Sunday, August 31, 2003

A Good Film Composer

I found a new film composer that I like a lot: Jan K.P. Kaczmarek. He's a Polish lawyer-turned-composer who has written the scores for films such as Unfaithful, Washington Square,1 and The Third Miracle. My wife and I just rented the latter -- an excellent movie, by the way -- which is how we discovered Kaczmarek.

He has a well-put-together website, and each page plays a clip from one of his scores. My favorite clip so far is "Farewell" from The Third Miracle, which can be heard on both this page and this page. It's a straightforward piano piece -- lots of block chords with seconds and sixths thrown in -- and is quite lovely.

In fact, I just spent a couple of hours transcribing the entire piece onto some staff paper so that my wife or I can play it on the piano. (For all I can tell, you can't buy Kaczmarek's sheet music anywhere.) The melody and bass weren't too hard to transcribe, but it took quite a few hearings to get all the inner voices.

Anyway, check out Kaczmarek's oeuvre. As Aaron Copland once said, "Sometimes in the middle of a concert of new works in New York, I say to myself, 'What's all the fuss about? The boys in Hollywood do this better every day in the week and think nothing of it.'"2

1 Washington Square is a remake of William Wyler's classic film The Heiress, for which Aaron Copland wrote an excellent score. In fact, he won the 1949 Oscar for "Best Scoring of a Dramatic or Comedy Picture," despite the fact that the studio had replaced Copland's title music with a sappy French love song. In describing this ignominious replacement, Andre Previn writes: "It begins with music under the credits; music that is slick, pretty, and utterly vapid. Then, suddenly, approximately two minutes along, there is a gear shift, and Copland's music takes over, spare and angular and gorgeous. It's like suddenly finding a diamond in a can of Heinz beans." Yes, indeed.

2 The Copland quote comes from David Raksin, "Talking Back: A Hollywood Composer States Case for His Craft," New York Times, Feb. 20, 1949; reprinted in the New York Times Encyclopedia of Film, vol. 5 (New York: Times Press, 1984).

How to Be Rich

Don't have siblings. And go to church.

So says this Wash. Post. article describing a couple of new studies:
Observant but tactless people occasionally ask me: If you're so smart, why aren't you rich? After reading two new papers by Ohio State University sociologist Lisa A. Keister, I now know why.

I'm not an only child. And I don't go to church regularly.

Keister, an expert on how families accumulate wealth, has found that having brothers or sisters is likely to cost you money over the course of your lifetime -- and not merely because you inherit a smaller slice of the family fortune. On the other hand, attending religious services (regardless of your religion) seems to be positively associated with acquiring wealth, holding constant the other factors that typically influence net worth.

In the latest issue of Demography, Keister reports that every additional brother or sister significantly diminishes an individual's total accumulated assets as an adult. She found that people with one sibling have, on average, a net worth of about $62,000. "Add another sibling, you go down to about $49,000, add another it goes down to $40,000, then to $24,000," she said. And pity those among us with seven or more siblings: Their average net worth is only $6,000. (My guess is that buying all those Christmas and birthday presents is what's keeping them light in the wallet.)
Maybe if you come from a family of practicing Catholics -- lots of children and unwavering church attendance -- it all balances out.

Saturday, August 30, 2003

City Comforts

David Sucher has several interesting items up at City Comforts. There's this posting about the universality of people's preferences for particular types of landscape and urban design.

And then there's this question:
Where are the land use LAW blogs?
For most people that's not exactly front-and-center as an issue of great concern. In fact some might say "Thank goodness!" I do understand.

* * *
As, to my mind, land use and environmental law encapsulates some of the most interesting, intriguing and relevant areas of the law, I wonder why no one is blogging it? Rhetorical question of course but if I am wrong, which I hope is so, and someone out there is doing it, please let me know.

And in fact what's even more puzzling (because a bit more realistic,) I don't see law bloggers (cursory review I concede) addressing the subject at all.
Well, I would love to do more blogging about local land use law. You could put a Ten Commandments monument in every public building in the country, and it still wouldn't have as much real-world effect on as many people's actual lives as do the land use regulations in any single small town or village.

But the problem is, I don't know that much about it. And the main reason for that is local land use law is so . . . local. While I can look up federal and state laws with a few clicks of a mouse via LEXIS, I just don't know how to even begin looking up and keeping tabs on even a fraction of the local laws and regulations that affect land use.

Friday, August 29, 2003

Why Intellectuals Hate Capitalism (and Electoral Politics)

Bob Nozick theorizes that intellectuals feel snubbed by capitalism because they view themselves as being the most accomplished and valuable members of society, yet rather than reward those who accomplish most, capitalism rewards those who best meet the market demands of others. Hence their resentment.

I found a parallel dynamic in college and law school. All of my professors tacitly disdained politicians and the modern political process. Their disdain clearly emanated from their conviction that it was they, the professors, that should wield power. Only because our democracy was broken, or a sham, or in the pocket of corporate interests, were mediocrities like George Bush, Trent Lott, and Orrin Hatch chosen to lead our country.

As students return back to school, now is a great time to encourage them to read this article. Nothing will better help them see through their professors contempt for traditional values and institutions than a thorough appreciation of their professors' embittered psyches. Do the world a favor, send a link of the article to a student near you. Do the world another favor, and send a link to everyone who reads or listens to journalists.

Read the thing yourself. It's fascinating.

Thanks to Moe for the link.

Wednesday, August 27, 2003

Tushnet on Thomas

Via Lawrence Solum, here's a link to Mark Tushnet's new article Clarence Thomas's Black Nationalism. It's an interesting read. I found this passage particularly remarkable:
Probably because of the legacy of Justice Thomas’s bitter confirmation process, it is quite hard to locate serious academic commentary on Justice Thomas’s Supreme Court opinions that is even passingly dispassionate or written by someone without an obvious ax to grind.76 Justice Thomas’s disparagement of liberal elites, then, is only what they deserve for their disparagement of him.

76. [SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS 61 (1999)] may well be the only example of an extended analysis of Justice Thomas’s work that is reasonably dispassionate.
I could scarcely believe my eyes when I read the above. I re-read it several times in context, but still could detect no hint of sarcasm, no hint that Tushnet was here restating Thomas's own views. Tushnet really seems to be dismissing almost all previous scholarship on Justice Thomas -- the vast majority of which is quite negative -- as having an "ax to grind," as well as agreeing that Justice Thomas has every right to be dismissive of liberal elites.

This is quite intriguing, considering that Tushnet himself once wrote an article arguing that Justice Thomas should be impeached for lying at his confirmation hearings, and then suggested in the alternative that "citizens should not regard cases decided by the Supreme Court by a vote of five to four, with Thomas in the majority, as law at all." (See Mark V. Tushnet, Clarence Thomas: The Constitutional Problems, 63 Geo. Wash. L. Rev. 466, 477 (1995).)

UPDATE: I've now exchanged emails with Mark Tushnet, and he says I can quote him:
Well, maybe I've mellowed! * * * Another possibility is that there's a difference between scholarship about his confirmation hearings (the article cited) and scholarship about his Supreme Court opinions (to which the paper refers). I do think that that scholarship is almost entirely divided between stuff written by sycophants and stuff written by people who can't take anything he says seriously.
And this from a second email:
I do think that the distinction between writing about the confirmation hearings, etc., and writing about the opinions is important. When I wrote about the confirmation hearings there weren't that many (interesting) Thomas opinions to discuss (I think -- I'd have to go back and check to be sure), and now there are.

Incidentally, I'm going to begin the material on Thomas that I'm about to write with something like this: It's nearly impossible to find anyone who is dispassionate about Justice Thomas. The legacy of his bitter confirmation hearings remains strong. But, taking his work on the Supreme Court on its own terms, I think that what he has had to say about the Constitution is certainly more interesting than Justice Scalia's work and probably is more likely to make a permanent contribution to constitutional law -- if Thomas can suppress his occasional impulses to imitate Scalia's "take no prisoners" style and instead continues to write with the restraint that is more typical of Thomas opinions.
Tushnet adds the usual scholarly disclaimer that he may not hold to this particular wording in his forthcoming book.


Via The Corner, a sad story from England:
Thomas was a highly articulate child, well-spoken, and without the usual local slur. He was overweight. He was easier with adults than children, and more confident around girls than lads. He preferred the Human League to Eminem. And because of this he was bullied, relentlessly. And because of that, on the afternoon of July 2, he took an overdose of painkillers and died later that day. He was 11 years old.
* * *
Sandra is still weaving together the details of incidents that her son blurted out to her with the stories that other parents and children have told her since his death. But it would appear that, travelling to a secondary school in a new area alone, with older children, Thomas experienced a new level of persecution. "Kids pulled his tie so tight it nearly strangled him," she recalls. "They'd tease him about not having fancy gear. They'd call him ugly. He was buying ciggies and handing them out at the bus stop so that he'd be left alone. But after Christmas he tried to give up, and when he didn't have cigarettes he'd get slapped across the face.

"No one wanted to play with him. No one wanted to be his friend. He got friendly with this one other lad and then he was accused of being gay. He just couldn't respond in the way that other kids expected him to."
* * *
Some smart-alecky and snarky thoughts come to mind here:

1. If you ever needed proof of the doctrine of original sin, look no further. With no training in evildoing, and despite the best efforts of their parents and teachers to civilize them, children still manage to be among the most hateful and mean creatures on earth. The only reason that children don't start nuclear wars amongst themselves is because they're not smart enough.

2. Don't you feel sorry for the homeschooled children who miss out on all the valuable socialization that goes on amongst school-kids?


Tuesday, August 26, 2003

In the Bag

Terry Teachout writes today:
Time again for "In the Bag," my personal variant of the old desert-island game, featuring a twist of the wrist. In this version, the emphasis is on immediate and arbitrary preference. You can put five works of art into your bag before departing for that good old desert island, but you have to decide right this second. No dithering—the death squad is banging on the front door. No posturing—you have to say the first five things that pop into your head, no matter how dumb they may sound. What do you stuff in the bag?

As of this moment, here are my picks. I don’t mind admitting (well, maybe a little bit) that one of them is kind of dopey. Nevertheless, I swore I’d tell the whole truth and nothing but, so here goes nothing:

BOOK: Walker Percy, The Moviegoer

CLASSICAL MUSIC: Sir William Walton, First Symphony

PAINTING: John Singer Sargent, A Study from Life (Egyptian Girl)

MOVIE: Michael Caton-Jones, Doc Hollywood

POP ALBUM: The Band, The Band

Your turn.
Alright, then. Here goes:

BOOK: Sheldon Vanauken, A Severe Mercy

CLASSICAL MUSIC: Aaron Copland, Third Symphony

PAINTING: da Vinci, Mona Lisa. [Trite, I know, but I don't know any other names of paintings, at least none that pop into my head.]

MOVIE: Frank Capra, It's a Wonderful Life

POP MUSIC: Sixpence None the Richer, Divine Discontent


Law professor Paul Campos has an interesting take on the Alabama Ten Commandments controversy:
If a federal judge ordered a state judge to forcibly return an escaped slave from a state in which slavery was illegal back to the slave's owner, would the law require the state judge to obey the federal judge's order?* * *

* * * Moore, who has refused to enforce a federal court order requiring the removal of a monument of the Ten Commandments Moore has installed in the state's judicial building, told NBC News, "I am a believer in the justice system. And I believe you should obey higher courts except when that higher court is not going by the law."

While this is an unusual claim, it is hardly unprecedented in America legal history. As Cover's book illustrates, prior to the Civil War it was the standard position one strand of abolitionism took toward the legal status of slavery.

Fallows on Murdoch and Powell

James Fallows has a lengthy article in the Atlantic, most of it on Rupert Murdoch, but also including some interesting tidbits from an interview with Michael Powell on the recent FCC decision to loosen media consolidation rules. As I have repeatedly pointed out, the critics of that decision seem to be utterly unaware of the fact that 1) Congress created a presumption that those rules should be repealed (Section 202(h) of the 1996 Telecom Act), and 2) the FCC repeatedly lost in court because it couldn't prove that its consolidation rules actually accomplished anything whatsoever. Powell highlights those points:
"In some ways this is such a silly debate," Powell said when I asked him about assertions that the D.C. Circuit Court had not actually forced him to dismantle the ownership rules. "Let me put this in perspective. I clerked on that court. For the chief judge of that circuit! * * * He then went on to argue that anyone who really understood how courts work would know that the FCC was indeed being told to get rid of its rules. "It's not the fact that we lost that case. It's the basis on which the court relied in saying we lost that matters ... If you really, honestly read those cases, you understand that the status quo [maintaining the ownership rules] becomes extraordinarily vulnerable."

* * * Powell punctuates his explanations with "Let's be honest about this" or "Once you move past the subjectivity and emotions ..." With great nuance he laid out his case for relaxing ownership controls on the media. With less nuance the argument boils down to two big ideas:

First, cable TV, satellite TV, Internet news sites and blogs, and countless other data sources give modern Americans more choices about information than any previous society has enjoyed. Therefore, rules to ensure competition among broadcast stations matter much less than they used to.

Second, complaints about overconcentrated media are really complaints about what's on the air—and the content of news or entertainment should not be the government's concern. "Either you don't see enough of something you like, or you see too much of something you don't," Powell said. "But at the end of the day you have to ask whether you want three out of five unelected regulators saying, I want the public to see this but not that."
Exactly. Considering how much of the FCC's history was spent regulating the content of speech, it's wonderful to have an FCC chairman who talks like that.

Verbal Interactions with Children

William Raspberry has an excellent column about the problems facing poor children who don't get much verbal stimulation from their parents (a problem I previously addressed here). A quote:
"To keep the language experience of welfare children equal to that of working-class children, the welfare children would need to receive 63,000 words per week of additional language experience. . . . Just to provide an average welfare child with an amount of weekly language experience equal to that of an average working-class child would require 41 hours per week of out-of-home experience as rich in words addressed to the child as that in an average professional home."

The short answer is: It's not going to happen. * * *

* * * We're talking about poverty not necessarily ignorance. And we're talking about parents whose parenting styles -- and not just language patterns -- are passed along from one generation to the next. Even full-day, high-quality child care can't begin to close that gap.

What might? It occurs to me that the most reasonable place to try to break the cycle is with one generation of parents.

* * *

I've concluded that it may be easier to teach the parents some of the necessary "tricks" than to rescue children who've already fallen behind. Indeed, I believe it so strongly I've decided to invest time and personal resources to see how much meaningful difference can be accomplished in the small community that happens to be my Mississippi hometown.

I'll let you know how it goes.
Best of luck to him.

Monday, August 25, 2003


Don't miss the "20 Questions" interview with Randy Barnett over at Crescat Sententia. I particularly enjoyed this remark:
I think other theorists want to have the Constitution and eat it too. In other words, they want to substitute for what the Constitution says something they like better, but still claim that it is The Constitution they are expounding. I think this is a deception on the public.

Thursday, August 21, 2003


Ronald Bailey's Reason column on ectogenesis and Roe v. Wade includes this sentence:
In Roe the Supreme Court essentially forbade abortion at the point of viability, which the justices suggested began at 28 weeks of gestation.
To which I say, Huh?!? The Supreme Court, as a court of law, actually forbade a type of abortion in Roe? This will surely come as news to every legal scholar who has ever read that decision.

Tuesday, August 19, 2003


Does anyone know of any studies that examine the effects of size on institutions? That may seem like a vague question, so here's an example: I once read of a study showing that the Hutterite colonies of South Dakota tend to split in two once the population reaches 130-150. Dean Lueck, Contracting Into the Commons, in The Political Economy of Customs and Culture: Informal Solutions to the Commons Problem 43, 50 (Terry L. Anderson & Randy T. Simmons eds., 1993). Apparently once a particular number of people are part of the community, things start breaking down, and the choice is either to radically change the mode of governance or else split into two communities of a more appropriate size.

Here are some more examples (all hypothetical) of what I'd like to find:
  • Studies (probably from organizational economics) showing how the number of employees -- in and of itself -- affects business operations. Note: I'm not as interested here in antitrust-type studies on vertical integration, etc. I'm just interested in whether the number of employees itself has an effect on organizational structure, effectiveness in the market (all else being equal), etc.

  • Studies showing the effects of 1) geographical size or 2) population on democratic governance within a political jurisdiction. Are there differences in governance mechanisms and effectiveness as between a town of 20,000 and a town of 80,000? What about the increasing size of congressional districts (due to population increases while Congress's membership is fixed)? Has that had any effect?

  • Studies regarding how size affects other types of organizations -- churches, communities like the Hutterite farms mentioned above, online communities, clubs and other social organizations, etc.
It's a difficult question for any one person to research, because it requires a familiarity with several different bodies of scholarly literature. Can anyone help me out?


What a difference it makes to get a link from Instapundit yesterday, and then from NRO's The Corner today. (I.e., today and yesterday saw about 8 to 12 times as much traffic as normal around here.)

Also interesting is how many government employees have been visiting my blog during these two days -- the site has gotten many hits from the U.S. Courts, the Department of Justice, the Executive Office of the President, and most other federal agencies. At first I thought, "My goodness, what a drag on productivity," but then I realized that it's probably a Pareto improvement all the way around. I get the satisfaction of having lots of important people paying attention to my thoughts; the government officials and employees get the educational benefit that naturally attends any reading of my writings; and the public at large benefits when government employees spend their time visiting my site, as opposed to whatever mischief they would otherwise be doing.*

*Just kidding, just kidding. Some of my best friends are federal employees. No, really.


I'd like to take the opportunity to say that I agreed with Paul Krugman about the difficulty of trying to simulate a competitive market in network industries characterized by such economies of scale/scope/density that the cost function is subadditive. (For further reading, see David L. Kaserman & John W. Mayo, "The Measurement of Vertical Economies and the Efficient Structure of the Electric Utility Industry," 39 Journal of Industrial Economics 483-500 (1991), and John E. Kwoka, Jr., "Vertical Economies in Electric Power: Evidence on Integration and Its Alternatives.")

Monday, August 18, 2003

New Urbanist Blog

Via Gideon Strauss, I see that someone named David Sucher has a blog that is focused on New Urbanism. Unbelievably cool. He's also the author of City Comforts: How to Build an Urban Village. You can find the blog, called City Comforts, here.

Sunday, August 17, 2003

Arms Trafficking

The NY Times magazine has a profile of the world's most notorious arms dealer. Included is this chilling paragraph:
In late September 2001, two weeks after the terrorist attacks in New York and Washington, a Hungarian trading company in Budapest filed a request to ship Ukrainian cargo to an American firm based in Macon, Ga. No one had ever heard of the Ukrainian company with the vanilla name -- ERI Trading and Investment Company -- and for good reason. A Hungarian bureaucrat making a random inspection of the cargo discovered that the shipment included 300 Ukrainian surface-to-air (SAM) missiles and 100 launchers. SAM's are light, mobile and easily hidden, and American agents later feared that they were going to be distributed to terrorists near America's major airports. (The cargo wasn't permitted to take off; the American buyer was arrested in June.)
300 SAMs. Headed for America. Found only because a Hungarian bureaucrat randomly happened across them.

I'm thinking it might be a good time to start buying stock in Greyhound Bus Lines.

Saturday, August 16, 2003

A Kristof Column

Via Oxblog, I found a brand-new blog by an Orthodox Christian Rhodes Scholar, Newman Nahas. One of his first posts is a superb response (reminiscent of C.S. Lewis's Miracles) to a NY Times column by Nicholas Kristof:
[W]ith the Virgin Birth, if going into the investigation you think that the probability that a man could be born of a virgin woman is 0, or extremely close to 0, then it is going to take a ton of evidence to convince you (as well it should); indeed, it may even be the case that no amount of evidence could ever convince you. Now, if, on the other hand, going into the matter you thought that while it is surely unlikely if not downright impossible for a virgin birth to occur in the natural course of events, if God were to get involved in the matter, such a wonder is surely possible – for you, the same public evidence will quite rightly carry more weight. But these prior convictions -- that there is a God, that God is capable of bringing about a miracle (such as the virgin birth) -- are not themselves empirical, historical questions.

If one thinks that there is no God, or that God would have no reason to work such a miracle as a virgin birth, either in general or in the specific case of Jesus of Nazareth – then the testimony of various people asserting that Jesus was born in this unusual way, is going to strike one as most insufficient. But if going into the matter, you had reason to think that there was a God, and that this God both possessed the ability and had good reason to mark off the birth of Jesus of Nazareth in this particular way, then the testimony which we find in the relevant historical documents will carry much greater weight for you (as well they should). So the rationality of believing in the Virgin Birth is a much bigger matter than simply what the historical evidence has to say. It is equally a matter of what the prior philosophical evidence has to say. The rationality of believing in the virgin birth will depend, then, just as much on the rationality of one's 'antecedent beliefs' as it will on the public evidence.

So Kristof seems to think that there is something necessarily absurd in believing that a virgin birth took place. But as we have seen this is only true if one possesses certain (highly controvertible) antecedent beliefs (such as that there is no God), and thus one was imagining that the virgin birth took place in the ordinary course of events, that it was not a miracle. But we have also seen that if one had independent reason to believe in a God who is able to work miracles (and one also had reason to think that that the life of Jesus of Nazareth was such as to qualify it for being marked off by a miracle) – then, to believe that God brought about a virgin birth is hardly irrational. After all, if God was able to bring the universe into existence out of nothing, it doesn’t seem like too tall an order for him to bring a sperm into existence out of nothing.

The Value of College

From the blog called TAPPED:
WHY COLLEGE IS GOOD. "One of my life-long pet peeves is the American insistence that every clod who stumbles out of high school with a B average be sent on to a taxpayer-subsidized college career," writes Michael Graham on The Corner. "This policy drives up the costs of higher ed for students who really want an education, half the kids drop out anyway (but keep their costly student loans) and the value of every college degree drops by a significant percentage."

This is apparently what passes for tough-minded common sense on the talk-radio circuit. In reality, it's quite stupid.

* * * [T]he notion that college degrees are less valuable when more people have them is plain silly. College enrollments have been going up for decades now, but as of the 2000 Census, holders of a bachlor's [sic] degree enjoyed lifetime earnings of nearly twice as much as people with only a high school degree. That number isn't going down. * * *
Think of it this way: You are at a football stadium watching a game. One of your primary objectives is to have a good view. If everyone is sitting down, you probably have a decent view. Now suppose someone says, "Let's all stand up, and then we can all have a better view." This is obviously fallacious: If everyone stands up, you end up having just about the same view as before, except now you incur the effort of standing up.

The only time that standing up will give you a better view is if you stand up while the surrounding people are still sitting down. Only then will standing up be a real improvement over the previous situation. But as more and more people stand up too, the value to you of standing up goes down compared to the situation when you were the only one standing up. And that, I think, is the point Michael Graham is making: Having a college degree was a significant advantage back in the days when few people went to college. But now that most people go to college, getting a college degree doesn't give you a step up; it just keeps you in line with everyone else, and at the cost of extra money and effort.

While TAPPED is probably right that college graduates earn more money, what that statistic shows is not the inherent value of everyone having a college degree, but the inherent disadvantage of not going to college when everyone else does. Just as if most of the people in the stadium are standing up, the few people sitting down will have a much worse view than before. But the fact that they now have a bad view does not prove that it is optimal for everyone to stand up.

So here's a conclusion that incorporates both points: As more and more people get a college degree, the disparity between college graduates and high school graduates increases (TAPPED's point), but at the same time, the absolute value of a college degree goes down because it now provides no real advantage other than keeping up with everyone else (Graham's point).

UPDATE: I just remembered that I got this example from Thomas Sowell. Here's a quote from a 1995 interview with him:
MR. WATTENBERG: Suppose they are thirsting for a better job, and we have set up a society where you have to be credentialed with a certain amount of college, so aren't they able to get a better job because of their credentials?

MR. SOWELL: No. This is the fallacy of composition. You know, if one person stands up in the stadium, he sees the game better, but if they all stand up, they don't all see the game better. As long as -- you know, if you have a degree and the other guy doesn't, then you get ahead of him in the employment line. But we're not going to all get ahead of each other in the employment line by all getting degrees.

MR. WATTENBERG: So this whole idea that I guess again both liberals and conservatives are saying is that, at this particular moment, 1995, we have to get more people into the education system, because that's the way to compete, and we look at the data and we see that the people with more education are earning more money than ever before relative to the people with less education, that's all a fallacy of everybody standing up in the stadium?

MR. SOWELL: People who fly on the Concorde -- kids who have flown on the Concorde undoubtedly will make more money than people who -- kids who have only gone on buses. That does not mean if we put a lot of people on the Concorde, we're going to raise the national income.


Thursday, August 14, 2003

Terrorism Crackdown

This article looks very interesting:
KIRO 7 Eyewitness News has learned that two passengers arrested at Sea-Tac Airport last weekend may be linked to a suspect's deadly plunge from a high-rise balcony in Vancouver, British Columbia during a raid.

Federal sources both in British Columbia and in Seattle tell KIRO Team 7 Investigators the weekend arrest at Sea-Tac of two men on the terrorist 'no-fly' list may be just the tip of the iceberg.
We're told the FBI is very interested in trying to connect three separate -- and recent -- incidents involving Pakistani illegals.

Wednesday, August 13, 2003


Today is International Left-Handers' Day. (Says who? you might ask. The defunct organization Lefthanders International, that's who.)

I'm left-handed. At least I think that's what I am. It's actually a bit confusing. I eat, write, brush my teeth, blow my nose, and fire a rifle with my left hand. Most other things I do right-handed, particularly sports -- shooting hoops, throwing a baseball or football, etc. So I don't know if that makes me ambidextrous or not. I certainly don't use both hands equally well at the same activities (I can't write at all with my right hand, or throw with my left hand.)

As for the guitar, I play in the normal fashion. People have asked me before if I played left-handed; my response is that there's no such thing. Yes, I know how Paul McCartney and Jimi Hendrix and other left-handers have held the guitar. But playing the guitar requires both hands, no matter how you hold it. What McCartney does is play the guitar backwards. It would be as if left-handed pianists were seen perched up on top of the piano, so as to reach down onto the keyboard in reverse. Why bother?

In any event, I hope you plan on celebrating appropriately.

Tuesday, August 12, 2003

Even More on Ashcroft

The Curmudgeonly Clerk has a thoughtful and lengthy post responding to me. I don't mean to turn my blog into a full-time job defending Ashcroft's position on the Sentencing Guidelines, but I'll respond briefly:

Consider this chart (PDF) from the Sentencing Commission. One column lists the percentages of cases in which judges granted downward departures for reasons other than providing "substantial assistance" to the court. These percentages are provided by circuit and district throughout the entire country.

Thus, we can see that in 2001, there were vast disparities in how the Guidelines were applied across the country. In South Carolina, only 2% of cases involved downward departures for "other" reasons, while the Fourth Circuit as a whole did so in 5.2% of their cases. The Western District of Texas, however, granted such departures in 25.7% of all cases. The Ninth Circuit as a whole granted such departures in 38.7% of all cases, while the Southern District of California granted them in 50.5% of cases.

Now it might be that these disparities are caused by the differing dockets in various jurisdictions. Or maybe the criminals in the Southern District of California are just nicer human beings, and are therefore 25 times likelier to have mitigating qualities than the criminals in South Carolina.

On the other hand, maybe Ashcroft is right in suggesting that the Guidelines are not being applied consistently across the country. (See p. 4 of his memo, which mentions the "goal of reducing unwarranted disparities in sentencing among similarly situated defendants.") That is the whole point of the Guidelines, after all -- to make sure that equally situated defendants are treated equally no matter where they are standing trial. Indeed, the hope that uniformity would eliminate racial disparities is precisely why liberals like Kennedy put forward the Guidelines in the first instance.

UPDATE: Curmudgeon responds by attributing most, if not all, of these disparities to the differences in dockets, primarily the prevalence of drug and immigration cases. He says:
I suggest that this docket-related surmise has more explanatory power than Ashcroft's accusation to the effect that renegade judges are flouting the Sentencing Guidelines at will and must be brought to heel.
The Clerk keeps insinuating that Ashcroft has made wild accusations about the federal judiciary. But as far as I can tell, Ashcroft has not himself "accused" anyone of anything. The only thing I've seen with Ashcroft's name on it is a bland and innocuous memo telling prosecutors to make sure that they initiate the appeals process if judges issue decisions that are "not supported by the facts or the law," if such decisions occur. (p. 4 of the memo). Does anyone want DOJ to acquiesce in decisions that are "not supported by the facts or the law"?

As for the differing dockets, let's take a quick look at some statistics: The Southern District of California's docket is 42.2% drugs and 44.1% immigration, and grants downward departures 50.5% of the time. The Eastern District of Virginia's docket is 38.2% drugs and 3.3% immigration, and grants downward departures 3.5% of the time. So even though SD Cal has a lot more immigration cases, that fact alone can't possibly explain the disproportionately high number of downward departures it grants. If it granted downward departures in drug cases at the same rate as ED Va, it would have to grant departures in every single immigration case (and then some) to reach 50.5% of all its cases. And granting departures in 100% of its immigration cases would be vastly disproportionate to the average nationwide figure for immigration cases (35.7%). No matter how you look at it, SD Cal is way out of proportion to many other districts.

FURTHER UPDATE: The Curmudgeon responds in the same post yet again, pointing out that there are still significant differences between SD Cal and ED Va. Fair enough. A lot more study would be warranted. But neither Curmudgeon nor anyone else can possibly claim that there are never cases where judges issue sentences that unlawfully depart from the Guidelines. And if such cases occur, all that Ashcroft is saying is, "Preserve the right to appeal." (That's why I'm utterly mystified when Curmudgeon says things like, "It is not even remotely clear that the incidence of such instances is epidemic. Ashcroft and his defenders have not even bothered to offer evidence in this regard." Who cares whether it's an "epidemic" or whether it happens a handful of times per year? All Ashcroft said was that prosecutors should preserve the right to appeal IF such a case occurs.)

He also reiterates concerns about Ashcroft's motives:
I am flummoxed by Buck's argument. Are we to read Ashcroft's latest memorandum divorced from everything we know about the man and his law enforcement philosophy? Are we to disregard the statements of his own subordinates regarding the AG's motives and the impetus behnd the DOJ's new policy?
I have no doubt that Ashcroft wants to be tough on crime, and that this is why he wants to make sure that the government appeals when judges issue too-lenient decisions that are "not supported by the facts or the law."

But so what? How does that make the actual policy stated in the memo objectionable? It's not as if Ashcroft said, "When you get a bad judge, call this secret number and I'll have him impeached." All he said was, "Initiate the appeals process when, in your opinion, a judge has issued a decision that doesn't follow the facts or the law." And the final decision in this appeals process is made by the Solicitor General's office, not by Ashcroft.

Sunday, August 10, 2003

More on Ashcroft

The New York Times has an editorial today that is unusually dishonest, even by the Times' standards in that regard. Here are my thoughts:
Blacklisting Judges
The founding fathers, whose brilliant design for the federal government was based on three coequal branches, would be horrified to learn of Attorney General John Ashcroft's latest idea for improving the American justice system.
I have no idea what the Founding Fathers would have thought of the federal Sentencing Guidelines per se, but I can't imagine why they would think it improper for the federal government to have a policy of appealing from erroneous lower court decisions.
Mr. Ashcroft has ordered federal prosecutors to start collecting information on federal judges who give sentences that are lighter than those suggested by federal guidelines.
This phrasing -- "collecting information on federal judges" -- is misleading. Ashcroft's memo did not ask for information about the judges themselves; rather, he asked that federal prosecutors notify DOJ when a decision is issued that doesn't appear to follow the Sentencing Guidelines.
Critics are right when they say this has the potential to create a "blacklist" of judges who could then be subjected to intimidation.
Nonsense. Federal district judges see their decisions appealed all the time.
Congress established the United States Sentencing Commission in the mid-1980's, and charged it with developing guidelines to bring greater uniformity to sentences handed down by federal courts. The guidelines provide a range of sentences a judge can hand down for particular crimes. But they also permit judges discretion to impose a more lenient sentence, known as a "downward departure," if they can justify the decision. Judges frequently depart downward at the urging of the government, to reward defendants who cooperate with prosecutors.
This is all true. But the question is what to do if judges grant downward departures that are not justified by the Guidelines. In such cases, DOJ has every right to take an appeal.
But the administration and its allies in Congress have made no secret of their unhappiness with judges who impose more lenient sentences than guidelines call for.
Well, is the administration supposed to be pleased with judges who decline to follow the law?
Mr. Ashcroft's latest initiative raises these pressures to a new level. Under the new policy, federal prosecutors will be required in many cases to report when a judge departs downward from the sentence recommended by the federal guidelines. The Justice Department has said it intends to use the data to identify how often particular judges depart downward. Obviously, judges are going to be worried about coming in high on the list, and those who do will wonder if they will be subject to intimidation, as Judge Rosenbaum was.
Intimidation? What does that mean? These are judges who have life tenure, after all. They are about as far beyond the reach of "intimidation" as any federal employee could possibly be. Is it that certain judges might be embarrassed if their decisions are appealed and reversed more often? But judges who don't follow the law ought to feel at least a little embarrassment.
At the very least, the Ashcroft plan would subject federal prosecutors to an unusual, and undesirable, degree of top-down management. Right now, individual prosecutors decide when to appeal a judge's sentence. Mr. Ashcroft seems to want that decision to be made after a review from Washington. A prosecutor who feels a given judge is consistently handing down sentences that are too mild can certainly let his or her feelings be known to superiors.
Eric Muller has already explained that the Times is indisputably in error here. Decisions as to appeals are always made by DOJ, and never by individual prosecutors.
But this new, rigorous and rigid reporting system seems to treat prosecutors as lackeys, and judges as some kind of minor civil servants who can be ordered around by the president and his appointees.
So -- appealing an erroneous decision by a lower court judge amounts to treating the judge as a "minor civil servant who can be ordered around"? Why doesn't the Times raise this charge as to every other instance in which parties appeal from erroneous decisions?
By trying to make federal judges yield to political pressure from Washington, the Bush administration is engaging in a radical attack on our constitutional system. Even Chief Justice William Rehnquist, whose conservative credentials are unassailable, has warned that collecting data on judges' sentencing practices "could amount to an unwarranted and ill-considered effort to intimidate individual judges." Mr. Ashcroft should heed these words, and abandon his dangerous war on the judicial branch.
The Times really brought out the hyperbole here -- "radical attack on our constitutional system" and "dangerous war on the judicial branch"! All because Ashcroft wants to make sure that DOJ appeals, just as it always has, from lower court decisions that fail to follow the law.

And if you read the full text of Chief Justice Rehnquist's May 5 speech to the Federal Judges Association, it is clear that his main concern is that there might be attempts to impeach judges and remove them from office merely because of their judicial decisions. Nothing in what he said would apply to Ashcroft's desire to make sure that erroneous decisions are appealed.

Finally, I'd bet that if Ashcroft had written this memo about the need to make sure that judges sentence violent anti-abortion protestors in accordance with the Guidelines, the Times would be cheering him on.

UPDATE: The Curmudgeonly Clerk expresses slight disagreement with what I've said. To wit:
Buck's thesis strikes me as question-begging. Buck maintains that the DOJ is well within its rights to appeal erroneous sentencing decisions, which is certainly true. But as Buck acknowleges, the DOJ has always been in charge of such decisions, and has always enjoyed the right of appeal. Yet it has chosen not to appeal in most cases. So what then does Buck think that this new policy signifies?
I'm not sure that the Ashcroft memo really represents a new policy at all. From what I can tell, it might more accurately be described as a reminder to make sure that the existing policy on appeals is followed in every case.
Buck also makes this rather interesting claim:
Intimidation? What does that mean? These are judges who have life tenure, after all. They are about as far beyond the reach of "intimidation" as any federal employee could possibly be. . . .
One wonders if Buck recalls Judge Baer's difficulties. See here, here, and here. It seems to me that federal judges, while quite insulated, are hardly immune from unwarranted meddling by the legislative and executive branches.
I do recall Judge Baer. But what does his example prove? That there has been one solitary case in the past decade in which a federal judge went off the deep end, but then corrected himself after furious criticism and threats of impeachment from Congress and the President who appointed him. But why is Baer's situation even relevant? No one here is calling for the impeachment of any federal judges, and no one is even talking about any specific federal judges by name. The only question on the table is how regularly the Department of Justice takes appeals from erroneous decisions in general.

Saturday, August 09, 2003

A Tax on Driving?

This looks like an interesting article:
The Accident Externality from Driving

University of California at Berkeley
University of California, Berkeley - Department of Economics

We estimate auto accident externalities (more specifically insurance externalities) using panel data on state-average insurance premiums and loss costs. Externalities appear to be substantial in traffic dense states: in California, for example, we find that a typical additional driver increases the total of other people's insurance costs by $2231 per year. In such states, an increase in traffic density dramatically increases aggregate insurance premiums and loss costs. In contrast, the accident externality per driver in low traffic states appears quite small. On balance, accident externalities are so large that a correcting Pigouvian tax could raise $45 billion annually in California alone, and over $140 billion nationally. The extent to which this externality results from increases in accident rates, accident severity or both remains unclear. It is also not clear whether the same externality pertains to underinsured accident costs like fatality risk.

Friday, August 08, 2003


Another controversy is brewing around Ashcroft, this time over a so-called "blacklist" of federal judges who are "too lenient" in their sentencing. A quote from the Washington Post:
Attorney General John D. Ashcroft has ordered U.S. attorneys across the country to become much more aggressive in reporting to the Justice Department cases in which federal judges impose lighter sentences than called for in sentencing guidelines. * * * The more extensive reporting will lay the groundwork for the Justice Department to appeal many more of those sentencing decisions than it has.

The Ashcroft memo amended a section of the United States Attorneys' Manual that previously said federal prosecutors had to report to the department only those sentences that prosecutors had objected to and wanted to appeal. In the new directive, U.S. attorneys were told to report all "downward departure" sentencing decisions that meet certain criteria in nine categories.

* * *
Ashcroft's critics reacted angrily to the memo, which was first reported by the Wall Street Journal. Sen. Edward M. Kennedy (D-Mass.) accused Ashcroft of engaging in an "ongoing attack on judicial independence" and of requiring federal prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the sentencing guidelines."
Kennedy's charge is silly on its face. Nothing in Ashcroft's memorandum suggests that anyone anywhere is going to keep a "list" of judges whose sentencing decisions are erroneous. Even if Ashcroft set up some sort of "blacklist" of federal judges he didn't like, I don't see how it could possibly have any effect. Prosecutions have to be brought in appropriate venues in the first instance, and judges are then randomly assigned.

Moreover, Ashcroft's decision has literally nothing to do with "judicial independence." From the article, it appears that he is merely trying to make sure that DOJ appeals sentences that fail to meet the Sentencing Guidelines. And DOJ has every right to appeal in those cases. I'm not sure how anyone could reasonably conclude that asking life-tenured judges on a U.S. Court of Appeals to reverse an erroneous decision by a life-tenured district judge is an attack on "judicial independence."

Since I knew that Kennedy protege Stephen Breyer had been on the U.S. Sentencing Commission when the Guidelines were first introduced in the mid-1980s, I wondered what Kennedy thought of the Guidelines back then. What I found (on LEXIS) was quite interesting:
The National Law Journal, September 29, 1986


LENGTH: 2649 words

HEADLINE: Revolution Nears On U.S. Sentences;
Massive Undertaking

BYLINE: BY FRED STRASSER, National Law Journal Staff Reporter



* * *

Within the next two weeks, the commission -- consisting of three judges, two social scientists, a law professor and a former member of the U.S. Parole Commission -- will unveil some tentative proposals for a new sentencing system scheduled to begin operating in October 1987.

When its job is done, the federal criminal justice system will have undergone a remarkable transformation -- and one that may well be a model for the states as well.

In the new system, judges no longer will have unfettered discretion to mete out penalties according to their views on crime and punishment. Parole will be abolished and with it, the parole board, making final whatever sentence a judge imposes. The idea of rehabilitation in prison, already in growing disfavor, will have been banished from the courtroom by law.

Instead, a new set of uniform standards will determine who goes to prison, for how long and for what crimes. The commission's final guidelines -- if accepted by Congress -- eventually will reach into every corner of the criminal justice system, exerting their influence on everything from plea bargaining to the number of inmates in federal prisons.

The commission's chief assignment, as stated by Congress in the Sentencing Reform Act of 1984, is to limit disparity in sentences handed down for similar crimes while leaving judges some flexibility in dealing with individual offenders. In all cases, judges will have a 25 percent range of discretion and the right to exceed it further with written justification.

* * *
Indeed, the commission was the product of a seldom-seen alliance of political forces in Congress.

In the Senate Judiciary Committee, the measure was co-sponsored by conservative Sen. Strom Thurmond, R-S.C., and the voice of the Democratic party's liberal wing, Sen. Edward M. Kennedy of Massachusetts.

The hands of both are still felt at the commission: Judge Breyer was the committee's counsel when Senator Kennedy was chairman, while Judge Wilkins once served as Senator Thurmond's legislative assistant.
Then this instance from 1994 in which Kennedy bragged of his role in creating the Guidelines:
The Boston Globe

October 24, 1994, Monday, City Edition


LENGTH: 1607 words

HEADLINE: Voters' fear of violence takes hold in Senate race;

BYLINE: By Anthony Flint, Globe Staff
* * *

"It's fair enough to ask if this has been a priority. For me, clearly it has," Kennedy said. Citing initiatives on gun control, bail reform, federal sentencing guidelines and other measures through the 1980s, Kennedy said, "I was taking different elements in the criminal justice system and addressing them one by one."

"The issues of security against violence is something I feel very strongly about. It's one of the most powerful factors and forces in my own life and in public life," he added.
* * *
Then Kennedy had this to say at the confirmation hearing for Breyer in 1994:
SEN. KENNEDY: Turning to another area involving the criminal justice system, as you know, Senator Thurmond and I worked for many years with the chairman, Biden, to pass the Sentencing Reform Act of 1984, the law that abolished the federal parole and created a sentencing guideline system in the federal courts.

And with all the talk about truth in sentencing, it's important to remember that we created truth in sentencing at the federal level 10 years ago.

Before that time, the sentencing system was a matter of law without order. Judges in two different courtrooms sentencing two equally culpable defendants might hand down two completely different sentences. One defendant might get 10 years; another might get probation. And there was nothing the prosecutors could do about it. And because of parole, the sentence imposed by the judge had little to do with the time the defendant actually served, and many criminals served only a third of their sentences, even in cases involving violent crimes. And this system led to people to lose faith in the ability of the legal system to do justice and protect the interest of victims of crime.

So we abolished parole in the federal system and created a commission to write sentencing guidelines so that criminals who commit similar crimes will get similar sentences and actually serve the time they get. You served as one of the first members of the commission. You helped forge the key agreements that got the job done. And these guidelines provide for tough, no-nonsense sentences, increasing the time served by violent criminals, and by white-collar corporate criminals who used to get special treatment in the federal courts.

Could you briefly describe how the guideline system achieves the truth in sentencing and why you think that truth in sentencing is an important goal?
As a former House Judiciary Committee counsel once said, "The sentencing guidelines, of course, were really very much a product of Teddy Kennedy's efforts over a decade to change how federal sentencing -- from an unstructured to a somewhat structured process." It takes quite a bit of gall for Kennedy, of all people, to complain merely because an Attorney General wants to appeal decisions in which federal district judges fail to follow the Sentencing Commission's requirements.

All that said, some of the sentences in the Guidelines (particularly for drug offenses) may be too harsh (see the example that Justice Kennedy recently gave in congressional testimony). Moreover, I don't know any federal judges who actually like the Sentencing Guidelines. Most of them tend to think that the Guidelines make their role far too robotic and technical. But the Guidelines do exist, thanks to Congress and Kennedy in particular. If Kennedy has decided that the Guidelines are too harsh, let him introduce legislation repealing his earlier handiwork.

Tuesday, August 05, 2003

C.S. Lewis on Wartime News and Newspapers in General

A wonderful quote from C.S. Lewis's autobiography Surprised by Joy:
I can hardly regret having escaped the appalling waste of time and spirit which would have been involved in reading the war news or taking more than an artificial and formal part in conversations about the war. To read without military knowledge or good maps accounts of fighting which were distorted before they reached the Divisional general and further distorted before they left him and then "written up" out of all recognition by journalists, to strive to master what will be contradicted the next day, to fear and hope intensely on shaky evidence, is surely an ill use of the mind. Even in peacetime I think those are very wrong who say that schoolboys should be encouraged to read the newspapers. Nearly all that a boy reads there in his teens will be known before he is twenty to have been false in emphasis and interpretation, if not in fact as well, and most of it will have lost all importance. Most of what he remembers he will therefore have to unlearn; and he will probably have acquired an incurable taste for vulgarity and sensationalism and the fatal habit of fluttering from paragraph to paragraph to learn how an actress has been divorced in California, a train derailed in France, and quadruplets born in New Zealand.

Monday, August 04, 2003

Facial Expressions

I was driving down the road with my wife yesterday. She remarked on how sore her muscles were from lifting weights the day before. Usually I respond to such complaints with the hearty and rousing exhortation, "No pain, no gain!" This time, however, I decided to show a little empathy by employing a facial expression that I think of as a sympathetic wince.

To my surprise, my wife responded by saying, "Why are you smiling? You think it's funny?" Horrified, I explained that I had not intended to smile at all; to the contrary, I was attempting a sympathetic wince, etc.

Puzzled at the discrepancy, I looked at myself in the rearview mirror and attempted to make the same facial expression again. Sure enough, it was a smile -- a smirk, even. I immediately understood why my wife would have taken offense at seeing that expression in that context.

Then it occurred to me: We almost never see how our own faces appear in our daily interactions with other people. The disappointed face with which you expect to elicit a vale of tears might appear as a scowl. The friendly smile with which you greet a new acquaintance might seem leering. The raised eyebrow with which you convey your sophistication might seem smart-alecky or condescending.

How often it must be that people create misunderstandings or needless offense, all because they do not realize how their faces look to other people. Think how much happier we might be if only we could all walk around with a head-mounted mirror for a couple of weeks.

Saturday, August 02, 2003

Steven Levitt

I just loved reading this NY Times Magazine profile of Steven Levitt, the celebrated (and hated) Chicago economist. Maybe it's my odd sense of humor, but the whole piece is filled with hilarious anecdotes and phrasings.

Friday, August 01, 2003

Congress Should Pass a Law (or, We Pay Taxes to Avoid Jail)

The Congress should pass a law requiring the IRS to include a section on income tax returns where filers can donate money, beyond their tax liability, to the federal government. They should also require that the IRS aggressively publicize this option as a great way to support dear programs. To encourage donations, the tax forms could have a space to enter a two digit code designating which government agency or program will receive the excess funds. (Allowing filers to earmark their money isn't crucial, however. How targeted the donations can be will depend upon the logistics of listing the options and processing the claims. The process will become simpler as we transition to electronic forms.)

This is a good idea for several reasons. First, it will bring extra revenue to the federal government in a painless way. Second, it will provide tax payers a forum to express their true priorities. To the degree people want the NEA to have more money, they’ll donate. Third, it's a step toward the ideal world where everyone recognizes their duty to support the common good voluntarily.

Fourth, it will reframe the way people conceive of taxes and tax cuts.

Opponents of the Bush tax cuts implicitly suggest that they are more generous and compassionate than those who prefer low tax rates. Heavily publicizing the option of donating money to the government will change the nature of the debate. No longer will Nancy Pelosi be able to complain about the tax cut without a reporter asking, "So you're going to continue paying at the 40% rate, and are encouraging others to do the same?"

The talking heads who publicly supported the tax cut should have reminded viewers, time and again, that cashing the refund checks is optional. If someone wants to give government more money than their government demands, return the check to the US Treasury. The money would fund worthy programs.

Michael Moore would have to argue that he doesn’t think he should give more money to the government (he’s promised to spend his tax rebate fighting Bush) but why he wants to threaten others with jail time for not giving enough. Whatever nobility results from championing higher taxes is squandered the moment you concede that you only pay high taxes, but won't do so if not threatened by force, because you'll go to jail otherwise.

Which is my point. We pay taxes to stay out of jail. Nancy Pelosi pays taxes to stay out of jail. There’s not much generosity in either of our decisions to avoid the pen. Tax rates are not about generosity. Publicizing the option of donating money to the government will highlight the distinction between submitting to threats of force (paying taxes) and generosity (donating to government). The bloated chest thumpers will fall off their pedestals. If they want to be moral, they can give.

Furthermore, the idea is a no-brainer politically. It's impossible to make the argument that government shouldn't encourage people to donate money. The government of course believes it does important work, and has every right to ask for the help of good, generous, people. It should start doing so.