Monday, February 28, 2005

The Oscars

I liked Lileks' comment on the Oscars:
Everyone looked quite fabulous. Hooray for them, I suppose, but the actors are the least interesting part of movies to me, because they're usually the least intelligent. Consider the smarts required to put a movie together, and spending all your time lauding the actors is like crediting a model who cuts the ribbon to open a new skyscraper with figuring out how to calculate a novel way to brace the structure against high winds. Yes, I know, without the actors you wouldn't have a movie anyone wanted to see. But without the thousands of people who build the machine the actor would be wandering around a big dark room saying "hello?" over and over again.
Stuart Buck

Sunday, February 27, 2005

Revival of Dead Statutes

An interesting question from Howard Bashman:
Assume that the Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
I happen to know of a law review article that addresses precisely this question (albeit in passing). As I have permission to reprint that article at will, here goes:
One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to "strike" down a law. We usually imagine that a statute, once declared unconstitutional, "is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed."191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as "striking down." A federal court has no power to erase a statute from a state's lawbooks.192 As one prominent scholar said, "No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority."193

191Norton v. Shelby County, 118 U.S. 425, 442 (1886).

192See Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 876 (1991) ("A federal court may hold a state statute 'overbroad,' but it cannot 'invalidate' a state statute in the sense of rendering it irredeemably null and void."); Nimmer, A Proposal for Judicial Validation of a Previously Unconstitutional Law: The Civil Rights Act of 1875, 65 COLUM. L. REV. 1394, 1398 (1965) (arguing that the Civil Rights Act of 1875, held unconstitutional by the Supreme Court, could be revived because it had never been repealed); see also Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248, 1257 (Cal. 1995) (holding that a federal court had not "invalidated" a state statute, but had merely "enjoined [its] enforcement"); Jawish v. Morlet, 86 A.2d 96, 97 (D.C. App. 1952) ("[A] statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished . . . .").

193David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW.U. L. REV. 759, 767 (1979).
Michael Froomkin also addresses the question here.

Stuart Buck

Saturday, February 26, 2005

Small Town Libraries

I can safely say that this is the smallest town to have a library:
All but one of Monowi's residents have died or moved. Brisk and unsentimental at 71, Elsie Eiler lives in the one home still fit for living in, a snug trailer with worn white siding. She runs the one business left in Monowi, a dark, wood-paneled tavern, thick with smoke.

She also runs the library.

The sign outside the library is painted on a section of a refrigerator door. The floor is bare plywood. There's no heat. But there are thousands upon thousands of books. "The Complete Works of Shakespeare." "Treasure Island." Trixie Belden and "The Happy Valley Mystery." Zane Grey's westerns, every one of them, lined up across two shelves. Homer. Tennyson. Amy Tan. Goethe.

Elsie Eiler's late husband, Rudy, read them endlessly. He farmed and tended bar, ran a grain elevator, delivered gas to filling stations, and when the town was down to just him and Elsie, he served as mayor, too. But he always found time to read: science fiction, history, the classics — anything but Harlequin romance novels.

When he got sick with cancer two years ago, Rudy confided a dream to Elsie: He wanted to turn his collection into a public library.

Rudy ordered a custom-made building and set it a few steps from his home and his tavern. The Eilers' son, Jack, wired the lights, and friends built floor-to-ceiling shelves. But Rudy died in January 2004, before he could fill them.

Five months later, his friends and family came together to pack the small, white building with his books. Elsie estimates they shelved at least 5,000 volumes.

Monowi, population 1, had its library.

* * *

Nearly 30% of the nation's libraries serve communities of fewer than 2,500 people, including almost 3,000 libraries in towns where the population is measured in the hundreds.

Because they run on volunteer labor, making do with the books at hand, rural libraries survive even in tight times like these, when big cities are shutting branches. In California, John Steinbeck's hometown of Salinas (population 150,000) has announced plans to close all of its libraries by April to save money. But it's still possible to check out a book in Gaylord, Kan. (population 97), and Strang, Neb. (population 38).

* * *

Rudy's Library is less than 350 square feet. The books are worn, disorganized and eclectic beyond description.

It's impossible not to linger.

Here's "Ivanhoe," by Sir Walter Scott, next to "Jaws 2." Mark Twain's collected works sit side by side with "Dancer of Dreams" by Patricia Matthews, touted on the cover as "America's First Lady of Love." (That's one of the few Rudy likely never opened.)

Copies of Reader's Digest date back to 1950; National Geographic, to 1953. A local newspaper from 1941 bears the front-page news that Rose Karel's tonsillectomy went well.

The library runs on the honor system: Take what you want, return it when you can.

"You just have to look around 'til you find something you want to read," Elsie says. "You'll probably run across something you're not thinking of."

* * *

Rudy collected these books over a lifetime in love with the printed word.

"He always said he never read any book but he didn't learn from it," Elsie says.

Though he had more books than he could finish, Rudy prowled estate sales and thrift shops, always looking for more. When a community four towns over closed its school, he bought out the whole library — two pickup loads of outdated textbooks and teen novels. As Elsie puts it: "He was forever buying something for a little bit of nothing."

The subject didn't matter to him, as long as it wasn't straight romance. In his last year, he spent hours reading a seed catalog, cover to cover.

"Out here in the sticks, we don't have a lot of things to do," explains Barb Weeder, a friend.

"So if you find something you like to do, you do a lot of it," Elsie adds.
I can't put into words how much I identify with the late Rudy described above. I myself spent hours reading a seed catalog as a youngster, as I too had the habit of reading everything that I could lay hands on.

Stuart Buck

Friday, February 25, 2005

Hollow Men

Everything that Steven Smith writes is interesting and provocative, as this is likely be:
Hollow Men: Law and the Declension of Belief

University of San Diego School of Law

February 2005

U San Diego Legal Studies Research Paper No. 06-03

If believing is central to what makes us persons, then how do we react when our core beliefs come under serious challenge? The "purest" responses are probably to engage in responsible apologetics, defending our beliefs against the challenges, or else adjustment or relinquishment of our beliefs in accordance with what we come to understand the truth to be. Often, however, we resort to less "pure" responses. We "bend the truth" or "fudge the facts" to deflect challenges to our beliefs. Or, in a response that entails more implicit philosophical sophistication, we deflate our very conceptions of truth and belief: in this case, this essay suggests, we may continue to affirm propositions even though we no longer fully and in good faith believe them.

This essay, presented as part of a lecture series on "Christian Contributions to Contemporary Jurisprudence," argues that this last "declensionist" response produces a kind of hollowness in our personhood. The essay then explores manifestations of such declensionist strategies in modern thinking about the nature of law. It concludes by sketching some possible alternatives that Christian legal thinkers might take in response to such declension.
Stuart Buck

Volokh and Slate

Over at Slate, they have a feature called "Bushisms," which regularly points out supposed malaprops spoken by President Bush. Nearly as regularly, Eugene Volokh points out that Slate itself has misunderstood or mischaracterized Bush's statements. Today, he caught Slate attributing a line to President Bush that was actually spoken by the president of the European Council. Yesterday, he caught Slate accusing Bush of mis-speaking when his statement was perfectly grammatical. And on February 10, Volokh caught Slate accusing Bush of having said "the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate," when the audio of Bush's speech showed that he had actually used an acronym and then explained it ("the other day I was asked about the NIE, which is a National Intelligence Estimate").

I hereby coin two words:

1. "Slate-ism," which means "a snide attribution of error to someone else on grounds that are shown to be obviously and indisputably false by anyone who does any fact-checking whatsoever."

2. "Slatenfreude" (related to schadenfreude), which means "taking delight in pointing out an especially idiotic Slatism."

Stuart Buck

Takings Debate

Legal Affairs is running one of their typically interesting debates. This one has Richard Epstein and J. Peter Byrne debating on the proper application of the Takings Clause to the use of eminent domain.

Stuart Buck

Interesting Article

Evaluating Bundled Discounts

University of Missouri at Columbia - School of Law

January 18, 2005

CORI Working Paper No. 2005-01
Minnesota Law Review, Forthcoming

Bundled discounts - discounts conditioned upon purchasing products from multiple product markets - present a dilemma for antitrust scholars: on the one hand, they result in lower prices and therefore provide immediate benefits to consumers; on the other hand, even above-cost (i.e., non-predatory) bundled discounts may cause long-run consumer harm by foreclosing competitors that are as efficient as the discounter but do not sell as broad a line of products. Courts therefore need an evaluative approach that would identify and condemn only those bundled discounts likely to cause long-term consumer harm by driving out efficient rivals. The approach must also be easily administrable so as to avoid chilling procompetitive discounting behavior. This article identifies and critiques five attempts courts and commentators have made at articulating such an evaluative approach and, finding each approach lacking, proposes an alternative evaluative approach. The proposed approach would presume the legality of above-cost bundled discounts but would permit that presumption to be rebutted by a plaintiff that proved certain facts demonstrating that it had fully exhausted its competitive options and was, or was likely to become, as efficient as the discounter. The recommended approach would be easily administrable and would include clear safe harbors to ensure that procompetitive bundled discounting is not discouraged.
Stuart Buck

Thursday, February 24, 2005

Takings Clause

Orin Kerr writes:
Textualism and the Takings Clause: I don't know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC's readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge's post linked to by Randy below, Steve notes the text of the Takings Clause:
Nor shall private property be taken for public use, without just compensation.
Steve then adds:
Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a "public use." This second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.
I have no expertise at all in the Takings Clause, but my understanding is that this is more or less an accurate summary of exsiting Supreme Court doctrine. As best I recall, the Supreme Court has interpreted the Takings Clause this way for a long time.

At the same time, this isn't what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.
Two points:

1. This argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."

What's wrong with that argument (ignoring other constitutional provisions)? Just that a prohibition on the exercise of governmental power does not imply that the government can oppress people in every conceivable way that the Framers didn't think to explicitly prohibit.

2. Relatedly, such reasoning shows exactly why some of the Framers thought that a Bill of Rights would be dangerous: Because people might grow to think that a list of rights was somehow exclusive. Consider Alexander Hamilton's argument from Federalist 84:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
So: The fact that the Takings Clause requires compensation when property is taken for "public use" in no way implies that property can be taken without compensation if it is for "private use." Instead, it implies that the government is not empowered to take property for "private use" under any conditions whatsoever.

Stuart Buck

Wednesday, February 23, 2005

Extra Blog

So was the "Iraq War Was Wrong Blog" actually run by . . . Glenn Reynolds? I can't imagine how he would have time to run an extra blog, but that's what this seems to indicate.

Stuart Buck

Sunday, February 20, 2005


In the post below, I used the phrase "quite a few." This makes me wonder: What's the difference between "quite a few" and "quite a lot"? Why does the word "quite" serve opposite functions in those two expressions? That is, in the phrase "quite a lot," the word "quite" is emphasizing the "lot." "Quite a lot" means "much lot-ness," so to speak. But in "quite a few," the word "quite" is not emphasizing few-ness. In fact, "quite a few" really means something more like "much more than a few."

Stuart Buck

Weekly Standard on NPR and Classical Music

Andrew Ferguson has another article in the Weekly Standard on NPR's slow abandonment of classical music programming in favor of endless news/talk formats. I posted about a previous article of his on the same topic.

Ferguson's main point is that NPR admits that it is trending towards the news/talk format because it is more popular. But on that rationale, he says, why have NPR at all? The marketplace already exists to serve popular interests, and the whole point of having government-funded media is to give outlet to formats that are valuable but not necessarily popular:
One comment, from WETA's president, Sharon Percy Rockefeller, struck us as revealing. "We're in the business of trying to create a larger audience," she told the Washington Post, explaining the board's decision. * * *

Perhaps only students of public broadcasting will see the revolutionary nature of Mrs. Rockefeller's remark. For the point of subsidized radio has never been to maximize its audience, and certainly not to maximize its income. It has always been sustained instead on an odd, but sturdy, rationale: Public broadcasting needed to exist because its programming wasn't terribly popular. The dissemination of certain kinds of music and arts programming was a good in itself, and the government had an interest in roping off a part of the marketplace for its preservation. After all, if arts programming were sufficiently popular, the market would take it up--as the market has, for example, in the cataract of commercial talk and news stations flooding every region of the country, the very stations that public radio has now chosen to compete with. Pursue Mrs. Rockefeller's line of reasoning, on the other hand, and you're led quickly into absurdities: If a public radio station is in the "business" of drawing big audiences, why not fill its airwaves with Green Day or Alicia Keys and really pull 'em in?
Ann Althouse disagrees:

Andrew Ferguson, writing in the Weekly Standard, doesn't like that his local NPR station is going from classical music to all news and talk. And he's arguing that this format change is a reason why public radio ought to be privatized. I would argue the opposite: public radio is most justifiable in the news and talk format.

I listen to WERN here in Madison, but only if it has a news or talk show on. If I turn on the radio and hear classical music, I turn it right off and am, in fact, irritated that they are using the public station for that purpose. I don't hate classical music -- Ferguson calls it "beautiful and intelligent music." But it is only listened to by a small segment of the population, no doubt the more affluent folks who are perfectly capable of purchasing all the easily available classical music they want on CD or as digital files.
I disagree with that generalization. I grew up listening to classical music on NPR, but I wasn't even remotely affluent, and I certainly couldn't have afforded to buy recordings of all the music that I heard on NPR. Yes, richer (and older) people might appreciate classical music more often on average. But if NPR has any purpose at all, in my opinion, that purpose includes providing a free resource that allows poorer people to share in the classical artistic heritage that they otherwise would miss. One might as well argue that because rich people are more likely on average to appreciate the works of classic authors like Shakespeare, government-funded schools should forget about teaching the classics ("Let the rich buy their own lessons on Shakespeare!"), and instead focus English classes on the more popular works of John Grisham and the like.
But the audience for classical music does not deserve special favors. They got what they wanted in the past precisely because they were the affluent people who would respond to fund drives. Now that the baby boomers have filled up the affluent demographic, the same dynamic is pushing out classical music, because not many baby boomers care about classical music. Quit whining about the advantage you're losing and ask yourself whether you ever deserved that advantage in the first place.
There were probably plenty of baby boomers in charge 10 years ago as well. I don't think we're dealing with a generational change as much as a philosophical change.
It's not enough to say that classical music is "beautiful and intelligent." Nearly everyone thinks the music they like is the best.
Speaking as an inveterate elitist snob here: If everyone thinks the music they like is the best, most of them are wrong. Would Althouse espouse such relativism in any other context? Everyone has their own tastes; therefore, Rembrandt is no better than Thomas Kinkade, and Citizen Kane is no better than Scooby Doo 2?
I do realize that there has always been an argument about cultivating a new audience for classical music, and that telling people who already like it to buy their own CDs is not enough because we need new people to encounter it on the radio, where they can learn to like it. But why should the government care which genre of music people decide to like? Why isn't the marketplace enough?
I don't get this. Ferguson's whole point is that if one views NPR as serving the marketplace, the rationale for NPR disappears altogether. Conversely, note Althouse's point above that NPR is "most justifiable in the news and talk format." How so? On Althouse's reasoning, why should the government care how or where people ingest their news? Why isn't the marketplace enough there too, particularly if NPR is simply aiming for popularity along with every other news outlet?

Stuart Buck

Underlining Books

On perusing a copy of David Chalmers' The Conscious Mind that I purchased recently, I was shocked to find that the previous owner had highlighted portions of the text up to and including the last page. This was unexpected, I realized, because in every other used book I have ever bought -- quite a few -- the underlining/highlighting starts hard and heavy in the first chapter, starts petering out in the second chapter or thereabouts, and completely disappears after that.

From that pattern, you can infer one of two things:

1. Authors put all of their important or memorable points in the first two chapters, while the rest of the chapters are superfluous fluff; or,

2. Authors OUGHT to put all of their important or memorable points in the first two chapters, because hardly anyone reads past that point anyway.

Stuart Buck

Friday, February 18, 2005

New Book on Harvard Law

There is a new book on Harvard Law School: Andrew Peyton Thomas's The People vs. Harvard Law: How America's Oldest Law School Turned Its Back on Free Speech. Peyton Thomas is a Harvard Law graduate himself, and wrote an amazingly thorough biography of Justice Clarence Thomas that was published in 2001. Here's what the publisher has to say about the new book:
In 2002, Kiwi Camara, a Filipino-American student studying at the Harvard Law School, joined most of his classmates in posting his class outlines for the previous year on the school website. But in his notes, Camara had used shorthand terms that some regarded as racial slurs. In the furor that followed, administrators proposed a speech code to prohibit members of the law school community from voicing racially insensitive remarks. The chain of events triggered by this decision convulsed the nation’s oldest and most prestigious school of law, and called into question its commitment to freedom of speech and basic constitutional liberties.

The clashing ideas and personalities of this case are at the core of The People v. Harvard Law. In this fascinating insider’s account, Andrew Peyton Thomas recounts how the school’s intellectual heavyweights — Charles Fried, Alan Dershowitz, Laurence Tribe, Charles Nessen [sic] and others — were drawn into open conflict with each other and with the administration. Thomas takes us into the administrative offices, faculty lounges and classrooms, showing that the Camara case is only the latest front in a culture war that has ravaged Harvard Law over the last 25 years. Racial demagogues have challenged its integrity and sense of mission; a growing cadre of Marxist-inspired professors have taught that American law is a sham controlled by white capitalist oppressors; and students who dissent from this smothering orthodoxy are hissed at in class and openly harassed throughout the school.
That last sentence sounds a bit overheated. In any event,
it occurs to me that there have been quite a few books about Harvard Law School: Then there was the movie The Paper Chase. It's a bit bizarre to see so much attention paid to one law school.

Stuart Buck

Wednesday, February 16, 2005

Commons Paper

An interesting paper:
An Economic Theory of Infrastructure and Sustainable Infrastructure Commons

Loyola University of Chicago, Law School

The open access (commons) vs. private control debate is raging. It takes place in a number of fields, including the intellectual property and cyberlaw literatures, as well as broader public debates concerning propertization, privatization, deregulation, and commercialization of such diverse things as communications networks, government services, national forests and scientific research. On the private control side, there is robust economic theory in support of the market mechanism with minimal government regulation. By contrast, on the open access side, there is a frequent call for protecting the "commons," but the theoretical support for this prescriptive call is underdeveloped from an economics perspective. In fact, many that oppose propertization, privatization, deregulation, and commercialization view economics (the discipline) with sincere suspicion and doubt.

In this article, I embrace economics and develop a theory of infrastructure that better explains why, for this particular class of important resources, there are strong economic arguments for managing and sustaining the resources as commons. The approach taken differs from conventional analyses in that it focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers.

The key insights from this analysis are that infrastructure resources generate value as inputs into a wide range of productive processes and that the outputs from these processes are often public goods and nonmarket goods that generate positive externalities that benefit society as a whole. Managing such resources as a commons is socially desirable when doing so facilitates these downstream activities.
Stuart Buck

Tuesday, February 15, 2005

Television Commercials

Norman Mailer argues here that television commercials (1) undermine children's ability to concentrate, hence (2) undermining their ability to read, and therefore to learn.

He points out:
Soon enough, children develop a fail-safe. Since the child knows that any interesting story will soon be amputated by a kaleidoscope of toys, food, dolls, clowns, new colors and the clutter of six or seven wholly different products all following one another in 10-, 20- and 30-second spots all the way through a three-minute break, the child also comes to recognize that concentration is not one’s friend but is treacherous. For soon enough, attention will be turned inside out.
I couldn't agree more. Commercials teach children not just greed and lust for the products advertised, but more importantly, they teach children that you shouldn't expect to concentrate on a narrative for more than 7 minutes at a stretch. If you do expect a continuous story-line, you'll be sorely disappointed, because the story is going to be regularly interrupted for flashy advertisements that are completely irrelevant. Commercials are inherently antagonistic to the ability to concentrate.

Stuart Buck

Black Box

I'm not sure what to make of this story.

Stuart Buck


It was a outrage that Keane wasn't even nominated for the best new band. Keane's album has more hooks than about 99% of all the albums I've ever heard, and the lead singer has one of the top 3 or so voices that I've ever heard from a pop singer (the other nominees are not even remotely in the same league there). I didn't necessarily expect Keane to win outright, because some voters might have different tastes. But not even nominated? Sheesh.

Stuart Buck

Sunday, February 13, 2005


There are a lot of interesting -- and troubling -- observations in this Boston Globe article describing "what happens when you get a bunch of spooks, lawmakers, gadget geeks, and military interrogators together in a hotel conference room and ask them to talk -- on the record":
The greatest frustration was evident in rank and file intelligence and law enforcement officers. After explaining his various psychological tactics to the audience, interrogator Bill Tierney (a private contractor working with the Army) said, ''I tried to be nuanced and culturally aware. But the suspects didn't break.''

Suddenly Tierney's temper rose. ''They did not break!'' he shouted. ''I'm here to win. I'm here so our civilization beats theirs! Now what are you willing to do to win?'' he asked, pointing to a woman in the front row. ''You are the interrogators, you are the ones who have to get the information from the Iraqis. What do you do? That word 'torture'. You immediately think, 'That's not me.' But are we litigating this war or fighting it?''

Some listeners murmured in assent; others sat in rapt attention. In all the recent debates about the Bush administration's stance on torture, this voice, the voice of the interrogators themselves, has been almost entirely absent.

Asked about Abu Ghraib, Tierney said that for an interrogator, ''sadism is always right over the hill. You have to admit it. Don't fool yourself - there is a part of you that will say, 'This is fun.'''

It is that part, he continued, that a successful interrogator has to learn to identify and control. ''Right now the Army wants to get interrogators right out of high school,'' he said. ''A high school grad does not have the maturity to handle this job. There was a 19-year-old with me in Baghdad. What's going on in her head is what kind of fingernail polish she's going to wear. And she's sitting across from a guy from Yemen....'' His voice trailed off.

* * *

This notion was given starker expression by a former Marine Corps officer on a panel about military intelligence collection within the United States. When queried about interrogation techniques, he replied simply, ''I'm a fan of 220 volts,'' and was greeted with scattered applause.

The Marine Corps officer was joined on that panel by a barrel-chested former CIA operative, whose conference bio says he ''ate, slept, and drank with narco-terrorists and smugglers.'' This man said that earlier in his career he had been ''called on to do things that are pretty nasty in some instances, things we don't want anyone to know we do.'' By way of elaboration he said, ''If my job was to take you down and I showed up on your doorstep, it was gonna be a bad day. Now, does that mean I break the American laws? No.''

He paused, then added, ''I hope not.''

* * *

On one panel, Rebecca Givner-Forbes, a recent graduate of Georgetown who studied Arabic in college, explained that the Arabic taught in most American universities is a little like Latin or Shakespearean English. ''You can't learn Modern Standard Arabic and just drop into a country and know what people are saying,'' she said.

* * *

Givner-Forbes did not pursue a job at the NSA or CIA, preferring instead to work for a private company specializing in intelligence. She explained that the agencies often scare away precisely the linguists they should be attracting. She mentioned a friend who wanted to work for NSA but had smoked pot in the past year, and was therefore ineligible, and pointed to the 20 Arabic linguists who have been fired by defense and intelligence agencies since Sept. 11 for being gay: "You're not going to find the perfect translator who fits all your lifestyle requirements."

* * *

At a panel on intelligence reform, Michael Scheuer -- the formerly anonymous author of ''Imperial Hubris,'' a blistering critique of US policy on terrorism, and until several months ago a CIA counterterrorism officer -- questioned the conclusion, put forward by the 9/11 Commission and others, that the Al Qaeda attacks were the result of institutional failures

* * *

Scheuer contended that 9/11 commissioners and politicians were driven by the families of the dead to pass a hasty piece of legislation that will not make Americans safer. ''With all due respect to the widows,'' he said, ''they don't know jack about running intelligence.''

The other panelists hastened to agree.
Stuart Buck

Friday, February 11, 2005

More on Law Reviews

I see from Orin Kerr that the Harvard Law Review in particular has now said that it prefers articles under 25,000 words or 50 law review pages. This reminds me that when I was a student editor, Harvard Law Review accepted this piece for publication. You may not want to download the entire PDF file, however, because it is 460 pages long.

At the time, I thought that it was the height of ridiculousness for an academic journal to publish a 460-page "article" that should have been published as a book. Needless to say, my views did not prevail. The article came along during my third year, when I had come to sympathize with the reason that the famous judge Learned Hand gave for resigning from the Harvard Law Review after four months.1 I'm just glad I graduated before the article had to be cite-checked.

1As quoted in Gerald Gunther's biography Learned Hand: The Man and the Judge 44-45 (1994), Hand said that he had gone to law school "to get a legal education, not to edit or write parts of a magazine, a law magazine."

Stuart Buck


Bruce Ackerman's essay on forthcoming Supreme Court nominations offers the cliched parade of horrors that will ensue if the balance on the Supreme Court changes towards the right. There's nothing in that analysis that hasn't been written dozens of times elsewhere. But at least his terminology seems to be new:
There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.
Ackerman spends the rest of the essay describing Scalia and Thomas as "neo-cons."

What a weird choice of terms here. "Neo-conservative" originally described "new" conservatives who had migrated from the left to the right. Proto-typical neo-conservatives included Irving Kristol, Norman Podhoretz, and other intellectuals (mostly, but not always, Jewish) whose views included an aggressive foreign policy, a rejection of the isolationism that characterizes Pat-Buchanan conservatives, a disillusionment with the welfare state, and a general instinct to prefer American "greatness" over minimizing government at all costs.

Until now, however, I've never heard anyone use the term "neo-conservative" to describe Supreme Court Justices. The term is inapt in every conceivable way. It's as if someone criticized the war in Iraq by deeming it an example of "original intent jurisprudence."

Stuart Buck

Thursday, February 10, 2005


Bush Offers 'Ownership Society' Drug Benefit

by Scott Ott

(2005-02-09) -- The Bush administration today announced it would pay for the re-estimated $1.2 trillion 10-year cost of the new Medicare drug benefit by applying the president's "ownership society" vision to the use of pharmaceuticals by the elderly.

Under the terms of the plan, senior citizens who need prescription medications would work up to 20 hours per week in local drug manufacturing facilities, counting and packaging pills, to earn medication credits (called 'dosage dollars') and shares of stock in the companies.

"When you give people a handout, it demeans them and creates dependency," President Bush told a cheering sell-out crowd on his Social Security Reform 'Rock the Lockbox' Tour. "We need to let America's seniors maintain their dignity through meaningful work and give them a chance to own a piece of the companies that sell the drugs."
Stuart Buck

Wednesday, February 09, 2005

Catholic Men

A scathing op-ed from my friend Rod Dreher:
With Pope John Paul II ailing, Catholics are starting to think about the next pope. My choice? Marine Corps Lt. Gen. James Mattis, the crusty leatherneck now in trouble for saying that in war, it's fun to shoot bad guys.

The Marine general told his audience: "You go into Afghanistan, you got guys who slap women around for five years because they didn't wear a veil. You know, guys like that ain't got no manhood left anyway. So it's a hell of a lot of fun to shoot them."

Whoa! That's a real man talking. OK, OK, I'm not serious about wanting the Marine Corps' Dirty Harry serving as the Vicar of Christ. Still, my church needs a leader who takes visceral satisfaction in delivering justice to bullies. If John Paul had pitilessly shot down the careers of molester-shuffling American bishops early on, the church would be a better place today.

* * *

Why aren't the men who run the Catholic church raging against the cruelty of priests who prey on kids? Why do so many good priests and Catholic laymen remain as docile as eunuchs despite it all? Do we think we're not going to have to answer to God for our moral cowardice?
Stuart Buck

Tuesday, February 08, 2005

Law Reviews

Several of the top law reviews have decided that law review articles are getting entirely too long, and have jointly declared their intent to seek articles that are under 70 pages. (For comparison, I've read scholarly articles in economics, anthropology, sociology, philosophy, political theory, and more, and in each of those disciplines, 70 pages would be an obscenely long article.)

What's interesting is that the Yale Law Journal -- one of the journals that is supposedly interested in shorter articles -- very recently published this article by Yochai Benkler. The article is 86 pages long. What I find amazing it is labeled an "Essay," which is the term that law reviews usually reserve for shorter pieces, as opposed to "Articles," which are supposed to be longer. Yale Law Journal is not alone, of course, in the startling behavior of treating an 86-page article as if it were a mere trifle that someone tossed off. It will be interesting to see if law reviews are serious about their purported interest in shorter articles.

Stuart Buck

Sunday, February 06, 2005

Goldberg vs. Cole

By now, lots of people have commented on the fight between Jonah Goldberg and Juan Cole. Goldberg's original column said this:
After the Iraqi elections he harrumphed on his Web site that he was "appalled" by the media's cheerleading of the election. He absurdly declared that the 1997 Iranian elections were much more democratic (Iranian candidates had to be approved by the mullahs). He whined that Bush did not originally intend to have elections of this sort and only agreed when Ayatollah Sistani insisted. Suddenly, Bush the rigid ideologue is too flexible. Most telling, Cole offered a world-weary sigh that "This thing was more like a referendum than an election."
Cole took offense, and made several points in response, including the fact that he knows more than Goldberg about Iraq (true enough), and that Goldberg supported the war based on overestimations of Iraq's nuclear capabilities (true, but not relevant to the question whether Iraq's election was democratic). He also disputes Goldberg's actual point, and still maintains that Iran's 1997 election was more democratic than Iraq's election in several ways.

I wonder what has seemingly changed Cole's mind since he wrote this editorial last year. In it, he repeatedly (a) gave unqualified praise to Sistani's plans for a democratic election in Iraq, and (b) contrasted Sistani's plan with Iran's failure to be sufficiently democratic. To quote:
Grand Ayatollah Ali Sistani of Iraq has called for free and fair elections on the basis of one person, one vote. . . . Sistani's position that legitimate government must reflect the will of the sovereign people echoes Enlightenment thinkers such as Rousseau and Jefferson, and promises a sea change in Middle Eastern politics.

Elected parliaments are common in the Middle East, but they often have more of the form than the substance of democracy. . . . In Iran, the clerical Guardianship Council has excluded thousands of candidates from running, including sitting members of parliament. . . .

Democracy as a value is widely accepted in the Middle East, as polls show. Governing elites in the region, however, have attempted to limit the sovereignty of parliament through institutions that wield arbitrary power. . . . In Iran, the hard line clerics regularly intervene to overrule the elected legislature.

In Iran, the electorate is free to vote as it pleases, but candidates themselves must be vetted by the clerical Guardianship Council. That council declared thousands of candidates ineligible to run in elections originally scheduled for late February, questioning their commitment to Islamist ideology. The ruling threw Iran's politics into chaos, with its reformist President Khatami suggesting elections would be postponed. On February 1, the twenty-fifth anniversary of the Islamic revolution, some 40 percent of members of parliament angrily tendered their resignations, raising the stakes in a tense game with their hard line opponents.

* * *

Sistani, among the foremost legal authorities in the Muslim world, has adopted into Islamic law the principle that a government can only be legitimate if it derives from the will of the people. . . . Sistani's ruling is therefore an implicit challenge to the hard liners in Iran, as well as to those in the Bush administration who had hoped to control the outcome of Iraq's elections. In some ways, from Sistani's point of view, the Bush hard liners and the Iran hard liners are both attempting to undermine the sovereignty of the people.

If the United States insists on stage-managing Iraq's elections, it will miss a historic opportunity for Iraq to serve as a showcase for democracy that could contrast with Iran's legacy of authoritarianism and deadlock. Iraqis must feel that the procedures that produce their interim government, even if not perfect, are as fair and democratic as possible under the circumstances. Should the United States disappoint them, it could give democracy a bad name and hurt not only the stability of Iraq but the fortunes of reform in Iran.
Stuart Buck

Bad Writing

I just tried to start reading a spy novel by Robert Littell: The Sisters. Amazon calls Littell one of our top writers of intelligent, ironic, and always entertaining espionage thrillers. I couldn't get much past the first page, however.

Here are the first two sentences:

"'I'm just thinking out loud," Francis was saying. An angelic smile manned the usual fortifications of his face."

We've only reached the second sentence, and I'm already bored. Moreover, nothing about the opening seems to work. Innumerable questions arise, just from those two sentences: How does a smile "man" anything? What is a "usual fortification"? Moreover, what is a "fortification" of someone's face? Again, how are facial "fortifications" "manned"? Why are such metaphors -- implying something medieval and military -- used to describe an "angelic" smile? Why is this so-called Francis smiling angelically at all, given that (if you read the rest of the page) he is merely beginning a discussion of hiring someone with "Mafia connections"? What's to smile about that? Why doesn't he simply have a normal and serious expression for that topic? In fact, why do we have to plow through overblown descriptions of his facial expressions in the first place?

The rest of the first page goes on in that vein, which is why I immediately quit reading. Maybe I'm missing out on a great book with an inauspicious beginning, but I don't want to waste the time to find out.

Ah, well. This reminds me why I usually don't like "intelligent" fiction.

Stuart Buck

Imputed Rental Income

A comment from Mark Kleiman:
The egregious tax loophole is the non-taxability of the imputed rental income on owner-occupied housing. A renter has to pay income tax on the money he earns to pay the rent, but a homeowner pays no tax on the money he saves by owning.
I know that some analysts favor taxing "imputed rental income," i.e., the money purportedly saved because a homeowner owns and occupies a home rather than renting it out. But I don't know why that idea makes sense, let alone so much sense that the absence of such taxation is an "egregious" "loophole."

Why be taxed on the theoretical income you supposedly could gain from renting out something you own rather than using it? The theory seems to be that "income" includes all of the value that you receive from any source -- not just money, but also including services or benefits of any kind (including those that you provide for yourself).

Thus, the exact same theory that is used to support imputing rental income also supports imputing income whenever you:

(a) wash your own dishes rather than paying a maid to do it,

(b) take care of your own children rather than hiring a babysitter or daycare,

(c) clean your own house

(d) use your own furniture rather than renting it out (leaving your house empty, I suppose),

(e) dress yourself in the morning rather than hiring a butler.

In each of these cases, the theory is absolutely identical: You are "receiving" a "benefit" compared to people who have to pay for each of these services or goods in the marketplace, and thus (the theory goes) you have additional "income" to be taxed. This is no exaggeration. Some people argue that stay-at-home mothers should be be taxed on the value that the household "gains" from the fact that she provides many household services that two-earner families have to purchase. Indeed, the famous economist William Vickrey even wrote that "money income from gainful work is subject to an income tax while imputed income from leisure is not taxed . . . Accordingly, an income tax tends to make individuals choose leisure in preference to gainful work to an uneconomical extent."

All of this implies that people could be taxed on the value they "gain" when a parent is free to attend a child's soccer game rather than working late at the office.

There are two simple reasons that the very idea of such taxation seems misguided. First, "income" should mean some benefit that you receive from someone outside of your household. (I.e., when something literally comes in from elsewhere.) When you get a paycheck: income. If an employer pays for you to have a free athletic club membership: income. If you win a free car in a contest: income. If your neighbor mows your lawn for free: income (although not the kind that anyone bothers about reporting, I suspect). But when you switch your own money from one pocket to the other (as opposed to lending it to someone else at current interest rates), or buy your own athletic club membership (and do not in turn rent it to someone else), or buy your own car (same), or mow your own lawn, it seems ridiculous to call that "income." Same for buying your own house.

Second, it seems unfair that a particular tax should be structured in such a way that you can't even conceivably avoid paying it. If you don't want to pay property taxes, for example, you can avoid them by not owning property. You can avoid car taxes by not owning a car; capital gains taxes by not owning or selling capital; sales taxes by not buying things; and so forth. But the above theory of income tax would mean that no one could ever avoid having "income," no matter what. If you don't have any real income from a job -- whether because you are a volunteer or a student or a stay-at-home parent or a retiree -- the theory still says that you should be taxed on the "imputed" value of anything that you do for yourself, or even your own leisure time.

Stuart Buck

Conservative Christians and the Environment

There is No Tomorrow

by Bill Moyers

* * *

Go to Grist to read a remarkable work of reporting by the journalist Glenn Scherer -- "The Road to Environmental Apocalypse." Read it and you will see how millions of Christian fundamentalists may believe that environmental destruction is not only to be disregarded but actually welcomed -- even hastened -- as a sign of the coming apocalypse.

As Grist makes clear, we're not talking about a handful of fringe lawmakers who hold or are beholden to these beliefs. Nearly half the U.S. Congress before the recent election -- 231 legislators in total and more since the election -- are backed by the religious right.
The Greening of Evangelicals

* * *

There is growing evidence -- in polling and in public statements of church leaders -- that evangelicals are beginning to go for the green. Despite wariness toward mainstream environmental groups, a growing number of evangelicals view stewardship of the environment as a responsibility mandated by God in the Bible.

"The environment is a values issue," said the Rev. Ted Haggard, president of the 30 million-member National Association of Evangelicals. "There are significant and compelling theological reasons why it should be a banner issue for the Christian right."

In October, the association's leaders adopted an "Evangelical Call to Civic Responsibility" that, for the first time, emphasized every Christian's duty to care for the planet and the role of government in safeguarding a sustainable environment.

"We affirm that God-given dominion is a sacred responsibility to steward the earth and not a license to abuse the creation of which we are a part," said the statement, which has been distributed to 50,000 member churches. "Because clean air, pure water, and adequate resources are crucial to public health and civic order, government has an obligation to protect its citizens from the effects of environmental degradation."

Signatories included highly visible, opinion-swaying evangelical leaders such as Haggard, James Dobson of Focus on the Family and Chuck Colson of Prison Fellowship Ministries. Some of the signatories are to meet in March in Washington to develop a position on global warming, which could place them at odds with the policies of the Bush administration, according to Richard Cizik, the association's vice president for governmental affairs.

Also last fall, Christianity Today, an influential evangelical magazine, weighed in for the first time on global warming. It said that "Christians should make it clear to governments and businesses that we are willing to adapt our lifestyles and support steps towards changes that protect our environment."

The magazine came out in favor of a global warming bill -- sponsored by Sens. John McCain (R-Ariz.) and Joseph I. Lieberman (D-Conn.) -- that the Bush administration opposed and the Republican-controlled Senate defeated.
UPDATE: Do read this post at Powerline for the details on how Bill Moyers fraudulently attributed a quote to a Reagan cabinet secretary [FURTHER UPDATE: Moyers has now apologized], and completely misinterpreted yet another quote from Zell Miller.

Stuart Buck

Saturday, February 05, 2005


John Holbo has some useful thoughts on the impropriety of pretending that all left-wingers (or right-wingers) are represented by the worst ideological extremes. Bloggers do it all the time -- cherry-pick a completely indefensible statement by an obscure extremist on one side or the other, and then blame the entire other side for supposedly agreeing with (or failing to denounce in vigorous enough terms) the extremist. A left-winger (or a right-winger) could spend all day culling out objectionable posts from Free Republic (or Atrios or Daily Kos), and then pretending that such posts represent a complete lack of intelligence or good-will on the right (or the left). But such extrapolations are misleading and unfair.

But people do tend to extrapolate from their own personal experiences, like it or not. A liberal who grew up in a small town in red-state America might end up running into unintelligent and closed-minded conservatives, and might then reason (falsely) that all conservatives share those characteristics. A conservative who attends an Ivy League school might run across some provincial and self-righteous liberals, and might then reason (falsely) that all liberals are intolerant. In either case, the availability heuristic is kicking in, causing people to overestimate the prevalence of something merely because they personally witnessed it.

Indeed, due to the availability heuristic, I wonder if blogging (or the Internet more broadly) has increased the level of hostility amongst intelligent people on either side of the political divide. Bloggers in general seem to be drawn to controversy -- i.e., pointing out the idiotic things said by someone on the other side, commenting on the above, purporting to rebut the above, etc., etc. This can all be quite entertaining, but it causes both sides to be more aware of the idiotic things that are occasionally said on the other side. This in turn causes them to overestimate the other side's idiocy, which in turn causes hostility to rise even further because each side feels that the other side is wildly exaggerating. It's a vicious circle.

Stuart Buck

New Pantagruel

Lots of interesting reading over at The New Pantagruel, whose winter issue just came out.

Stuart Buck

Friday, February 04, 2005

Bush v. Gore

This paper looks like a unique defense of the Supreme Court's ruling in Bush v. Gore:
Is There a First Amendment Defense for Bush v. Gore?

Fordham University - School of Law

Fordham Law Legal Studies Research Paper No. 70
Notre Dame Law Review, Forthcoming

The Supreme Court's ruling in Bush v. Gore attracted an enormous outpouring of critical response. But there is a defense for the merits holding of Bush v. Gore that has not received adequate attention. In a well-established line of free speech and press cases, the Court has insisted that state law carefully circumscribe the discretion of local officials to pass on applications for parade permits and the like. The "Lovell doctrine," named after the first case in this line, permits facial challenges to such laws, to ward off the risk of administrative bias that might be too difficult to show on a case by case basis. Similarly, the Florida statutory provisions asking local county officials to determine "voter intent" when manually recounting ballots may be thought to vest too much discretion in officials who are highly subject to the tugs of partisan political connections. Just as rights of political participation are at stake in the Lovell doctrine cases, so were they at stake in the 2000 presidential election, whether seen as the rights of the candidates or the voters. This Article develops the analogy between the Lovell doctrine and the Florida election law that the Court confronted in Bush v. Gore. It provides a detailed account of the Lovell line cases and a critique of the scholarship in the area. It builds a prima facie case for importing the Lovell doctrine into the election law setting, and responds to several objections to so doing. It also responds to two challenges raised by Justice Stevens in his Bush v. Gore dissent, both involving the possibility that objective ballot counting rules could have been set and applied in a disinterested fashion by state judges. If we accept the application of this long line of First Amendment caselaw to the setting of ballot counting, then we can read Bush v. Gore as a narrow but powerful precedent, limiting the power that States may delegate to local officials to determine what counts as a vote, but not extending to other, mechanical differences that might exist within a State.

Stuart Buck


A Cincinnati news station has interviewed various victims of a sex-abuser priest that the Cincinnati archbishop failed to report. (This, despite the archbishop's flat-out lie in claiming to have reported every instance of sexual abuse as required by Ohio law.) The news station even uncovered various damning letters: "These documents obtained from the personnel file of Father David Kelley, who has been removed from ministry, show the Archbishop and his advisors knew of Kelley's alleged crimes against children in the mid-1980's."

Stuart Buck

Thursday, February 03, 2005

The Serial Comma

John Rosenberg has a very thorough discussion of the serial comma.

Stuart Buck

Wednesday, February 02, 2005


Baseball Crank makes a good point:
Quite simply, college ensures that, at a fairly young age, most conservatives get the experience of being surrounded by people who vocally disagree with their political opinions, which teaches you to keep your head down a bit and stay civil. This is reinforced by the fact that a lot of us watch movies and listen to music made by people whose political opinions we find repugnant. I think a lot of liberals, particularly the more vocal ones on the internet who grew up in blue-state cities and went to blue-state colleges and got into blue-state occupations like the law or academia, just don't have the same formative experience of having had to reconcile themselves to political disagreements with people they otherwise like or respect, and it shows
Stuart Buck

Defending Acts of Congress

Baseball Crank (a Harvard Law grad) analyzes a recent D.C. Circuit decision that considers whether the government might be liable for attorneys' fees because its position was not "substantially justified," even when that position was merely to argue on behalf of the constitutionality of an act of Congress.

Stuart Buck

Tuesday, February 01, 2005


Now that I think about it, the study mentioned in the previous post is likely misguided when it says, "policy makers might do well to study the home-education model and explore ways in which the benefits could be adapted into mainstream education."

To the extent that this means that educators who are fans of obviously inferior methods (such as whole language) would do well to learn from homeschoolers' use of obviously superior methods (such as phonics), it is on the mark. But outside of methods, there really isn't much that public schools can do to emulate the virtues of homeschooling.

Think about it. Why would homeschooling be beneficial, even (or especially) for people in lower socioeconomic classes? Several reasons come to mind:

1. Intense involvement by parents in the education of their children. By definition, no outside school can match this factor.

2. Extremely low pupil-to-teacher ratios. The typical public school teacher has 20-30 kids. The typical homeschooler might have 3-5 -- maybe up to 10 or so in very rare cases. Thus, the pupil-to-teacher ratio is typically 7 to 10 times better for homeschoolers. There's no way for public schools to match this without hiring 7 to 10 times more teachers. I have my doubts as to whether this is a realistic possibility.

3. The teacher can select and adjust all of the curricula to an individual student's needs, abilities, and interests. Again, I don't think this is realistically possible for the average public school kid.

4. Avoiding destructive and distracting socialization. This may seem counterintuitive -- particularly to those whose first instinct is to question homeschooling for a supposed lack of "socialization" -- but I think it is very likely true. Students are overwhelmingly better able to concentrate and learn when they are not in the company of 20 other kids their own age, who are a constant source of distraction and misinformation (at best), or active enmity or bullying (at worst). As I could speak from personal experience, when you put a child around several other children, the amount of noise/inanity/silliness/pestering goes up exponentially. The result is that learning is accomplished only in the sliver of time that is left over after the harried teacher gets a child to pay attention.

All of the above factors are to the advantage of homeschooling, in ways that public schools can't feasibly match.

Stuart Buck


Home School Study

A UK researcher has published a study of homeschooled children. See Paula Rothermel, Home-Education: Comparison of Home- and School-Educated Children on PIPS Baseline Assessments, Journal of Early Childhood Research, Vol. 2, pp. 273-99. The results are utterly typical: Homeschooled children do just as well or far better than their peers. Interestingly, she begins the article by noting a distinct difference between the UK and most American states:
School is not compulsory in the United Kingdom . . . In the UK it is not necessary either to register as a home-educator or to ask anyone’s permission. There are believed to be about 50,000 children being home-educated throughout the UK (Meighan, 1997), but no one knows just how many there really are. Many parents choose to avoid contact with their local education authority (Lowden, 1993).
She also noted an earlier study of her own that found a less significant difference between homeschooled boys' and girls' performance:
From p. 288:

Rothermel (2004) found that whilst girls still outperformed the boys, the difference, unlike most national samples where girls are seen to excel (e.g. Sukhnandan et al., 2000), was not significant.
Also interestingly, Rothermel found that socioeconomic status was not the reason that homeschooled children did well. To the contrary, homeschoolers with low socioeconomic status were able to outpace their schooled peers:
From p. 293:

All the children scored good marks, whatever their background and family structure. However, contrary to the findings of Tymms et al. (1997) the home-educated children from the lower socio-economic groups scored significantly higher than those with professional parents on the Registrar General’s classification (Rose and O’Reilly, 1998). The most obvious reason for their doing well, and one that is supported by evidence from other sources, is that home-educated children are, at least amongst their own ranks, free from the stigma of being poor, simply because they are not learning in an environment where affluence and labelling are an issue.

* * * From p. 294:

The key to performance irrespective of background was, it seemed, the availability of parent[s] to spend time with their children, since at least one parent in each family was continually present throughout this period of their child’s life. Desforges and Abouchaar (2003) have also commented on the importance of parental attention in children’s attainment.
Rothermel's findings lead her to suggest that far from parents being tutored in the art of teaching by trained educators, things should be the other way around:
The fact that findings here contradict the many studies linking social class to low attainment (e.g. Feinstein, 2002) suggests that policy makers might do well to study the home-education model and explore ways in which the benefits could be adapted into mainstream education.

From page 295 [quoting another study]:

Indeed, in our opinion, it is time to shift the emphasis away from what parents should learn from professionals, and towards what professionals can learn from studying parents and children at home.
Stuart Buck


George Soros

From a recent op-ed by George Soros1:
Paradoxically, the most successful open society in the world, the U.S., does not properly understand the first principles of an open society; indeed, its current leadership actively disavows them. The concept of open society is based on recognition that nobody possesses the ultimate truth, that one may be wrong. Yet being wrong is precisely the possibility that Bush refuses to acknowledge, and his denial appeals to a significant segment of the American public. An equally significant segment is appalled. This has left the U.S. not only deeply divided, but also at loggerheads with much of the rest of the world, which considers its policies high-handed and arbitrary.
"Nobody possesses the ultimate truth," and everybody "may be wrong." The obvious problem with any form of universal skepticism is that it undermines itself: Soros himself doesn't possess the ultimate truth, and if he is wrong in his views, then an "open society" does not have the virtues that he claims.

The same is true for the "rest of the world." According to Soros, the "rest of the world" thinks that Bush's policies have been "high-handed and arbitrary." That's fine and well as far as it goes, but according to Soros' own principles, the "rest of the world" has just as much obligation to consider the fact that they do not possess "ultimate truth" and that they may have misjudged Bush. Oddly enough, Soros never -- whether in this column or in any other op-ed of his that I've seen -- even hints at the possibility that the "rest of the world" may be anything other than infallible in their estimation of President Bush.

1Disclosure: I'm acquainted with his son Jonathan, who was in my class at Harvard Law School and who clerked for Judge Stephen Williams the year before me.

Stuart Buck