Wednesday, July 31, 2002

There are still a lot of readers who are getting here via John Leo's column. The post he references is here. Feel free to read the rest of the page, though!
Howard Kurtz takes on the blogging phenomenon:
Bloggers are busting chops, big time.

The latest evidence: Some big media organizations are now quoting their criticism of other big media organizations.

It's called influencing the debate, in real time.
He continues in that vein, quoting liberally from John Leo's recent column.
Also worth checking out is the July/August 2002 edition of Books and Culture. Clayton Cramer (who has been instrumental in bringing down Michael Bellesiles) has a review of Joyce Malcolm's new book Guns and Violence. And John McWhorter (one of my favorite public intellectuals) has a review of Ray Jackendoff's Foundations of Language, which "criticizes the 'syntactocentrism' of Chomskyan work."

Tuesday, July 30, 2002

Want to trade in a futures market where your earnings will depend not on hog bellies but on who controls Congress after the 2002 elections? The University of Iowa College of Business has set up just such an artificial market here.

Monday, July 29, 2002

The LA Weekly has more on the possible connection between the Sept. 11 hijackers and the Oklahoma City bombing. I don't know what to make of it, but this is interesting stuff.

Saturday, July 27, 2002

Welcome, readers of U.S. News & World Report. The post you're probably looking for is here. (To John Leo: If you're reading, thanks for the link.)

Friday, July 26, 2002

Here's an excellent column by Jonathan Rauch on the abuses of eminent domain by local and state governments, which often seize private land in order to hand it over to other private parties who will supposedly use the land for "better" purposes. There having been some belated criticism of now-President Bush's successful land grab for a baseball stadium several years ago, Rauch responds with this memorable line: "It's a scandal, all right -- the scandal being not that Bush and friends broke the rules but that they played by them. The scandal, in other words, is the rules." Right on.

Rauch also mentions the yeoman efforts of my friends at the Institute for Justice, who have been among the most stalwart defenders of small property owners against such abuses. One of their cases involved Donald Trump's attempt to have a little old lady's home condemned so that one of his casinos would have extra space for limousine parking. That sort of stuff really goes on here in America.
My friend and fellow HLSer Mike Adams just provided me with an updated link to a page of his that has all the David Rosenberg quotes. No need to use Google's cache function. Thanks Mike!
Spectrum Regulation

This is not strictly brand-new news, but the FCC started a Spectrum Policy Task Force last month to reexamine how the spectrum is regulated. Several public workshops are planned for the near future, and many interesting comments have already been posted on the FCC's website.

There is a big push in among certain people (including me) to de-regulate more areas of the spectrum by allowing free and open usage, possibly subject to technological constraints that would minimize interference. I was pleasantly surprised to find that (among many others) Craig Mundie, a top Microsoft executive commenting on behalf of Microsoft, supported such deregulation as well. (His remarks can be found here.) Other comments that are worth reading, if you're interested in that sort of stuff, include those of Thomas Hazlett, Gerald Faulhaber and David Farber, Timothy Shepard, Kevin Werbach, and David Reed.

(Via SATN).

Thursday, July 25, 2002

Since my post about Harvard Law professor David Rosenberg was so popular, I managed to scrape up (again from Google's cache function) 3 more pages of Rosenberg quotes culled from classes over the years. In his 1997 Torts class, he had quite a few things to say:

"It's not meanness to ridicule stupidity."

"I never complain about the rich getting more since I aspire to their ranks."

"Fluoride is a commie plot."

"I have no interest in how you turn out. I'm not going to make any more money because of it and that's all I care about."

"I assume that the admissions committee only let in those of you who are Commies."

Then in the Fall of 2000 class, he had this to say, among other things:

"I mean every word I've uttered about these pieces of crap on the faculty."

[on gifts for professor] "I don't like that, I prefer direct monetary payments...[or] take the money and give it to the Contras, or some other good cause."

"Microsoft did no wrong. I say this because there are people writing down what I say and putting it on the Web and I want Microsoft to feel good about hiring me as a consultant."

And in his Spring 2000 class, he said this:

"Isn’t everybody a member of the N.R.A.?"

"What do they call them, um, human...rights? I know all about that stuff. I listen to National Propaganda Radio every morning when I’m brushing my teeth."

"You know me, I love Roman law. I don’t think we should go back to it. But I still like the idea of lions."

"Constitutional law ends the ability of synapses to fire."

"Say you site a nuclear power plant in Brookline beside Dukakis’ house. Some of us might even pay to see that, but it is not an optimal location."

"Alan Keyes and compound interest are the driving forces in my life."
For news about religion in general, Christianity Today has one of the best weblogs out there. Trouble is, there is not a single link on which you can click every day to get the blog. You have to go here, and then click on the link to the day's entries.

Wednesday, July 24, 2002

Nice to see that someone noticed my post below on Father Neuhaus as the Proto-Blogger!

As most of you are probably aware, Glenn Reynolds and others have recently had a flurry of posts on the 9th Amendment. Jeff Cooper correctly criticizes Justice Scalia for failing to live up to his textualist philosophy when it comes to that amendment, which explicitly envisions the possibility of unenumerated constitutional rights. He points to Scalia's dissent in Troxel v. Granville, a parents' rights case where Scalia thought it was dispositive that the Constitution simply did not enumerate a "right of parents to direct the upbringing of their children."

But I think Cooper goes a little too far in saying that "very few purported practitioners of strict constructionism are willing to adhere to their principles when it comes to the Ninth Amendment." Without mentioning any of these "very few" practitioners who are intellectually consistent, Cooper implies that there are none. But there is at least one very prominent person who fits the bill -- Justice Thomas.

Consider Thomas's concurrence in the same case, Troxel v. Granville. Thomas not only recognizes the right of parents to bring up their children as they see fit, but argues that it should be explicitly protected by "strict scrutiny," the most rigorous constitutional review available. (In that two-paragraph opinion, Thomas also manages to question two other lines of precedent, which must be a record even for him: He suggests that the enforcement of unenumerated rights under substantive due process might be invalid, and then suggests that the proper doctrine for such claims would be the Privileges or Immunities Clause of the 14th Amendment.) In short, Thomas is not necessarily to be grouped with Scalia on this issue.

I've been thinking a little more about Steven Den Beste's argument that international "law" doesn't really exist because there is no "consent of the governed." I absolutely agree, but I think there is a paradox lurking under there that I only hinted at in my earlier post.

Consent of the governed is important when deciding whether the legal system in general is legitimate. But only then. Consent of the governed (in the sense of unanimity) is pretty much irrelevant when deciding whether any particular law is legitimate. In fact, the only point of law is to coerce behavior that otherwise wouldn't occur, or to prevent behavior that otherwise would occur. We don't need laws requiring breathing; we all do that anyway, and a law would be superfluous. A law banning faster-than-light travel would be similarly superfluous. The only reason to have a law is that it requires behavior by persons who in all likelihood do not "consent" to that particular law. In other words, in order for there to be any point to a "law," there must be some entity that has the right and power to use force on unconsenting persons.

This ties in with Max Weber's famous definition of the "state": "[W]e have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory."

I'm actually not that familiar with Weber or his followers, so I don't know if any of them have extended this concept to "international law" as well. Nonetheless, I'll do it here: A "law" is a command issued by an entity that has a monopoly on the legitimate use of physical force. But there is no such entity on the world stage -- not even the United Nations can claim to be the sole legitimate user of force as between nations. Because there is no entity that legitimately use force on each and every nation that dissents from a given international "law," there can be no true international "law" in the first place. The only way ultimately to force behavior on a dissenting nation would be war.

That's what I think at present, although I will freely admit that the philosophy of international law is somewhat new to me and my opinions are subject to modification.

Tuesday, July 23, 2002


The Associated Press ran an interesting story on the Reagan administration's strategizing during the Bork hearings:

Reagan aide wanted to use Heston to save Bork
Associated Press

SIMI VALLEY, Calif. – The Reagan administration, struggling to save the doomed Supreme Court nomination of Robert Bork, considered calling in movie star Charlton Heston to give him a boost, newly released presidential papers show.

The strategy of using Mr. Heston, who played Moses in The Ten Commandments, was spelled out in a 1987 memo titled "The Borker" and released Friday. The writer, White House staffer Jeffrey Lord, suggested airing more television ads aggressively promoting Judge Bork and taking his critics to task.

"Cut one spot with a great voice [e.g. Charlton Heston]. Theme: Robert Bork has been smeared. The victim of vicious special interest groups," Mr. Lord wrote.

The memo and others were among 150 pages of Reagan papers released Friday at the Ronald Reagan Presidential Library. The papers deal with presidential appointments.

I'm a little late in noticing it, but Cardozo law professor Marci Hamilton has an excellent defense of federalism on Findlaw. An excerpt:
There has never been a time when the cry for unlimited congressional power has rung so hollow. Nor has there been a time when the lax oversight of Congress's power appeared so foolhardy.

Think of the crucially important national issues on Congress's plate right now: The war on terrorism, corporate and accounting disasters affecting millions of stockholders, and a stock market lurching wildly up and down from day to day.

Think about how difficult each of these issues, alone, will be to address - and then about how difficult and important it is to successfully address them all. Then ask yourself if Congress can give these huge, decidedly national problems the serious, sustained, not-just-for-the-cameras attention they deserve - and at the same time also police every regional, state-level, and local problem in the country too.

Over the past years, federal and state lawmaking has been unnecessarily redundant. The federal government passed the Americans with Disabilities Act, and meanwhile the states have their own disability laws. The federal government passed the Violence Against Women Act, and meanwhile the states have their own policing and policing policy decisions to make. The federal government passed the Gun-Free School Zones Act, and states continue to regulate both gun ownership and schools.

So what are my thoughts on blogging lately, you ask? Or perhaps you don't. I'll answer anyway.

As a studious observer of blogs for the past 9 months, I've come to a few conclusions about blogging. Here they are, in no particular order:

  • Things change really quickly in blogosphere time. When I started blogging way back last fall, Glenn had just started; now, of course, he's seen as the Father of Us All. And most of the blogs I now consider worth reading didn't even exist back then. I recall chatting with Eugene Volokh at his annual Halloween party, and he was inquiring about this new phenomenon that he had just heard about -- blogging. Now, of course, he has one of the best blogs out there. And other worthwhile blogs have come and gone in the meantime. I wonder what blogs I'll be reading a year or two from now.

  • As I see it, there are only four types of bloggers that are worth reading (or perhaps I should say, four qualities that make any given blog worth reading):

    1) Bloggers with outstanding wit (Lileks comes to mind);

    2) Bloggers who supply a plethora of links to stories about a vast array of subjects (Instapundit, etc.);

    3) Bloggers who concentrate on a particular issue and can be counted on to track down all the news on that issue (Howard Bashman for appellate law; Amy Welborn on the Catholic scandal, Joanne Jacobs on education, etc.); and

    4) Bloggers who simply have interesting and incisive thoughts about various subjects (any and all of the above, plus many others such as the Volokhs).

    None of these categories/qualities are mutually exclusive, of course, nor are my examples exhaustive in the least. I think, though, that what I enjoy the most is the latter quality.

  • Why do people have blogs that merely detail their personal activities from day to day? Such blogs are almost entirely worthless drivel, an opinion that would remain the same even if I knew the blogger personally. It takes an extraordinary talent -- again, Lileks comes to mind -- to make an interesting story out of quotidian details.

  • It’s been said before, but it deserves to be said again: There are many, many smart people out there who don't work for the mainstream media.

  • Some people can, by themselves, do a better job than most newspapers at selecting which stories, out of all the day's news, are worth reading.

  • Official news stories and op-ed writers often deserve a resounding debunking. And they usually get it, thanks to blogging.

  • Out of the blogs that I enjoy reading, a disproportionate number are written by lawyers. I don't know exactly why this is, but I have three theories: 1) Legal training imparts qualities that make a blogger successful -- training in argument and logic, an interest in public affairs, etc. 2) The sorts of people who go to law school in the first place already have qualities that make them good bloggers. 3) There's actually nothing about lawyers that makes them good bloggers; I just happen to prefer lawyer-written blogs because I'm a lawyer myself. Anyone have any thoughts on this?

  • Most blogs are, in a somewhat disturbing way, written in a format that perfectly fits our modern age (I include my own here). Almost every thought is in soundbite form, at most a few paragraphs long, perfect for readers (and authors) with attention spans too short to bother with longer and more complex thoughts. A crude and over-generalized history of the printed word over the past few hundred years would look like this: Books > pamphlets > articles > shorter USA-Today-style articles > blog postings.

    Of course some subjects deserve no more than a couple of paragraphs or sentences. But what are we doing to ourselves here? Are we encouraging habits of mind that are too jumpy, too nervous, too accustomed to flittering from one topic to another like a bee in clover? By reading blogs (creating them is a different matter), are we undermining our own abilities to truly comprehend a lengthy and detailed factual description or argument? I'm not trying to be the Neil Postman of blogging here, but someone should think about this issue.

Monday, July 22, 2002


Has anyone noticed that Father Richard Neuhaus's "Public Square" column in the superlative First Things magazine is essentially a printed version of a blog? And he's been doing it since 1992, long before the blogging craze, typically writing 20 to 30 pages every month of short essays and little blurbs describing his recent readings. His range of knowledge and his acerbic wit are rarely equalled, which is why I consider him one of the top public intellectuals writing today (no matter where he ranks on Dick Posner's famous list).

Sunday, July 21, 2002


The New York Times' prominent treatment of an article on civilian casualties in Afghanistan makes me want to ask: Has there ever been another war in history where civilian casualties were so few that journalists could track down virtually all of them individually? Civilian casualties are a tragedy, to be sure, but all wars have them, and most wars have them to a much greater extent. And there's a danger here.

Due to a cognitive bias called the "availability heuristic," people tend to overestimate the prevalence of anything when they can readily think of even one example. Thus, when people are asked whether more words begin with "r" or have "r" as the third letter, people wrongly say that more words begin with "r" -- because it is easier to think of such examples.

As I argued in an earlier web article, police shootings in New York were falling at the time of Amadou Diallo's shooting, but the publicity given that shooting made people think that shootings had risen. The same could happen here: Precisely because the number of civilian deaths in the Afghan war has been so low, journalists can more readily track down individual examples and publicize them, which in turn could make people think (erroneously) that civilian casualties are more prevalent now than before.

The post below reminds me of one of my favorite scenes from a Hitchcock movie (which I transcribed a while back, knowing it would be useful at some point in the future):

In Hitchcock’s 1938 movie The Lady Vanishes, the heroine Iris Henderson is traveling on a train in the same compartment as an old lady. When the old lady disappears (it later turns out to be connected with a spy ring), Iris scours the train in search of her. She meets a German doctor named Dr. Hartz, who accompanies her on her search for the old lady. But when everyone denies having seen the old lady, Dr. Hartz theorizes that some psychological hallucination must have caused Iris to imagine the old lady’s existence.

But then, finally, Iris finds one woman who admits to having seen the old lady. Iris then confronts Dr. Hartz with this new witness:

“You’ll have to think of a fresh theory now, Doctor.”

"It is not necessary,” Dr. Hartz responds briskly. “My theory was a perfectly good one. The facts were misleading."

Sounds familiar, doesn’t it? If the theory differs from the facts, blame the facts, or at least anyone who seeks them out.

I find it extremely interesting that Glenn's traffic figures (thanks for making them public!) are so heavily weighted towards both weekdays and working hours. The last chart on this page shows that his weekday traffic is about twice as high per day as his weekend traffic. And the next-to-last chart on the same page shows that his traffic picks up at about 7 am, peaks between 2 and 3 pm, and then declines the rest of the day.

So it would seem that most people are reading Glenn's site at work, not at home. (Unless he has a lot of readers who work the night shift and weekends, that is.) I wonder a few things:

1. To what extent are his numbers representative of web traffic in general? (There's probably no way to know such a thing, given that it appears to be hard enough to get individual web pages to report honest traffic numbers.)

2. What do these figures imply about the effect workplace computers have on productivity?

3. Why don't as many people read stuff on the weekends? That's the one time when they wouldn't have to worry about their boss peering over their shoulders. Because of slower connections at home? Well, it doesn't take a T3 line to download Glenn's page or any other news-related page. What's going on here?

Saturday, July 20, 2002

Thanks to Glenn for the mention. He had several posts about my previously-short-lived blog back in October; it created quite a little controversy at the time. I found his old posts via Google's cache of the archive, but if you go directly to his old archives at, your browser is redirected within a few seconds to his new URL. So I thought I would take the liberty of reprinting what Glenn said back then, just for old time's sake. :)
THE BUCK STOPS FOR GOOD? Stuart Buck has a blog entitled The Buck Stops Here. I like it, read it, and have a link to it (on your left). He's also law clerk to a federal judge in DC. Now he has an item on his page saying that "people" at his workplace object and say that it looks like partisan political activity.

I think this is ridiculous. (Is that petty tyrant and judicial character assassin Ralph Mecham behind this?) When I was a law clerk for a federal judge, I wrote opeds and letters to the editor and no one objected. Lots of law clerks do the same, and write law review articles, etc. Since when is this sort of thing "partisan political activity"? It should be obvious (even without the prominent disclaimer) that Buck isn't speaking for his employer, whom he never even identifies by name anyway. And it's not as if he's talking about cases he's working on. Heck, a lot of his stuff isn't even about the law. So what's the beef here? * * *

Then there was this:
THE FEDERAL JUDICIARY isn't doing very well in its "defenders of freedom" role. First it was Ralph Mecham's sleazy Internet spy campaign. Now it's Stuart Buck's website being shut down. Free cruise-ship travel from interest groups for judges: OK. Opinion writing by law clerks: verboten! Yeah, that makes sense. And we rely on these guys to protect our freedom?
And finally this:
THE PENDING DEMISE OF STUART BUCK'S WEBPAGE due to judicial fiat has made me wonder (well, actually it was an email about the demise of Stuart Buck's webpage from Professor Brannon Denning that started me wondering). Judges for years have been telling us how "independent" they are from their law clerks. This is one reason why the law clerk hiring process has avoided any significant outside scrutiny.

Yet the judges of the DC Circuit apparently feel that their independence is so questionable that they must silence a law clerk's weblog for fear that his musings might, somehow, reflect on them.

But if law clerks are so influential, surely the process of choosing them -- now pretty much based on the whim of the judges -- deserves more attention, and perhaps accountability. Perhaps they should be subject to Senate confirmation? Or perhaps they should be professionalized via a standardized merit selection process?

I've always opposed this sort of thing. But, then, I didn't realize that law clerks' opinions were so earthshaking in their impact.
Here's an interesting, though brief, article on an effort by some colleges on Indian reservations to set up wireless networks using spread spectrum technology -- in defiance of the FCC. More power to them.

Friday, July 19, 2002

Any Inventors Out There?

Just about every cordless phone comes with a button on the charger that you can push when the phone is lost. The phone beeps until you find it and push a button. An elegant solution to a widespread problem -- losing one's cordless phone.

So why haven't any companies put the same function on remote controls? (Maybe someone has, but I'm not aware of it.) I have several remote controls -- one for the TV, one for the receiver, one for the VCR, one for the DVD player, and one general all-purpose remote. With two small children in the house, chances are that at least one remote will be missing at any given time. Why, oh why, isn't there a little button on the DVD player or receiver, etc., that will make the remote control emit some sort of noise?
According to this article, Eritrea has "ordered the closure of all Christian churches that are not Orthodox, Roman Catholic, or Lutheran." Ever wonder if the Eritreans might laugh at the American legal system, which considers it a fearsome constitutional violation if someone says a short prayer at a football game or uses the words "under God" in a voluntary pledge at school? When it comes to problems between government and religion: we have molehills; the rest of the world has mountains.

Thursday, July 18, 2002


Why do online newspapers charge so much for archived articles? The New York Times, for example, charges $2.95 [!] for a single archived article, although it graciously allows bulk rates (if you purchase 25 archived articles, you pay a mere $1.05 each). The Washington Post's price structure is similar: $2.95 for a single article, with the best deal being $19.95 for 25 articles -- 80 cents each.

That's a lot of money. $2.95 is much, much more than the price for a newstand copy of an entire issue of either newspaper, which would contain several dozen articles, printed on paper to boot. Is the marginal cost of providing online access to one archived article that much more than the marginal cost of providing an entire printed copy of a day's paper? If not, why do they charge so much for a single article?

A guess would be that, thanks to copyright laws, newspapers hold a monopoly over their articles, and therefore act like monopolists usually do -- reduce output in order to increase prices and maximize profit. Is that what's happening here?

Wednesday, July 17, 2002

I'm fascinated, as are many people, by the odd searches that lead various Internet surfers to my page. My bio page, for example, is titled "Who Am I?", and about twice a week, every week, someone gets to that page by doing a google search for -- you guessed it -- "who am I." Why do so many people search for that non-descript phrase? I have no idea.