Juan Cole and Schiavo

Juan Cole thinks that those who want to preserve Terri Schiavo's life are akin to Muslim theocrats. Here are his thoughts:

The Schiavo Case and the Islamization of the Republican Party

The cynical use by the US Republican Party of the Terri Schiavo case repeats, whether deliberately or accidentally, the tactics of Muslim fundamentalists and theocrats in places like Egypt and Pakistan.

Already we have a misleading omission: Plenty of Democrats and disability-rights groups supported the congressional bill that granted Schiavo an extra day in federal court. (And though it's probably no use, I'd like to protest the too-common use of the word "cynical" to mean "evoking feelings of cynicism in other people.")

These tactics involve a disturbing tendency to make private, intimate decisions matters of public interest and then to bring the courts and the legislature to bear on them. President George W. Bush and Republican congressional leaders like Tom Delay have taken us one step closer to theocracy on the Muslim Brotherhood model.

Wow. That's quite an accusation. But let's clear up yet another error before seeing how Juan Cole plans to substantiate his thesis: It is quite misleading to suggest that Congress was "mak[ing] private, intimate decisions matters of public interest and then [bringing] the courts and legislature to bear on them." The Schiavo case had already been litigated numerous times, and was the subject of actions by the Florida legislature. The Schiavo case was an issue for legislatures and courts long before the Congressional Republicans even heard of it.

The Muslim fundamentalists use a provision of Islamic law called "bringing to account" (hisba). As Al-Ahram weekly notes, "Hisba signifies a case filed by an individual on behalf of society when the plaintiff feels that great harm has been done to religion." Hisba is a medieval idea that had all but lapsed when the fundamentalists brought it back in the 1970s and 1980s.

The relevance of this is not established. In no stage of the Schiavo case has any "individual" been able to file a lawsuit "on behalf of society" to vindicate the harm "done to religion.

In this practice, any individual can use the courts to intervene in the private lives of others. Among the more famous cases of such interference is that of Nasr Hamid Abu Zaid in Egypt. A respected modern scholar of Koranic studies, Abu Zaid argued that, contrary to medieval interpretations of Islamic law, women and men should receive equal inheritance shares. (Medieval Islamic law granted women only half the inheritance shares of their brothers). Abu Zaid was accused of sacrilege. Then the allegation of sacrilege was used as a basis on which the fundamentalists sought to have the courts forcibly divorce him from his wife.

Abu Zaid's wife loved her husband. She did not want to be divorced. But the fundamentalists went before the court and said, she is a Muslim, and he is an infidel, and no Muslim woman may be married to an infidel. They represented their efforts as being on behalf of the Islamic religion, which had an interest in seeing to it that heretics like Abu Zaid could not remain married to a Muslim woman. In 1995 the hisba court actually found against them. They fled to Europe, and ultimately settled in Holland.

Cole's comparison is irrelevant. The Abu Zaid case: A stranger is allowed to file a lawsuit based purely on his personal religious feelings ("sacrilege") in order to forcibly divorce a man from his wife. The Schiavo case: Allowing the parents (not a stranger) to seek rehearing of their brain-damaged daughter's claims in federal court before the daughter's estranged husband can proceed to have her starved to death. There are no similarities between those two cases whatsoever, except in the highly abstract sense that religious motivations might have played a role in forming some people's beliefs about life/death issues (just as religious beliefs informed some people's beliefs about civil rights, abolition, and other important moral issues).

One of the most objectionable features of this fundamentalist tactic is that persons without standing can interfere in private affairs. Perfect strangers can file a case about your marriage, because they represent themselves as defending a public interest (the upholding of religion and morality).

And again, nothing about the congressional legislation allowed "perfect strangers" to "file a case" about Terri Schiavo. Her own parents' legal interests are at issue here, not the general public's.

But the most frightening thing about the entire affair is that public figures like congressmen inserted themselves into the case in order to uphold religious strictures. The lawyer arguing against the husband let the cat out of the bag, as reported by the NYT: ' The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water. "We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said. '

In other words, the United States Congress acted in part on behalf of the Roman Catholic church. Both of these public bodies interfered in the private affairs of the Schiavos, just as the fundamentalist Egyptian, Nabih El-Wahsh, tried to interfere in the marriage of Nawal El Saadawi.

This is ridiculous. Even if you are quoting statements from legislators themselves, it is a very risky enterprise to ascribe a motive to a legislature.¹ But here, the only evidence is one statement made by one citizen after Congress passed the bill in question. It sheds absolutely no light on Congress's intent. Indeed, anyone who has been following the Schiavo case knows that the parents' lawyers have been trying every tactic and argument that they can imagine, hoping that something will stick. So the lawyer's statement probably isn't even a good indication of his own motivations. The allegation that Congress was acting "on behalf of the Roman Catholic Church" is even more absurd than the old fear that John F. Kennedy was taking orders from the Pope.

Republican Hisba will have the same effect in the United States that it does in the Middle East. It will reduce the rights of the individual in favor of the rights of religious and political elites to control individuals. Ayatollah Delay isn't different from his counterparts in Iran.

This is complete hyperbole. It doesn't even make sense to describe the Schiavo case as involving "religious and political elites" controlling "individuals." Schiavo is a brain-damaged woman whose estranged husband and parents disagree over whether she should be starved to death. Up until very recently, all of the relevant "political elites" (esp. judges) favored the husband. Congress -- including a lot of Democrats -- happened to favor giving the parents an extra day in court. No matter who "wins" (and it looks like it will be the husband), Schiavo's fate has always been controlled by someone else who has won the approval of "political elites."


¹The best analysis of this problem was a Scalia dissent from a 1987 case:

For while it is possible to discern the objective "purpose" of a statute (i.e., the public good at which its provisions appear to be directed), or even the formal motivation for a statute where that is explicitly set forth (as it was, to no avail, here), discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible [p637] motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

Putting that problem aside, however, where ought we to look for the individual legislator's purpose? We cannot, of course, assume that every member present (if, as is unlikely, we know who or even how many they were) agreed with the motivation expressed in a particular legislator's preenactment floor or committee statement. Quite obviously, "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." United States v. O'Brien, 391 U.S. 367, 384 (1968). Can we assume, then, that they all agree with the motivation expressed in the staff-prepared committee reports they might have read -- even though we are unwilling to [p638] assume that they agreed with the motivation expressed in the very statute that they voted for? Should we consider postenactment floor statements? Or postenactment testimony from legislators, obtained expressly for the lawsuit? Should we consider media reports on the realities of the legislative bargaining? All of these sources, of course, are eminently manipulable. Legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted. Perhaps most valuable of all would be more objective indications -- for example, evidence regarding the individual legislators' religious affiliations. And if that, why not evidence regarding the fervor or tepidity of their beliefs?

Having achieved, through these simple means, an assessment of what individual legislators intended, we must still confront the question (yet to be addressed in any of our cases) how many of them must have the invalidating intent. If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility, or were simply attempting to "balance" the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill's sponsor is alone enough to invalidate it -- on a theory, perhaps, that even though everyone else's intent was pure, what they produced was the fruit of a forbidden tree?

Because there are no good answers to these questions, this Court has recognized from Chief Justice Marshall, see Fletcher v. Peck, 6 Cranch 87, 130 (1810), to Chief Justice Warren, United States v. O'Brien, supra, at 383-384, that determining the subjective intent of legislators is a perilous enterprise.

Links

I found this post very amusing.

On a very different note, this page is a bit . . . odd. I don't know whether it's supposed to be serious.

Dallas Morning News

Rod Dreher is continuing to make the Dallas Morning News an interesting read on Sundays. Today, he's gotten Eric Brende to write a short article about his experiences living in an Amish community, and Randall Sullivan to write a longer article about the hostility to religion that he experienced in intellectual circles after writing a book that takes certain mystical stories seriously. Brende's full story is told in his book Better Off: Flipping the Switch on Technology, and Sullivan's book is The Miracle Detective: An Investigation of Holy Visions. Both books are fascinating reads.

Levitt Book

In the mail: A galley of Steven Levitt’s forthcoming book Freakonomics: A Rogue Economist Explores the Hidden Side of Everything, co-authored with journalist Stephen J. Dubner, who wrote this NY Times profile of Levitt in 2003. Levitt is an economist at the University of Chicago; he has won the Clark Medal, given every two years to the most promising economist under 40. The book’s website is here.

Levitt is not at all occupied with traditional questions of economics. At one point, the book quotes him as telling Dubner, “I just don’t know very much about the field of economics. I’m not good at math, I don’t know a lot of econometrics, and I also don’t know how to do theory. If you ask me about whether the stock market’s going to go up or down, if you ask me whether the economy is going to grow or shrink, if you ask me whether deflation’s good or bad, if you ask me about taxes – I mean, it would be total fakery if I said I knew anything about any of those things.”

So what does he study? All sorts of unique questions, which he often analyzes using unique sources of data. In one instance, he obtained a notebook containing the complete financial records of a drug gang spanning several years, and he found that most drug dealers live with their mothers because they don’t actually make that much money. In his most (in)famous article, he and another economist theorized that crime declined in the 1990s because of Roe v. Wade (as the theory went, abortion was more often procured by women in poverty, and thus eliminated the fetuses most likely to grow up to be criminals). He developed an algorithm that helped identify Chicago public school teachers who were cheating by altering their students’ answers on standardized tests. He’s also studied questions such as, “How do you know when sumo wrestlers are cheating?,” and “Do real estate agents have the proper incentive to help you sell your house?”

All of these questions, and more, are explored in the book. I’d describe the unifying theme as: “The effects of incentives – whether endogenous or whether created by legal and political institutions – on human behavior.”

I was intrigued by his analysis of campaign finance. The book begins by noting the conventional wisdom that “money buys elections.” Sounds plausible, but Levitt has shown it to be basically false. He found a unique way to study the question: Examine all the instances since 1972 (nearly 1,000 nationwide) in which the same two candidates faced each other in successive elections, and then find out whether the amount of money affected the results.

To quote the book: “Here’s the surprise: the amount of money spent by the candidates hardly matters at all. A winning candidate can cut his spending in half and lose only 1 percent of the vote. Meanwhile, a losing candidate who doubles his spending can expect to shift the vote in his favor by only that same 1 percent. What really matters for a political candidate is not how much you spend; what matters is who you are. . . . Some politicians are inherently attractive to voters and others simply aren’t, and no amount of money can do much about it.”

After all, this result isn’t that counterintuitive: Candidates who win often may have raised more money, but that’s because winning candidates are attractive to donors for the same reasons that they are attractive to voters. And donors like to feel that they are part of a winning team. (It’s not that Dennis Kucinich lost the Democratic primary because he wasn’t given enough money; it’s that Kucinich wasn’t given any money because donors thought he was too much of a fruitcake to win the Democratic primary.)

The one thing that threw me off a bit was that while the book is ascribed to Levitt as the lead author and Dubner as the co-author, the book never (as far as I can tell) uses the first person. There are no sentences that say, “What occurred to me as I studied this question,” etc., or “It was only when I thought of X that I realized that the solution lay,” etc., etc. Everything is written as if Dubner is the sole author. Indeed, each of the chapters begins with an excerpt from Dubner’s NY Times article about Levitt (which no doubt led someone to offer Dubner a book contract). Seeing Levitt so often discussed in the third person was a bit disorienting, given that he is supposed to be the lead author. The book does do a great job of showing Levitt’s way of thinking, but it doesn’t have his authorial voice.

But that’s just a minor quibble. I found it a fascinating and engrossing book, appealing to anyone who is intellectually curious. Definitely worth buying when it is released next month.

Dowd

I really didn't get this bit from a recent Michael Kinsley column:

When the New York Times anointed Maureen Dowd as a columnist nine years ago, I gave her some terrible advice. I said, "You've got to write boy stuff. The future of NATO, campaign spending reform. Throw weights. Otherwise, they won't take you seriously." The term "throw weights" had been made famous by a Reagan-era official who said that women can't understand them -- whatever they are, or were.

Dowd wisely ignored me and proceeded to reinvent the political column as a comedy of manners and a running commentary on the psychopathologies of power. It is the first real innovation in this tired literary form since Walter Lippmann. Eighty years ago, Lippmann developed the self-important style in which lunch with a VIP produces a judicious expression of concern by the columnist the next day about developments in danger of being overlooked. Most of today's columns are still variations and corruptions of this formula. But Dowd is different, and she is the most influential columnist of our time.

The most influential columnist? Says who? Her only schtick is to come up with snarky insults, often repeating the same play on words ad nauseam. The effect can be occasionally amusing, but influential? Really?

Internet access

I can’t imagine a good reason that law school administrators would go out of their way to offer free Internet access in law school classrooms. A few people might have legitimate reasons for using the Internet while in class – receiving an emergency email, looking up a case or law review article – but those very rare legitimate uses are surely swamped by the number of students who will simply end up reading the news, playing online games, chatting with friends, looking up the stock market, reading blogs, or looking at any of the millions of non-law-school-related websites. A law school might as well pay for a poker game and a clown act to take place in the back of a classroom, as well as handing out free newspapers for students to read during class.

UPDATE: Will Baude has a fairly good response here, pointing out some other legitimate uses of the Internet during class. That said, I'm skeptical that "fact-checking" occurs all that often, and I don't know how it could be said in the abstract that any extra "research" done on the spot is likely to be useful. I'm also skeptical of this: "the costs of distraction and goofing off are mostly internal." That depends; a student who is looking at a flashy website (of any kind) might easily distract 5 or 10 students behind him. Baude is correct that "students can distract themself just fine without the internet," but that's not an argument that it's consistent with a law school's pedagogical mission to fund even more extravagant distractions.

Campaign Finance Reform

Apparently, we need campaign for "campaign finance reform" finance reform. (See here and here.)

Too Long

Also from the recent question and answer session with Scalia:

Mr. Hamilton:
We will conclude with Steve Lagerfeld. This will be the last question.

Steve Lagerfeld:
There's a long article in a recent Harvard Law Review, in the Harvard Law Review recently.

Justice Scalia:
They're all long.

Steve Lagerfeld:
They're all too long, I'll tell you that.

Justice Scalia:
Or they all seem long anyway.

I can't disagree.

Scalia on the "Living Constitution"

From the transcript of a recent speech by Scalia:

What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it's hard to talk people out of it: the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is the equivalent of an anthropomorphism equivalent to what you hear from your stock broker, when he tells you that the stock market is resting for an assault on the eleven-hundred level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete's sake, it's a legal document, and like all legal documents, it says some things, and it doesn't say other things.

Reminds me of what Clarence Thomas said in 2000 in a question-and-answer session after a speech in Oklahoma City:

One unnamed state politician asked, "Isn't the Constitution a living, changing document?"

Thomas answered: "His may be living and breathing, but mine's inanimate."

Brain Drain Essay

I haven't had much time for blogging lately, as work is piling up. In lieu of blogging today, here's an essay that I wrote last year for an essay contest about immigration (sponsored by The Economist). Hope you like it:

******************************************

In Praise of the Brain Drain

My wife’s family is a giant brain drain. Though my father-in-law and his several siblings now live in North America or Europe, they grew up in a different world: the Afghanistan of the 1950s and 1960s.

Nature was not kind to Afghanistan. The terrain is mostly desert surrounded by mountains. The result is beautiful in a sense, but beauty doesn’t make a land easy to farm, or to navigate by water or railway. In the 1950s, most Afghans scraped a bare existence out of the land, anxious for their very survival. Food was scarce: An uncle of mine remembers standing in line to buy bread, then standing in another line to buy sugar. Even in Kabul, the largest city and the home of my wife’s family, the streets had open sewers and the infant mortality rate was 1 in 7.

Nepotism was all-important. You could hope for success, perhaps even for a scholarship to study overseas, if you or your family knew the king (Mohammed Zahir Shah), or the members of his family who filled out most of the key governmental positions.

My father-in-law’s family didn’t. This only spurred them to seek education by any means possible. My wife’s oldest aunt was one of the first women in Afghanistan to graduate from college, where she studied mathematics and physics. Following the trail she had blazed, another aunt studied to become an obstetrician, while my father-in-law and two of his brothers went to medical school. (Another brother was still in secondary school at the time.)

But they weren’t satisfied in Afghanistan. Even as educated people, it was difficult to find any opportunities for advancement. My father-in-law remembers, for example, that when he had finished medical school and was supposed to be trained by older and more experienced doctors, they were reluctant to train him because of professional jealousy.

One by one, then, my wife’s family all emigrated to various Western countries. My wife’s oldest aunt, for example, married an Afghan who had studied at Cornell, and together they emigrated to Canada, where he became a college professor. My wife’s obstetrician aunt left for Germany, where she still lives. Another uncle studied voraciously from the time he was 12, all in the hope of winning a scholarship to study in America as an exchange student. The studying paid off: At age 16, he won a scholarship as the top scoring student on a national exam. He ultimately earned a PhD here, and became a science professor.

Another uncle’s story is the most dramatic. After graduating from medical school, he practiced briefly in the Herat province in western Afghanistan. But the Communists had invaded, and were making an especial effort to kill well-educated Afghans who had relatives in Europe or the U.S. – precisely his situation. He decided to flee. This meant joining a group of about 20 people who had hired a guide to take them on foot over the mountains to Iran. (This was a particularly nerve-wracking enterprise, given that some guides would take a fee for their services and then earn a second fee by ratting out to the Communists.) They walked over the mountain passes by night, hiding from Soviet bombers during the day. At long last, he made it to Iran, where he later emigrated to California.

And there is my father-ln-law, who came here in 1971 with nothing more than a suitcase in his hand. He was eager to work in an environment where he could actually learn from older professionals, and once here, busily started relearning medical terminology in English. After seven long, penniless years – he often depended on his landlady for the very food he ate – he was finally able to pass the medical boards. He now has a successful family practice in Atlanta.

* * *

This is what a brain drain looks like from the inside. But the issue is much broader than my family’s experience. Official statistics show that in 2003, the United States was the home to nearly 7.4 million non-citizens or naturalized citizens with at least a bachelor’s degree (well over a third have graduate degrees). The brain drain phenomenon has caused many people to anguish over the countries that lose their smartest and best-trained citizens.

But are these worries accurate? Not necessarily. In the first place, if you took a skilled Ghanan medical researcher living in the United States, and then sent him home to Ghana, there is no guarantee that he would still be a skilled medical researcher. Many developing countries simply don’t yet have the resources to provide places where aspiring researchers or professors can work. And had he not come to the United States, he might never have become a researcher in the first place. As my wife’s uncle says, it is well-nigh impossible to direct your energies toward advanced education if your main worry is finding clean water and food.

Indeed, some governments are so oppressive that they might threaten the very lives or careers of skilled professionals. Think of the many Jewish scholars (Albert Einstein, for example) who came to the United States in the 1930s. Or think of the Taliban, who would have forced my wife’s obstetrician-aunt to quit working altogether. Allowing – nay, encouraging – such people to relocate could not possibly harm the repressive regimes from which they flee.

Second, economists such as Oded Stark, Hillel Rapoport, Michel Beine, and others have begun to demonstrate – both theoretically and empirically -- that in many cases countries may actually benefit from allowing a certain number of smart people to leave! This seems counterintuitive, but it makes some sense once you realize that if a few people are highly motivated to pursue education because of the prospect of greater rewards elsewhere, this can help create a culture that values education more broadly, particularly as to the people who remain behind. What’s more, emigrants who achieve success abroad often directly help their home countries – whether by returning at a later date, sending money home, participating in business or trade networks, or participating in conferences or other means of educating people back home.

What of the very poorest countries with the fewest educated people to spare? It is hard even for the most optimistic economist to believe that it is beneficial for a Third World village to lose its only doctor. But the solution most likely to work – outright banning the migration of skilled professionals – is also the most discomfiting. A ban means forcing someone to live somewhere that he doesn’t like and to work at a job that he wishes to leave. It means telling an obstetrician like my wife’s aunt to stay in Afghanistan, even at the cost of trading her career for life in a burka.

The most promising solution, then, might lie in the generosity of wealthier countries. As the New York Times recently said, Western countries should “reimburse Africa's health and educational systems for the cost of poaching their professionals, and to greatly increase the financing and technical help for Africa's health systems . . . .” Indeed, if the talented immigrants from a Third World country are vocal enough, they may be able to create political pressure for the United States (or other Western countries) to increase foreign aid.

Finally, when you consider people who move from one western country to another, a brain drain may have a singularly important benefit: Countries may start to compete for skilled workers, creating a “race to the top” by encouraging research and innovation.

After all, educated professionals do not take a step as drastic as emigration on a whim. They emigrate because they expect to find greater opportunities elsewhere. Some wish to have a salary that matches their education and training: As quoted in Time Europe, “I pay more for my cleaning lady than a researcher gets,” said Pascal Degiovanni, a theoretical-physics researcher in France. Others wish to find a culture that encourages innovative thinking. Or, in some cases, they might wish to escape prejudice: Angelika Amon, for example, hales from Austria but now heads a lab at MIT. She desires to return, but – as she told The Scientist– “People complain about the role of women in science here and I tell them you don't know what it's like in Europe. It's very hard to find a female in a position of power in European science.”

If countries find that many of their best talents are emigrating elsewhere, they will start competing to offer a better climate for success. Indeed, this has already begun to happen. As Time Europe recently reported, Europe is starting to offer researchers “better funding, better facilities, better support for entrepreneurship and competition, and an overall better environment for world-class science.” The EU has announced its “Sixth Framework Programme,” which is designed to help with taxes, visas, or other needs of European emigrants who wish to return home. Science Foundation Ireland has been awarded massive budget increases, while Germany’s “Max Planck Institutes” provide university-based opportunities for German post-docs to return to Germany and continue their work at research centers.

* * *
A brain drain can benefit everyone involved – the professionals themselves; the countries who admit them; and in many cases, even the countries who lose professionals. Besides, it is what brought my wife’s Afghan father and American mother together. I can’t argue with that.

Boogers

This is verbatim:

My three-year-old daughter blew her nose this morning. My mother-in-law said, "Are you sick?"

"No, I have boogers," came the response.

"Oh," my mother-in-law said. Then, to find out the extent of my daughter's knowledge, she asked, "What are boogers?"

My daughter thought for a moment, and then said, "Trash from my brain."

Supreme Court case

Exciting news this week: I was on the winning side in a Supreme Court case.

The case was Ballard v. Commissioner of Internal Revenue. What happened here was that several taxpayers were sued for civil fraud and tax evasion in the Tax Court. The Tax Court -- for the past 20 or so years -- has had this weird process by which a lot of cases are tried before a so-called "Special Trial Judge." The Special Trial Judge conducts the trial, views the witnesses, and writes up a lengthy recommended decision. That decision is then approved by a regular judge of the Tax Court, who invariably issues a final decision that says, "The Tax Court hereby adopts the opinion of the Special Trial Judge," or words to that effect.

And I do mean "invariably" -- out of something like 880 cases reported in the past 20 years, every single one begins with that boilerplate language and then reproduces what purports to be the Special Trial Judge's opinion. (That's what led Judge Cudahy -- who dissented in the Seventh Circuit case -- to say, "I find this extraordinary unanimity telling. . . . I say with confidence that this degree of unanimity is not only unusual, but impossible in a system of arms-length appellate style review involving 39 independent individuals.")

In this case, a couple of Tax Court judges revealed that the Tax Court had actually reversed the Special Trial Judge's opinions -- but without releasing the Special Trial Judge's original report and recommendations. The parties were upset at this lack of transparency, and asked to see the original report of the Special Trial Judge. The Tax Court refused, and appeals ensued.

Because of a statute peculiar to this situation, appeals from a Tax Court decision go the appeals court in which the taxpayer resides. In this case, there were multiple taxpayers living in different states. As a result, there were 3 appeals from the same Tax Court case. My former law firm handled the 5th and 11th Circuit appeals, while another law firm handled the 7th Circuit taxpayer's appeal.

We won the Fifth Circuit case on factual sufficiency grounds. But the other two circuits went the other way on the facts, and rejected the taxpayers' arguments that the original report should be produced under the Tax Court's own rules, various statutes, and the Constitution. Both sets of taxpayers petitioned the Supreme Court, and I helped draft the cert petition for the 11th Circuit taxpayers (the Ballards).

The Supreme Court granted both cert petitions (as I announced here), consolidated the cases, heard oral argument from Stephen Shapiro, and just this week issued a 7-2 decision (written by Ginsburg) in favor of the taxpayers. (The dissenters were Rehnquist and Thomas).

You can find some interesting analysis of the Supreme Court's decision here, here, and here. You can also find the lower court decisions and some of the briefs here.

New guitar pieces available

I just put up a recording that I made (around 10 years ago) of Fernando Sor's Variations on a Theme by Mozart. It can be heard here. I also added my recording of William Walton's Five Bagatelles here. Check it out.

Implicit Association Test

Researchers have come up with a test that is supposed to reveal hidden or unconscious biases. Alex Tabarrok describes it:

The Implicit Association Test is revolutionizing the study of prejudice and bias. The basic idea is simple, the test taker is asked to categorize a series of faces, hitting a right hand key for a white face and a left hand key for a black face. Then the taker must similarly categorize a series of words as good or bad, words like wonderful, nasty, peace, hate etc.

Now here is where it gets interesting. The next list contains both faces and words and the test taker is asked to hit a right hand key if the word is either good or the face is white or to hit a left hand key if the word is either bad or the face black. Finally, the same task is performed but now the test taker must categorize together good words and black faces and bad words and white faces. The test taker is asked to do the test as fast as possible.


Bias is revealed, so the argument goes, if response time is faster when good words must be paired with white faces and bad words paired with black faces than the reverse. Call it the Blink, Blink, Bias test.

Now before you object, it has been shown that the biases revealed by the test do correlate well with policy preferences and a wide variety of conscious and unconscious actions. Also the order of the two important tests, whether you hit the right or left hand keys etc. can all be varied with no change in results.

I'm just not sure about the last sentence there. When I take the test, as I've done on two separate occasions, the first half is easy, because none of the classifications have changed. Right finger = black; right finger = negative words; left finger = white; and left finger = positive words. Your brain settles into the pattern of knowing which finger goes with which concept.

But for the second half of the test, things are reversed. I found this very confusing, and indeed, while I had made no mistakes whatsoever on the first half of the test, during the second half I made several mistakes that actually classified a black face as white or vice versa. For most of the items flashed on the screen, I had to take an split-second to think, "Hold on, is that the right finger or the left finger?"

It seems inevitable to me that when the test switches around which finger goes with what concept, people are going to be slower and make more mistakes, if only because they now have to learn a new pattern.

That's why I wonder what would happen if the test itself was reversed. What would happen if the first half had people classifying black faces and positive concepts by using the same finger, and then during the second half switched things around so that white faces were paired with positive concepts? If the order makes no difference, why is the test always in the same order (i.e., white is paired with positive first)?

Passing as Black? Or White?

A researcher uncovers the fact that a nineteenth-century writer -- Emma Dunham Kelley-Hawkins -- who had been thought of as "black" was actually "white." She describes her discovery as involving a choice between two alternatives:

"At first, I wondered if Kelley-Hawkins and her family were only 'passing' as white."

vs.

"How have her overwhelmingly 'white' texts successfully passed as black for so long in the absence of any corroborating historical data?"

Question: What is the difference between a "black" person who has enough white ancestry that she can "pass as white," and a "white" person who only appears to be a "black" person who has enough white ancestry that she can pass as white? On what basis does anyone say that the former person is really black while the latter is really white? I don't get it.

Tax

Three Views of Tax

EDWARD J. MCCAFFERY
University of Southern California - Law School; California Institute of Technology

February 2005

USC Law, Legal Studies Research Paper No. 05-3

Abstract:
Traditional tax policy has been locked in a seemingly all-or-nothing debate between two apparent extremes, income and consumption taxation. But there are three choices of a comprehensive tax system, not two. This is because, under progressive rates, the two canonical types of consumption tax (prepaid and postpaid) are not equivalent, as the traditional view of tax would have them be. Adding in a distinct third view of tax makes clear that the best system for effecting liberal redistribution is not an income tax at all but a specific form of a consumption tax, a consistent progressive postpaid one. And this is, in large part, because such a consumption tax best gets at the yield to capital, in just the way ordinary moral intuitions want to get at it.

Telecom

Did Mandatory Unbundling Achieve Its Purpose? Empirical Evidence from Five Countries

JERRY A. HAUSMAN
Massachusetts Institute of Technology (MIT) - Department of Economics; National Bureau of Economic Research (NBER)
J. GREGORY SIDAK
American Enterprise Institute (AEI)

MIT Department of Economics Working Paper No. 04-40

Abstract:
In this article, we examine the rationales offered by telecommunications regulators worldwide for pursuing mandatory unbundling. We begin by defining mandatory unbundling, with brief descriptions of different wholesale forms and different retail products. Next, we examine four major rationales for regulatory intervention of this kind: (1) competition in the form of lower prices and greater innovation in retail markets is desirable, (2) competition in retail markets cannot be achieved with mandatory unbundling, (3) mandatory unbundling enables future facilities-based investment (stepping-stone or ladder of investment hypothesis), and (4) competition in wholesale access markets is desirable. We proceed by testing empirically the major rationales in the United States, the United Kingdom, New Zealand, Canada, and Germany. For each case study, we review the mandatory unbundling experience with respect to retail pricing, investment, entry barriers, and wholesale competition. We review the lessons learned from the unbundling experience. We also identify which rationales were incorrect in theory and which rationales were correct in theory yet were not satisfied in practice. For the second category of rationales, we attempt to provide alternative explanations for the failure of mandatory unbundling to achieve its goals.

Jerry Hausman and Greg Sidak are two highly-prolific scholars of the telecom industry, and their study should be worth reading.

New Dallas Newspaper Feature

Rod Dreher of the Dallas Morning News has introduced a new Sunday section called "Points."

Points is dedicated to publishing challenging essays, editorial features and commentaries that are more cutting-edge than what some readers of America's daily newspapers may be used to. We want to shake things up, and be as stylish, witty and surprising as we can while doing it.

Today's Points cover story asks a provocative question—" Is Dallas good for smart people?" —that gets to the heart of our mission. We put the query to three of Big D's best-informed and most opinionated intellectuals, and they offered answers that should get our readers debating.

Today's Points features an interview with Malcolm Gladwell, as well as the above-mentioned debate on whether Dallas is a friendly place for smart people. Virginia Postrel has a provocative take on that question:

Four years ago, I told my New York literary agent that I was moving from Los Angeles to Dallas. He replied, "You have my condolences."

* * *

The professional intellectual could do a lot worse than Dallas, however. You could, for instance, be stuck in the provincial ghettos of New York or San Francisco. There you'd have lots of other writers to talk to. The newspaper would report publishing gossip as major business news. You'd go to book parties and free lectures. You'd know who was arguing with whom about what.

But unless you traveled a lot, you'd have no idea what the rest of American culture is like. Reporters in New York have called me up to ask about the business significance of Whole Foods Market and the cultural meaning of the Left Behind series–both ancient news everywhere but The New York Times. New York is an intellectual cave, and San Francisco is even worse.

If your job is to analyze the society in which you live, Dallas is in fact a fine place to be. Live here and you won't believe nonsense like David Brooks' claim in The Atlantic that "In Red America the self is small. ... In Red America there is very little one-upmanship." You'll know that this part of Red America throbs with ambition. Dallas remembers what it was like to be poor and insignificant, and it wants to be rich and important. Nobody builds a megachurch by being humble.

It was over a year ago that Rod first told me that the Dallas Morning News was thinking about launching a new Sunday section, and that they were considering him for the job. I'm pleased to see the plan come to life.

Stuart Buck

Benton

I just noticed this interesting and funny Will Benton post that turns a riff on annoying morning radio shows into a discussion of public policy about the inner city.

Stuart Buck

Eric Clay

Kay Daly examines Judge Eric Clay's jurisprudential faults in this essay. Clay is a Clinton appointee to the Sixth Circuit.

I'd add something that Daly didn't mention. When I clerked for Judge David Nelson on the Sixth Circuit, there was a huge en banc case involving the constitutionality of the Ohio motto: "With God All Things Are Possible." Judge Nelson wrote a very witty and wry opinion upholding the motto. (See particularly section II.D of the majority opinion, section III, footnote 9, footnote 13, footnote 14, and footnote 18 and the accompanying text.)

Judge Clay concurred for one reason alone:

CLAY, Circuit Judge, concurring. I find much to recommend in the reasoning of both the majority opinion and the dissenting opinion even though the two opinions purport, in many ways, to be unalterably opposed to one another. * * *

I concur in the majority opinion, not because I necessarily embrace all of its reasoning, but because the Supreme Court has, by implication, approved for public enshrinement the national motto of "In God We Trust" by denying certiorari with respect to two of the three cases of our sister circuits challenging the motto where certiorari was sought and where the constitutionality of the national motto was upheld against challenges based on the Establishment Clause. See Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert. denied, 517 U.S. 1211 (1996); O'Hair v. Murray, 588 F.2d 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). Because I do not find the import of the Ohio motto at issue in this case, when considered in context and with reference to both its literal and symbolic meanings, to be significantly distinguishable from the national motto, I do not believe this Court could logically disapprove of the Ohio motto on establishment of religion grounds so long as the national motto passes constitutional muster. And again, the Supreme Court, by failing to disapprove the national motto, has clearly signaled, at least by implication, that the national motto is not at odds with constitutional principles.

As I explained here, a Supreme Court denial of certiorari in no way implies that the Supreme Court approves of the lower court's opinion. This principle is as well-established as anything can be about the law.

Stuart Buck

Good Resource

If you're ever looking for a historical publication by the U.S. Commission on Civil Rights (i.e., back to the late 1950s), look no further: The University of Maryland Law School's library has put up hundreds of PDF copies of them here.

Stuart Buck

Microsoft Word

Why is it impossible to make the cut-and-paste function work correctly in Microsoft Word? Why does the pasted text often get reformatted in something that looks totally unlike anything else?

For example: Just now, I had two documents open. In both, the default font is Times New Roman, 12 point. I selected text from one document and pasted it into the other. It should have stayed Times New Roman, 12 point, right? Wrong. The last paragraph mysteriously turned into Verdana font, 10 point. I have never used that font for anything, and it certainly isn't a default anywhere. This isn't the first time. On other occasions, Microsoft Word has turned the pasted text into bold print, turned the last paragraph into a bullet point, etc.

Why would Microsoft Word be incapable of the simple action of pasting something without totally screwing it up?

Stuart Buck

International Law and the Death Penalty

Laurence Rothenberg points me to his law review article on the impropriety of allowing international law to influence death penalty decisionmaking.


Stuart Buck

Roper v. Simmons

In his dissent yesterday in Roper v. Simmons, Scalia makes some good points about the Court's highly selective use of international law (purportedly to interpret the American constitution):

The Court begins by noting that “Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470, entered into force Sept. 2, 1990], which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” * * *

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.

* * *

It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,” ante, at 18, gives little comfort.

* * *

More fundamentally, however, the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law – including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. . . . Since then a categorical exclusionary rule has been “universally rejected” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” * * *

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution’s requirement that “Congress shall make no law respecting an establishment of religion . . . .” Amdt. 1. Most other countries – including those committed to religious neutrality – do not insist on the degree of separation between church and state that this Court requires. For example, whereas “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions,” . . . , countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that “the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding.” . . . England permits the teaching of religion in state schools. . . . Even in France, which is considered “America’s only rival in strictness of church-state separation,” “[t]he practice of contracting for educational services provided by Catholic schools is very widespread.” . . .

* * *

The Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. * * *

It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War–and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists – a legal, political, and social culture quite different from our own. If we took the Court’s directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge’s ruling that was legally incorrect. * * *We would also curtail our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.

So the Court has taken into account the European distaste for using the death penalty on convicted brutal murderers. But, after all, Europeans are not uniformly opposed to all forms of killing. I wonder what the Court might someday make of the fact that the Netherlands sometimes allows terminally ill children to be killed, potentially up to the age of 12? (Perhaps these beliefs can be reconciled: If a terminally ill child manages to commit a brutal murder at age 11, then his or her life must be preserved as long as possible.)


Stuart Buck