Do Not Call List

I've gotten an email recently warning as follows:

JUST A REMINDER...In a few weeks, cell phone numbers are being released to telemarketing companies and you will start to receive sale calls. YOU WILL BE CHARGED FOR THESE CALLS... To prevent this, call the following number from your cell phone: 888/382-1222. It is the National DO NOT CALL list. It will only take a minute of your time. It blocks your number for five (5) years. PASS THIS ON TO ALL YOUR FRIENDS...

That email is false. In fact, the FCC has had to issue a press release called "The Truth About Cell Phones and the National Do-Not-Call Registry." Just FYI.

The Man Nobody Knows

The weekly Coalition for Darfur post:

On February 24, 2004, an op-ed entitled "The Unnoticed Genocide" appeared in the pages of the Washington Post warning that without humanitarian intervention in Darfur "tens of thousands of civilians [would] die in the weeks and months ahead in what will be continuing genocidal destruction."

Written by Eric Reeves, a literature professor from Smith College, this op-ed was the catalyst that compelled many of us to start learning more about crisis in Darfur which, in turn, led directly to the creation of the Coalition for Darfur.

For over two years, Eric Reeves has been the driving force behind efforts to call attention to the genocide in Darfur by writing weekly updates and providing on-going analysis of the situation on the ground. As early as 2003, Reeves was calling the situation in Darfur a genocide, nine months before former Secretary of State Colin Powell made a similar declaration. In January of 2005, Reeves lashed out against "shamefully irresponsible" journalists who "contented themselves with a shockingly distorting mortality figure for Darfur's ongoing genocide." Reeves' analysis led to a series of news articles highlighting the limitations of the widely cited figure of 70,000 deaths and culminated in a recent Coalition for International Justice survey that concluded that death toll was nearly 400,000; an figure nearly identical to the one Reeves had calculated on his own.

Perhaps most presciently, on March 21st, Reeves warned that "Khartoum has ambitious plans for accelerating the obstruction of humanitarian access by means of orchestrated violence and insecurity, including the use of targeted violence against humanitarian aid workers." The following day it was reported that Marian Spivey-Estrada, a USAID worker in Sudan, had been shot in the face during an ambush while "traveling in a clearly marked humanitarian vehicle." The lack of security for aid workers has led some agencies to declare certain areas "No Go" zones or withdraw all together, leaving the internally displaced residents of Darfur without access to food, water or medical care.

And as the Boston Globe reported on Sunday, he has done it all while fighting his own battle with leukemia.

Were it not for Eric Reeves, it is quite possible that the genocide in Darfur would have gone largely unnoticed. We at the Coalition for Darfur offer him our prayers and support and express our heartfelt thanks for all that he has done to prick the nation's conscience on this vitally important issue. We hope that his courage and conviction will be an inspiration to others and that Darfur will soon begin to get the attention that it deserves.

Supreme Court opinions

Two interesting results from the Supreme Court yesterday.

Case No. 1, in which conservatives vote for the pro-gun-control position: In Small v. United States, the issue was that Gary Small had been in a Japanese prison for 3 years for illegal arms trafficking. He got out, and later bought a gun in the United States. Question: Could he be punished under 18 U. S. C. § 922(g)(1), which makes it "unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm"? The Court's liberals said "no," because "any court" didn't mean foreign courts. Justice Thomas, joined by Justices Scalia and Kennedy, dissented.

Case No. 2, in which the lineup is unusual: In Pasquantino v. United States, the question was whether a plot to defraud a foreign government of tax revenue violates the federal wire fraud statute. The majority opinion was written by Justice Thomas, finding that the wire fraud statute does prohibit such behavior. The dissenter was Justice Ginsburg, joined by Justices Breyer, Souter, and Scalia.

Both cases are useful reminders that the voting patterns of Supreme Court Justices aren't as predictable as some people seem to believe.

Divan

An old friend who grew up in the same town writes:

My Grandmother used "divan" exclusively to describe the couch/sofa. I have never heard anyone else call it that either. She was born in Oklahoma and has spent most of her life there in NW Arkansas. Hmmm . . . is there a hidden pocket of divan speakers in the hills of NWA?

Tax

A law review article:

A New Understanding of Tax

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

Michigan Law Review, 2005


Abstract:
The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's "double taxation" of savings to support their case.

Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, "when, in a taxpayer's flow of funds, ought progressive taxes be imposed?," casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent, progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals.

The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on "horizontal equity" models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not always burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax.

The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation - as it has been for centuries - but rather over what kind of consumption tax to choose. Failure to address this question head-on has led tax policy to move, seemingly inexorably, towards the wrong choice, with the fate of progressive, redistributive taxation hanging in the balance.

McCaffery always has interesting things to say. I've posted about his articles before, here and here.

Amazon

Well, what do you know. One of my law review articles is available on Amazon.com for a mere $5.95 plus shipping! (Perhaps I shouldn't mention that you can get the same article for free in PDF form here or here.)

One oddity: If you click on my name on Amazon -- as one often does when looking for additional books by the same author -- you find that Amazon has me confused with another Stuart Buck who has written such hot items as the Dzongka-English and English-Dzongka glossary, or the Bhutanese Newspaper Reader. That isn't me.

Divan

A post exploring the etymology and different meanings of the word "divan." I find this very interesting because my grandmother, who grew up as part of a homesteading family in East Texas and New Mexico ("migrant workers," they'd probably be called these days), and who lived for many years on a small Arkansas farm, always used the word "divan" to mean "sofa" or "couch." I can't recall that I've ever heard anyone else use that word, and I always thought it was some sort of rural slang. I wonder where and how she would have picked up a word of Persian origins.

The New Pope

Nolo episcopari Romae?

Impeachment of Judges

Writing in The Federalist #81, here is Alexander Hamilton explaining why the constitutional power of impeachment will prevent judges from "usurp[ing] the authority of the legislature":

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

That says nothing, of course, about whether proposing to impeach judges for exceeding their authority is wise or appropriate in any given circumstance.

Constitution in Exile

In the middle of a futuristic piece, Stuart Taylor has this pointed observation about those who believe there is such a thing as the "Constitution in Exile" movement:

This alleged agenda includes holding key New Deal laws unconstitutional, ending federal regulation of the economy in the name of states' rights, crippling state regulation in the name of property rights, and perhaps even imposing a Christian quasi-theocracy on the nation. Many liberals associate this (largely imaginary) agenda with what they call the conservative 'Constitution-in-exile movement' -- a group of not-very-powerful people whose leaders could fit into one phone booth and have little influence on any justice except (sometimes) Thomas.

Nancy Drew

An interesting article about the history of Nancy Drew. I have to say, the way that Nancy Drew is depicted pictorially has been in a steady decline -- the 2005 picture is hideous compared to the original 1930 version.

Leukemia

This is weird: Common infections blamed for childhood leukaemia.

Rome's Radical Conservative

From Michael Novak, writing in the New York Times:

Cardinal Ratzinger's selection as pope, however, has been less heartily welcomed by many commentators in Europe and the United States, who have quickly characterized him as an 'authoritarian,' a 'watchdog' and, most peculiarly, a 'neoconservative.'

Indeed. "Neoconservative" is begininning to be used simply to mean "very conservative" or "conservative whom I really dislike," as if "neo" were a prefix that did nothing more than add emphasis to a word. It's not any skin off my nose, I suppose; I'm certainly not a "neo-conservative" in the original sense, and I have no claim to ownership over the term. But I do prefer verbal accuracy. The way that "neo-conservative" is now being used indicates sloppiness and/or illiteracy.

While We Were Distracted

In 1994, a genocide took place in Rwanda and it is probably safe to say that few of us remember hearing much about it. How was it possible, we now ask ourselves, that we could have so easily ignored the brutal slaughter of nearly one million people.

A look back to those 100 days in 1994 reveals that while we may not have heard much about Rwanda, we most certainly heard a great deal about many other things.

April to July 1994: A Timeline
On April 7, 1994 Rwandan soldiers and trained militias armed with machetes unleashed a murderous campaign to destroy the minority Tutsi population.

On April 8, Nirvana lead singer Kurt Cobain was found dead in his home from a self-inflicted gun shot wound.

On April 15, an estimated 20,000 Rwandans who had sought shelter Nyarubuye Church were slaughtered by government forces and members of the Interahamwe militia.

On April 22, former President Richard Nixon died and his funeral was held five days later.

On May 5, Michael Fay, an 18 year-old US citizen, was caned in Singapore as punishment for vandalism.

In mid May, the International Red Cross estimated that 500,000 Rwandans had been killed.

On June 17, OJ Simpson led police on a slow speed chase in a White Ford Bronco.

On July 4, the rebel army took control of the Rwandan capitol of Kigali and the genocide came to an end in a country littered with nearly one million corpses.

It is widely acknowledged that the world largely ignored the genocide in 1994 and failed the people of Rwanda. A decade later, it is worth asking if our priorities have changed.

On September 8, 2004 "60 Minutes" ran a controversial story regarding President Bush's service in the Air National Guard that relied, in part, on forged memos.

On September 9, former Secretary of State Colin Powell officially declared that genocide was taking place in Darfur, Sudan.

On October 4, Romeo Dallaire, the head of the UN mission in Rwanda during the 1994 genocide warned that the world was responding to the crisis in Darfur much in the same way it responded to the genocide in Rwanda – with complete indifference.

On October 6, comedian Rodney Dangerfield died.

On January 24, 2005, Johnny Carson died.

On January 25, the UN released a report chronicling "serious violations of international human rights and humanitarian law amounting to crimes under international law"; among them the "killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence."

On March 11, Brian Nichols overpowered a deputy, stole her gun and killed three people in an Atlanta courthouse before escaping.

On March 14, the United Nation's estimated that at least 180,000 people have died in Darfur in the last year and a half.

Ten years ago, a genocide unfolded right in front of our eyes, but the media was more focused on the legal problems of various celebrities than it was on the deaths of tens of thousands of people in Africa.

And the same thing is happening today.

One has to wonder if, ten years from now, we'll be saying to one another "I vaguely remember hearing about the genocide in Sudan. It took place about the time of the Michael Jackson trial, right?"

We at the Coalition for Darfur ask you to join us in raising awareness of the genocide and to consider making a small donation to any of the organizations providing life saving assistance to the neglected people of Darfur.

Time Travel

A conversation with my 5 year old son:

Son: "I wish we could go in a rocket ship back to the beginning of the universe."

Me: "Yes, that would be neat."

Son: "But nothing was invented then! [with an air of wonderment] So I guess we would be naked!"

Me: "Hmmm."

Son: "And humans didn't exist then! So I guess we would just disappear!"


He actually had a good point: Even if time travel was physically possible, who says that you would be able to carry back things (including yourself) that didn't exist in the time you were traveling to?

Blackmun

Dan Markel has some useful thoughts on a recent (and scathing) article on Justice Blackmun and his law clerks.

Neoconservative

It's odd enough that some have taken to using the word "neoconservative" to describe Justices Scalia and Thomas. Now "neoconservative" is being used to describe Joseph Ratzinger, the newly-elected Pope Benedict XVI. (See here and here; E.J. Dionne flirts with the term here.) How utterly bizarre. It would be as if newspapers, for no apparent reason, started referring to James Dobson as a member of the Christian Social Union of Bavaria.

Oklahoma City

An interesting post on the Oklahoma City bombing.

No Child Left Behind

Quite a strong statement of support for No Child Left Behind, from Brent Staples at the NY Times:

Over the last two decades, in fact, the old-line civil rights groups have evolved into wholly owned subsidiaries of the Democratic Party. The groups are disinclined to turn on their friends - or to openly embrace even beneficial policies that happen to have a Republican face.

This posture has been painfully evident in the debate surrounding the No Child Left Behind education law, a signature Bush administration reform that also happens to be the best hope for guaranteeing black and Latino children a chance at equal education. The law is not perfect and will need adjustments. But its core requirement that the states educate minority children to the same standards as white children breaks with a century-old tradition of educational unfairness. The new law could potentially surpass Brown v. Board of Education in terms of widening access to high-quality public education.

Estate Tax

I don't see much to disagree with in Mark Kleiman's thoughts on the estate tax (here and here).

The Constitution in Exile

I note that Jeffrey Rosen, in today's New York Times piece, is still bandying about the myth that conservatives/libertarians are champions of the phrase "Constitution in Exile." He repeatedly uses the phrase "Constitution in Exile movement." And he says:

In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of "the Constitution in Exile." . . . While not all the leaders of the movement immediately embraced Ginsburg's catch phrase (Edwin Meese says that the phrase Constitution in Exile suggests incorrectly that they have retired from the field of battle), among some legal conservatives it became a rallying cry.

That is a complete misrepresentation, as far as I can tell. As David Bernstein points out in response:

I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article.

Bernstein points out further inaccuracies here.

UPDATE: Andrew Sullivan is right on when he says of the Times article, "Sunstein gets to describe himself as a moderate; while Epstein gets to see himself portrayed as a mob boss in a horror movie."

Sports

A funny post about the pointlessness of sports:

I'm specifically talking about getting some object in some pre-designated place so that my team will receive (imaginary) points, which if we end up with more than the other team, we will WIN! Wow!

Win what? Nothing but the joy of having won. Lotsa folks somehow translate this over into a feeling of superiority over the other team, as though we are somehow better than they. But so much of competitive sports, when the teams are balanced in ability as they usually are (and if they aren't the game is kinda moot), is about the luck of the bounce, the direction of the wind, and other uncontrollable and intangible things. Thus when the ball bounces one way rather than the other, makes the winning point, and the winning team screams at the other, 'You suck! We are the champions!' I am mystified by the supposed alchemy that endows this seemingly random and meaningless superiority. It's like a neighbor and myself deciding that on cloudy days I win and on sunny days he wins. So, I walk outside on a sunny day, and my neighbor appears, smiles, and says, 'You suck! I rule!' How much sense does that make?

Scalia

Worth reading: Margaret Talbot's lengthy profile of Justice Scalia.

Lacking the Political Will

In the last few days, international donors have pledged $4.5 billion in reconstruction aid to Sudan as part of the north/south peace process. And though much if this aid is nominally contingent on Khartoum's ability and willingness to end the violence in Darfur, it remains to be seen if the international community is truly willing to risk undermining the long sought peace agreement by demanding an end to the genocide.

For a year and a half, the UN and others have tread carefully, fearful that too much pressure on Khartoum would derail the north/south peace process. And Khartoum has relentlessly exploited that fear by, for instance, warning that the recent Security Council referral to the International Criminal Court "threatens Sudan's stability."

And while the world focuses on protecting the peace agreement, Darfur continues to deteriorate.

Yesterday, the World Food Program warned that, due to lack of funding, nearly 200,000 refugees who have fled into Chad risk going hungry in the coming months. And just last week,
the WFP warned that it will be forced to cut food rations for more than one million people living in the western region of Darfur, again for lack of funds.

Last Friday, UNICEF warned that an estimated four million people in Darfur will face significant food insecurity over the next 18 months because the agricultural economy has collapsed. One million children under five year-olds are already suffering from, or will suffer from, severe malnutrition.

And one day after an United Nations human rights investigator for Sudan warned that Darfur was a "time bomb" that could explode at any time, Janjaweed militia attacked and completely destroyed the village of Khor Abeche (the attack on Khor Abeche is the focus of Eric Reeves' latest analysis.)

It seems clear that the referral to the ICC was not the remedy that many in the human rights community had hoped. At the same time, calls for an increased AU force has problems of its own, judging by Charles Snyder's recent comment that "Nobody that wants to be on the ground is not on the ground."

Stopping the genocide in Darfur is going to require a dedicated and well-coordinated effort by the UN and the international community. As of yet, the political will to engage in such an effort does not exist. We at the Coalition for Darfur ask you to join us in raising awareness of the genocide in an attempt to force policy makers to seriously address this issue to consider making a small donation to any of the organizations providing life saving assistance to the neglected people of Darfur.

Should the Court Cite Foreign Sources of Law?

Orin Kerr poses an excellent hypothetical here.

Empiricism

Jonah Goldberg and Jonathan Chait have been debating over whether liberals are more "empirical" than conservatives. It all started with Chait's article in the New Republic:

Imagine that God were to appear on Earth for the unlikely purpose of settling, once and for all, our disputes over economic policy. And suppose that, to my enormous surprise, he announced that every empirical claim advanced by conservatives was correct. Cutting taxes produces such great economic growth that even the poor benefit. Privatizing or eliminating social programs like Medicare and Social Security will cause the elderly to save more money and enjoy higher living standards. Slashing regulations, by eliminating unintended side effects, actually does a better job helping those whom the regulations were intended to help than the regulations themselves. Suppose that God presented these conclusions so convincingly--if his stature alone did not suffice--that everybody immediately accepted them as truth.

How would liberals respond? No doubt by rethinking and abandoning nearly all their long-held positions. Liberalism, after all, claims to produce certain outcomes: more prosperity and security, especially for the poor and middle classes; a cleaner environment; safer foods and drugs; and so on. If it were proved beyond a doubt that liberal policies fail to produce those outcomes--or even, as conservatives often claim, that such policies hurt their intended beneficiaries--then their rationale would disappear. It may be hard to imagine liberals advocating capital gains tax cuts as a way to lift up the working stiff. But that's just because there's no evidence to show they do. If the evidence were to change, so would the liberal mindset. The point is that liberalism has no justification other than the belief that liberal policies produce beneficial outcomes.

Now imagine the opposite were to happen. God appears in order to affirm liberal precepts: Current tax levels barely affect economic incentives, social programs provide tremendous economic security at modest cost to growth, and most regulations achieve their intended effects without producing undue distortions. Would economic conservatives likewise abandon their views? Some certainly would, but a great many would not. Economic conservatism, unlike liberalism, would survive having all its empirical underpinnings knocked out from beneath it.

. . . [C]onservatism, unlike liberalism, overlays a deeper set of philosophical principles. Conservatives believe that big government impinges upon freedom. They may also believe that big government imposes large costs on the economy. But, for a true conservative, whatever ends they think smaller government may bring about--greater prosperity, economic mobility for the non-rich--are almost beside the point. As Milton Friedman wrote, "[F]reedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself."

* * *

The contrast between economic liberalism and economic conservatism, then, ultimately lies not only in different values or preferences but in different epistemologies. Liberalism is a more deeply pragmatic governing philosophy -- more open to change, more receptive to empiricism, and ultimately better at producing policies that improve the human condition -- than conservatism.

Chait then cherry-picks several examples that show specific liberals being more "empirical" than specific conservatives.

Two responses come to mind:

1. You can't say that one philosophy is more "empirical" than another without knowing what the goals of the policy are. You just can't. An analogy: Who is in the best "health": A marathon runner, a champion weightlifter, a top sprinter, or a woman who has lived to 105? You have to decide whether "health" consists of endurance, power, speed, or pure longevity. Until you make that choice, there isn't any "empirical" question that is capable of being answered.

Same for economic policy. Which is "better": (1) a policy that maximizes freedom and autonomy, or (2) one that maximizes personal security and minimizes risk? There isn't any "empirical" way to say which goal is "better." But Chait repeatedly pretends that if some conservatives prefer (1), it is only because they are unempirical as to (2). Chait is fundamentally confused here. He doesn't understand that not everyone is even trying to maximize number (2) in the first place.

Nor does he understand that if conservatives prefer goal (1) while liberals prefer goal (2), both sides have made ideological choices that have nothing to do with "empiricism." A conservative could with equal confusion say that "liberals are unempirical" because they prefer their own set of policies even if it is conclusively demonstrated that conservative policies are empirically the best at maximizing freedom.

2. Who says that liberals consistently value empiricism, come what may? My impression is that many liberals, like many conservatives, are highly resistant -- to the point of being immune -- to any empirical evidence that they dislike. Let someone come out with a study showing that the death penalty deters murder (e.g., Cass Sunstein and Adrian Vermeule), or that charter schools are an improvement (Caroline Hoxby), or that school busing doesn't improve student performance (be sure to read the story of James Coleman), or that lower taxes improve economic growth (Gwartney and Lawson), or that school vouchers have any advantage at all (Paul Peterson et al.), or that the welfare state encourages broken families, and liberals hop out of the woodwork to take potshots at the study.

After all, no study is beyond all criticism. Maybe the sample size wasn't large enough, or there was selection bias, or there was omitted variable bias, or there were too many cross-correlated variables, or there's another data set that is somehow better than what the researcher used, etc., etc., ad nauseam. Do liberals mention such criticisms because they are all hard-headed empiricists who demand the utmost rigor out of every study that comes their way? Maybe a few of them are. But most liberals want the world to agree with their ideological conclusions, and are determined to ignore or discount any counter-evidence.

And to be fair, the same goes for many conservatives' attitudes toward studies involving global warming, racial profiling, a few studies showing the opposite conclusion on the minimum wage (Card and Krueger, for example) and the relationship between taxes and economic growth, or articles about the French health-care system. I'm not trying to argue that conservatives are generally better at being empirical. (To do so, I would have to cherry-pick examples as Chait did.)

Worth Reading

Worth reading today:

• Mark Noll, The Evangelical Pope?
  
  
• Linda Greenhouse, The Evolution of a Justice. An excerpt:

  Harry Blackmun served another 21 years on the court after Roe v. Wade, retiring in 1994 at the age of 85. By then, he had long since become an icon of feminism. Just as he was reviled by opponents of abortion, he was treated worshipfully by women's rights groups. Yet Blackmun came slowly to the cause of women's equality, and his papers show just how improbable an icon he was.

New Blog

My friend, classmate, and co-worker Dan Markel has started a new blog here. The initial post describes it thus:

The long-term mission here is to mimic the format and the success of the Volokh Conspiracy. But with at least one twist: first, there will probably be more (or only) center-left commentary. Doesn't that make it seem like Crooked Timber or Balkinization or Left2Right? Sort of, but this blawg will mostly be by law people, and mostly quite junior, including some who might not even be prawfs yet.

Dan is a very bright guy, and his blog should be well-worth reading.

Photo

I just received this photo, which I bought from Ebay. It's very intriguing. A teacher is sitting with a large group of elementary schoolkids. There are three rows of white children, and one row of black children -- which implies that they all went to the same school. In front of the teacher is a placard. The date written on it: May 11, 1886. A few other words are written too: "Emery Building, B Primary." Unfortunately, I don't know if that is enough to identify where the school actually was.

Minimum Wage

An interesting first-hand look at the effects of minimum wage laws.

Competing Principles

One of the odd things about the Schiavo affair is the argument that "if you care about federalism, you wouldn't favor Congress's involvement in granting federal jurisdiction for Schiavo's parents to have one more day in federal court." One sees this argument in many contexts: "If you really opposed abortion, you'd support the death penalty for women who have abortions," or "if you really wanted to clean up the environment, you'd agree to ban all automobiles," or "if you really supported bringing democracy to Iraq, you'd support war in about 100 other countries," or "if you really supported free speech, you wouldn't be in favor of hate crimes laws." In short, "If you really believed in Principle X, you'd follow that principle to all extremes without ever letting another principle override it."

But that sort of reasoning is often wrong. People often accuse their opponents of being hypocrites when, in fact, they may simply have been balancing competing principles. We all do this constantly. And the mere fact that someone reaches a different balance than you, or that they decline to treat one principle alone as being absolute, does not prove that they are being hypocritical.

Example: Do you believe in free speech? Yes? Well, then, do you believe that someone can post your social security number, checking account and credit card information, and your complete medical history on the Internet? No? Then you have obviously reached a balance between the competing principles of free speech and privacy. Could someone else reach a different balance? Sure. Would that person have a right to criticize you for being a hypocrite ("if you really believed in free speech, you'd stick to that principle even at the expense of some other interest")?

Of course not. We all place differing degrees of importance on various principles, and there is hardly anyone who treats any principle as literally never worth violating.¹ There are some, for example, who say that the overriding principle of federalism should have governed the Schiavo case. They are entitled to that opinion. But they themselves would probably violate the principle of federalism if the countervailing interest were strong enough. If Florida, for example, were taken over by a rogue regime that was literally planning to launch a nuclear attack on Washington, D.C., hardly anyone would maintain that the federal government should not interfere due to federalism principles.

That's a ridiculous example, one might say. Perhaps it is. But the point is that even the most devout adherents to federalism -- or virtually any other principle -- will find that they are nonetheless willing to strike a balance when a competing principle becomes strong enough.

And so, we have the crux of the matter. It wasn't that those who wanted to preserve Schiavo's life are necessarily fair-weather federalists [update: I should say, "hypocrites."]. It was that in their estimation, preventing Schiavo's forced starvation was important enough to justify overriding the judgment of state courts. This doesn't justify a charge of hypocrisy, unless they -- alone out of all people on earth -- had previously maintained that federalism is so important that it automatically overrides any and all other competing principles in every conceivable situation. As no one on the pro-Schiavo side had ever made such an absolutist contention, that side was merely balancing competing principles, just as all people do in opining about nearly all political issues.


UPDATE: Let me put it this way: Let's suppose that a generic liberal values federalism at 3 (out of 10) and a generic conservative values federalism at 8. Do we know that the liberal or conservative are hypocrites for seemingly switching their position on federalism in the Schiavo debate? No. The liberal might simply think that the value of keeping Schiavo alive, given her circumstances, was worth no more than 2; thus, the value of federalism trumps. The conservative who desired congressional involvement might have simply thought that the value of protecting Schiavo's life was worth a 9 or 10, thus outweighing the value of federalism in this particular case. Thus, it is possible that neither one is being a hypocrite at all: They are merely placing different values on the competing interest of keeping Schiavo alive.

^<1>There are a few exceptions, of course, such as the principle that we shouldn't torture an innocent child to death even though it would hypothetically save a city from perishing, etc., etc.