installment.

  • People will pay several thousand dollars for a human egg donation.

  • Doctors and hospitals sell in-vitro fertilizations, which can cost $10,000 to $20,000.

  • Surrogate mothers can make tens of thousand of dollars by carrying and delivering a child that will belong to another couple.
With all the money changing hands over children and their production, I'd say that "baby-selling" is already legal in several forms. What's so bad about paying a woman not to have an abortion, as Posner suggested? In fact, why wouldn't that form of "baby-selling" be morally preferable to the other forms?

On the other hand, if we as a society are going to be so nervous about "baby-selling," then what are we doing allowing the buying and selling of eggs, sperm, surrogate motherhood, etc.? I can't think of a consistent rationale for the current state of the law here.

Scholars of Twang Track All the ’Y’Alls’ in Texas

A fascinating article titled Scholars of Twang Track All the ’Y’Alls’ in Texas. I was puzzled by this:
One traditional feature of Texas and Southern speech — pronouncing the word 'pen' like 'pin,' known as the pen/pin merger — is disappearing in the big Texas cities, while remaining common in rural areas, Dr. Tillery said. Texans in the prairie may shell out 'tin cints,' but not their metropolitan brethren.
Huh. I never knew that anyone anywhere pronounced "pen" differently from "pin." Maybe I just haven't been paying attention.

Monday, December 01, 2003

Dutton on Rosen

Definitely worth reading: Denis Dutton's essay on Charles Rosen, the incomparable classical music writer and pianist. I have only two of Rosen's books -- The Classical Style and The Romantic Generation -- and would love to get his newest book Piano Notes: The World of the Pianist. I can't though; I've put myself on a book-buying embargo until I finish the 25 books I ordered last month.