The Right Coast

December 31, 2004
New OLC Memo on Torture
By Mike Rappaport

Just in time for Alberto Gonzalez's appearance before the Senate Judiciary Committee next week, the Office of Legal Counsel has issued a new memo on torture.

Based on the New York Times report at least, it appears to cut back on the definition of torture, but still has a relatively narrow definition:

[The 2002 memo says] that "when the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure," adding, "Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm."

In revising that view, the current memorandum parses the language and the treaty differently, saying, for example, that torture could include "severe physical suffering" as well as "severe physical pain." The [earlier] memorandum tried to limit torture to severe physical pain. But the new memorandum also noted that physical suffering is difficult to define.

Lessons and Carols from Kings, Cambridge
By Maimon Schwarzschild

You can listen to the annual "Service of Nine Lessons and Carols" from King's College, Cambridge, posted here by the BBC. (And here is the full text of the service, posted by King's College.) This is one of the most attractive Christmas events in England.

If you are ever in England at Christmas, and you don't have the pull needed to get coveted tickets to the King's event, there are similar services in many churches elsewhere in the country. I recommend St Martin-in-the-Fields, Trafalgar Square, candle-lit, the pews packed with Londoners. Or the Parliamentary Church of St Margaret's, Westminster, where one of the lessons always used to be read by Enoch Powell. There is nothing like this in the canonical Christian liturgy of course: "Nine Lessons and Carols" was invented in Cambridge in the 1920s, in the aftershock of the First World War. It is a British phenomenon as much as a Christian one. But there are now these services in Anglican churches everywhere in what had been the Empire: I once went to one in a whitewashed Anglican chapel in Dunmore Town, Eleuthera, in the out islands of the Bahamas. It followed the King's, Cambridge, pattern more or less to the letter.

Here endeth today's dose of nostalgia for the British Empire. But listen to the music: it's quite lovely.

UPDATE: One of the carols from King's is "In Dulci Jubilo": partly in English (but originally, in German), partly in Latin. These half-Latin, half-vernacular tunes are called "macaronic", and were very popular for centuries in Europe. "In Dulci Jubilo" was a favourite of J.S. Bach's. The mix of Latin and vernacular is a reminder of the spectrum that exists in any well-developed religion -- Christianity, Hinduism, Judaism too -- between scholars' sophistication and popular belief. As a kid, I learned sephardic songs that are partly in Ladino, partly in Hebrew; and German-Jewish songs whose texts are all Hebrew, but whose tunes were obviously old German military and drinking songs. (An uncle of mine used to mock them as "cheery little ditties from the Thirty Years' War".) Jews from Frankfurt-am-Main -- where the Schwarzschilds (and Rothschilds) came from -- were especially fond of these songs, which were passed down through the generations. I know at least a dozen of them. But how many other people still know any of them?

December 30, 2004
Shattered Glass
By Mike Rappaport

I recently caught this movie on HBO. The story of a New Republic writer who made up stories and was caught, remember, by the internet. Very interesting and enjoyable. The Glass story, especially as his lies were uncovered, seemed soemwhat reminiscent of the Michael Bellesiles fraud. The DVD, which I plan on renting, apparently has a 60 Minute interview with Glass (boy, who do you believe in that interview?).

Michael Kelly, who was killed last year in Iraq, has an important part in the movie. The film portrarys Kelly as a real class act, which he certainly seemed to be. How sad.

The World's Greatest Economy
By Mike Rappaport

The Wall Street Journal tries to introduce some perspective on the American Economy:

It becomes tedious to hear the "sluggish" mantra mindlessly repeated in the media, when the most cursory comparative analysis shows the U.S. economy performing robustly by international and historical standards. That's especially so when the same folks who carp about a supposedly sluggish U.S. economy advise us to adopt European-style labor regulations, tax rates and environmental standards, and to expand the government's reach into health care. At least in Europe there's a broad recognition that consistently low growth is the price to be paid for lavish social benefits.

Which brings us to a final point. To look closely at international economic data is to be reminded that countries with comparatively low tax rates and regulatory burdens consistently outperform countries with high ones. Of course it's nice to know that America's "sluggish" economy remains a world-beater. It's even better to know why.

December 29, 2004
On the First Day of Kwanzaa, My True Love Tortured Me ... (Reprise)
By Gail Heriot

I have been prevailed upon by my colleagues to repeat my post from last year. Rumor has it that we have picked up some readers since then ....

If you visit a card shop at your local shopping mall these days, chances are you will see Kwanzaa cards. It's big business. (Well, maybe it's just medium-sized business, but it is evidently lucrative enough for card companies to bother with.) And if you go to swanky private schools like the one attended by the children of my fellow Right Coaster Chris Wonnell, you may well receive instruction on this traditional African-American holiday. Taking Kwanzaa seriously is all part of the spirit of multiculturalism.

Except, of course, Kwanzaa isn't traditional at all. It was invented in the late 1960s by convicted felon Ron Everett, leader of a so-called black nationalist group called United Slaves. I use the word "so-called" because United Slaves' veneer of black nationalism was very thin; most of its members had been members of a South Central Los Angeles street gang called the Gladiators, just as the Southern California chapter of the Black Panthers drew its members from the Slauson gang.

In the early 1960s, these gangs were mostly concerned with petty and not-so-petty crime in the Los Angeles area, including the ever-popular practice of hitting up local merchants for protection money. By the late 1960s, however, they discovered that if they cloaked their activities in rhetoric of black nationalism, they could hit up not just the local pizza parlor, but great institutions of higher learning as well, most notably UCLA. Everett re-named himself Maulana Ron Karenga ("Maulana" we are told is Swahili for "master teacher"), donned an African dashiki, and invented Kwanzaa. And the radical chic folks at UCLA went into paroxysms of appreciation.

In theory, Kwanzaa is a Pan-African harvest holiday, except that it is not set at harvest time. And in theory, it celebrates the ties of African Americans to African culture, except that it purports to celebrate those ties using the East African language of Swahili when nearly all African Americans are descended from West African peoples.

But those are just details. Many of the best-loved holidays in the Christian calendar have traditions connected to them that don't quite fit if you examine them too closely. But those rough edges have now been smoothed over by the long passage of time. No one really cares if the Christmas tree was once used to celebrate pagan holidays; many generations of credible Christians have earned the right to claim it as their own.

Kwanzaa is different. It has connections to still-living violent criminals. To suggest that it is an "African American holiday" is an insult to the Black community, very few of whom celebrate Kwanzaa and even fewer of whom would celebrate it if they knew the full story of its recent history.

UCLA soon found that a bunch of street thugs calling themselves United Slaves can dress themselves up in colorful clothing, learn a few words of Swahili but they will still be ... well ... street thugs. The beginning of the end for United Slaves as an organization came with a gun battle fought on the UCLA campus against the Black Panthers over which group would control the new Afro-American Studies Center (and its generous budget). In the end, two Black Panther leaders--Alprentice "Bunchy" Carter and John Jerome Huggins--were dead. Two members of United Slaves were convicted of their murder. (Under UCLA's High-Potential Program, which admitted politically-active minority students during the late 1960s, often regardless of their academic credentials or even whether they had graduated from high school, many members of the Black Panthers and United Slaves were registered as students at UCLA.)

No, Maulana Ron Karenga was not among them. But not long after the incident, Karenga proved himself to be every bit as brutal as his followers when he was charged and convicted of two counts of felonious assault and one count of false imprisonment.

The details of the crime as reported in the Los Angeles Times (and quoted last year by Paul Mulshine in an article for FrontPage magazine) are horrific. The paranoid Karenga began to suspect that the members of his organization were trying to poison him by placing "crystals" in his food and around the house. According to the Los Angeles Times:

"Deborah Jones, who once was given the Swahili title of an African queen, said she and Gail Davis were whipped with an electrical cord and beaten with a karate baton after being ordered to remove their clothes. She testified that a hot soldering iron was placed in Miss Davis' mouth and placed against Miss Davis' face and that one of her own big toes was tightened in a vise. Karenga, head of US, also put detergent and running hoses in their mouths, she said."

The Los Angeles Times went on the state that "Karenga allegedly told the women that 'Vietnamese torture is nothing compared to what I know.' "

Karenga spent time in prison for the act. But if you are worried about what has become of him, you needn't be. He served only a few years. When he got out, he somehow convinced Cal State Long Beach to make him head of the African Studies Department. Happy Kwanzaa.

December 28, 2004
Anonymous lawyer
By Tom Smith

Here's a piece in the NY Times about the Anonymous Lawyer blog.

By Mike Rappaport

Richard Posner is guest blogging over at Brian Leiter's blog. Take a look. His response to comments from yesterday is pretty impressive. Here is my favorite bit:

I really do take the view--this is closely related to point 2 above--that the sort of political discussion in which political philosophers, law professors, and other intellectuals engage is neither educative nor edifying; I also think it is largely inconsequential, and I am grateful for that fact. I think that what moves people in deciding between candidates and platforms and so on certainly includes facts (such as the collapse of communism--a tremendous fact), as well as a variety of "nonrational" factors, such as whom you like to hang out with--I think that's extremely important in the choice of a political party to affiliate with. When a brilliant philosopher like Rawls gets down to the policy level and talks about abortion and campaign financing and the like, you recognize a perfectly conventional liberal and you begin to wonder whether his philosophy isn't just elaborate window dressing for standard left liberalism.
While I don't agree with all of this, I certainly share his view about what Rawls seems like when "Rawls gets down to the policy level."

Let Rumsfeld Be
By Mike Rappaport

Victor Davis Hanson makes a powerful case for our Secretary of Defense. It is not that Rumsfeld didn't make mistakes, but that everyone makes mistakes and he has done a very good job overall. This is the best defense of Rumself I have seen (there have not been that many). It is very plausible, but not certain that Hanson's view is right and Kristol's is wrong.

What is clear, however, is that firing him while he is under fire would be a mistake. It would embolden the enemies of victory in Iraq inside and outside of the United States. If Bush had been considering firing Rumself, the time would have been when all of the other cabinet officials were resigning. So even if you believe Rumsfeld has performed poorly, it is not clear that you should want him dismissed now.

Wade Sanders Redux
By Maimon Schwarzschild

Bruce Kesler, a San Diego businessman who was a Marine in Vietnam, writes:
I seem to have used up my letter-to-the-editor allotment from the San Diego Union Tribune, especially after the Union Trib recently published my op-ed on December 19, 2004 ("The Revolt of the Vietnam Veterans").

So I can't reply to Wade Sanders' op-ed in today's San Diego Union Tribune. Perhaps a RightCoast reader will take up the slack and write a letter-to-the-editor in my stead. (Email:
Here is Kesler's letter:
Wade Sanders writes lambasting Secretary of Defense Rumsfeld for almost every sin Sanders can imagine, calling for Rumsfeld to resign or be fired. Sanders also charges that President Bush "more than any other president in history [uses] massed troops in uniform as a background for his speeches", and admonishes the President: "If you want to use our men in uniform as your personal props, then please honor moral and ethical standards that go with the job."

Missing from Wade Sanders' diatribe are these uncomfortable facts:

-- Sanders was an Assistant Secretary of the Navy for Reserves under Bill Clinton. The Reserves have had to be used extensively to fill the gaps in the regular forces in Iraq, precisely because Clinton and his assistants reduced U.S. active forces to under 1.2 million, instead of the planned post-Cold War 1.6 million;

-- Sanders served with the Swift Boats in Vietnam, but did not serve in John Kerry's boat, nor on any missions with John Kerry. Yet Sanders, a "campaign surrogate" for Kerry, travelled the country during the campaign, denouncing as liars and worse the Swift Boat veterans who criticized Kerry's self-exaggerated war record. Sanders first claimed that only those who actually served on Kerry's boat would be credible, but then dismissed the sailor longest on Kerry's boat when that sailor opposed Kerry;

-- Sanders, speaking for Kerry in San Francisco, likened the Swiftees to lying propagandists like Goebbels, a description perhaps more suited to Sanders himself;

-- Sanders, either a failed student or an abuser of history, apparently never saw photos of Roosevelt or Truman or Eisenhower or Johnson or Nixon surrounded by uniformed troops during wartime;

-- Sanders somehow forgets that Kerry surrounded himself with all the veterans he could find, including Sanders himself, as "background for his speeches", hoping the country would ignore the Swiftees and other veterans opposed to Kerry.

Yours sincerely,

Bruce Kesler
Encinitas, California
I had a brief encounter with Wade Sanders myself last May. I had been invited to appear on a local PBS television program to talk about the Abu Ghreib affair. When I arrived at the studio, it turned out that Sanders, whom I had never heard of, would be on the show as well. Sanders, now a San Diego lawyer, was indeed a Vietnam veteran and former Navy Undersecretary in the Clinton administration. He was actively campaigning for Kerry, to whom he was evidently personally close. I blogged my reaction at the time:
This RightCoaster made a television appearance yesterday. (A star is not born, or in this case made, either.) It was a fairly low-key segment on the local public TV channel about Iraq and the prisoner-abuse affair. I tried to make the points that Bush and Rumsfeld have a war to fight, and that the abuse affair is being exploited by opponents of the war and by people for whom American defeat in the war would be a price well worth paying for humiliating and defeating the President.

Whenever I "do television", which is not often, I have a strong experience of what the French call "esprit d'escalier": spirit of the staircase, meaning you think of brilliant things to say, but only after it's all over and you are on the staircase on your way out.

When I arrived at the studio, it turned out that I had an opponent on the program: a local lawyer who had been a Navy Undersecretary under Clinton. It emerged that this man had been in the Navy in Vietnam with John Kerry, and is now campaigning almost full time as a "surrogate" for Kerry around the country.

The odd thing about the fellow, it seemed to me, was his ingrained leftism, coexisting with a perfectly conventional (trial-lawyer) personal style. It wasn't just what he said on the air, which veered into conspiracy theory territory about Bush knowing and approving in advance of ("pervasive") torture and war crimes. Off the air, he was even more revealing. As we chatted with the program host, he reverted repeatedly to the idea that the Iraq war is "racist". (An odd idea, surely?) His eyes lit up almost worshipfully though, when he reported meeting Daniel Ellsberg at some Kerry campaign stop. It was all very much in the spirit of the 60s and 70s anti-war left.

Can these people win a national election? Say what you like about Bill Clinton... it is unlikely that he thought of Daniel Ellsberg as his personal hero. This is a different sort of Democratic candidacy. Will it come through to voters what Kerry's political reflexes are, and for that matter what sort of reflexes his "surrogates" have? I hope so.
Well, it came through. But perhaps I would have done better on the program if I had been briefed in advance by Bruce Kesler.

December 27, 2004
Chicago Girl Makes Good
By Gail Heriot

When I was a girl, I loved the fact that Golda Meir had been a Milwaukee school teacher. And I still smile every time I hear about or see a picture of Jordan's Queen Noor (nee Lisa Halaby), whom I prefer to call Queen Noor of New Jersey. I like to see American women turn up in improbable places.

Of course, the election of Viktor Yushchenko in Ukraine makes me very happy. There are many reasons for this, most of which are obvious, but one of them is his wife, Kateryna Chumachenko Yushchenko, who is from suburban Chicago and (like yours truly) a graduate of that august institution of higher learning on the midway, U of C. Go Maroons!

McConnell as Chief Justice
By Mike Rappaport

Randy Barnett reports that William Kristol predicted that Michael McConnell will be nominated to succeed William Rehnquist as Chief Justice of the United States (and he also predicted no filibuster).

Remember, you heard it here (and here) first.

A Fargo Forum
By Maimon Schwarzschild

Scott Johnson, one of the wonderful Powerline bloggers, was born in Fargo, North Dakota. His family belonged to Temple Beth-El, where my father was the rabbi for several years in the 1950s: as Scott says, he and I were at nursery school together there, on the Temple premises in fact.

(After law school, Scott clerked for Eighth Circuit U.S. Court of Appeals Judge Myron Bright, another member of Temple Beth El, Fargo.)

How did Jews come to be in Fargo, North Dakota -- not exactly an American (or Ottoman) metropolis? In the late nineteenth and early twentieth centuries, most Jewish immigrants to the New World landed in New York, or other US ports. But many also embarked on British ships whose destination was Montreal. A Jewish "lower east side" developed in Montreal. (Saul Bellow was born there, and describes the neighbourhood vividly, and grimly, in his novel Herzog.) But it was Canadian policy to encourage Jewish immigrants to settle in midwestern Canada rather than in the eastern cities. So a large Jewish community developed in Winnipeg, Manitoba. By the turn of the twentieth century, Winnipeg was known as "Red Winnipeg" in Canadian politics, largely because of the Yiddish-speaking socialist movement there. It's no accident that the forerunner of today's left-wing third party in Canada, the New Democratic Party, was founded in Winnipeg.

Manitoba -- and Canada -- were poorer than the US in those years, and many Jewish settlers crossed the border into North Dakota. Hence the surprisingly large Jewish community, at mid-century, in Fargo.

One of the founders of the Fargo synagogue was Max Goldberg: he drifted into North Dakota, probably illegally, from Canada in the early years of the twentieth century, and made a fortune as a grain dealer. Here is an oral history interview with him: very evocative of a now-vanished, Depression-era world of business people in the upper midwest.

And here is an interview about Temple Beth El, with Goldberg's grandson Robert Feder.

My parents had a happy few years in Fargo, an unlikely place (you might otherwise think) for a Londoner like my mother and an emigrant from Berlin like my father. Perhaps they anticipated that Fargo would someday produce great bloggers: not just Powerline, but also another Fargo native: James Lileks.

Cosmopolitan Echoes in Turkey
By Maimon Schwarzschild

Good column by H.D.S. Greenway on life in Istanbul, Turkey's metropolis, as Turkey now seeks admission to the European Union. As Greenway says, Istanbul used to be a cosmopolitan city, with large and vibrant Greek, Armenian, Jewish, and other minority communities. And Constantinople, as the city was known for 1500 years, was probably the largest, and certainly the most cosmopolitan, city in the world through most of the middle ages. (The name "Istanbul" is just a Turkish version of "Constantinople" of course: the words look completely different, but say them quickly and you will hear the resemblance.)

But the twentieth century brought Istanbul's cosmopolitanism to an abrupt end. Armenians were the victims of massacre in Turkey. Greeks were expelled en masse after the First World War: the same fate befell Turks and Moslems in Greece, in what was euphemistically called a "population transfer". The Istanbul Jewish community, once one of the world's great Jewish communities, is now reduced to a few dozen families. (Turkish Jews to this day speak Ladino, the Spanish they brought with them to the Ottoman lands after the expulsion from Spain under Ferdinand and Isabella in 1492.)

As Greenway says --
One has to look to London and Paris now for the same diversity that Istanbul once stood for. The end of empire for Europe meant the influx of those over whom the Europeans once ruled. But in Istanbul most of the vibrant minorities went elsewhere. That a few remain at all, however, says something for this city and this country in a region where tolerance is in such short supply.
And of course, even more than in London and Paris -- and far more smoothly, on the whole -- there is the growing cosmopolitanism of the United States.

December 26, 2004
Democrats and abortion
By Tom Smith

Some democrats observed getting clue.

December 25, 2004
The Superiority of the English Common Law?
By Mike Rappaport

Nicholas Thompson in Legal Affairs writes:

According to research published by a group of scholars beginning in 1998, countries that come from a French civil law tradition struggle to create effective financial markets, while countries with a British common law tradition succeed far more frequently. While the scholars conducting the research are economists rather than lawyers, their theory has jolted the legal academy, leading to the creation of a new academic specialty called "law and finance" and turning the authors of the theory into the most cited economists in the world over the past decade.
What explains this distinction?

In a 2003 paper titled "Judicial Checks and Balances," the [scholars] demonstrated mathematically that common law countries give judges more independence, which in turn correlates with the sound economic policies they had examined in "Law and Finance." The paper compared factors like whether judges in a country's highest court system have life tenure against measures of what LLSV called economic freedom, such as whether people have secure property rights. The numbers showed that judicial independence closely correlates with common law legal origins. It also correlates strongly with economic freedom and investor protection.
While these conclusions should be of interest to legal scholars, many have criticized the work. The authors, however, are not terribly impressed with legal scholars, though:

The [authors] acknowlege [certain] weakness in their research. They have little patience, however, for most of their critics in the legal academy, who they believe look through microscopes, not telescopes. According to Lopez-de-Silanes, you can't come up with a theory about the way the world works if you're fretting over whether Canada has been miscategorized as a common law country because Quebec uses civil law. Lawyers worry about such issues, Lopez-de-Silanes said, so they don't have to come up with grand theories. "Lawyers don't do empirical work," said Shleifer. "They just argue with each other."
Sad to say, but it is hard to argue with that.

It all comes down to the right to wear funny clothes
By Tom Smith

Great line. Read the whole thing.

December 24, 2004
James Q. Wilson on Christmas and Christianity
By Mike Rappaport

An excellent piece in the Wall Street Journal on the attempt in recent years to secularize Christmas. James Q. Wilson writes that in Europe, churches had sought and attained monopoly power from the state, which they had used to oppress the people and which had made religion unpopular.

There has been in Europe very little that resembles the First Amendment to the American Constitution. Here, where the free exercise of religion is guaranteed and there is a ban on laws "respecting an establishment of religion," there has never been a national church. Without one, there is no enemy to defeat, and so there has never been a political reason to either rebel or become secular.

In this empty space of religious freedom aspiring ministers compete for adherents. The more skilled the ministers and the more demanding the benefit of becoming an adherent, the more people join them. As a result, mainline Protestant churches, lacking both evangelical zeal and a deeply meaningful religion, have lost the struggle for members to fundamentalist churches that recruit members and expect a lot of them.

This fact worries many people in the Blue States just as it pleases many in the Red ones. Those who are alarmed by the extent of religious belief in this country have roused themselves to make the so-called wall of separation between church and state both higher and firmer. In insisting that we describe our late December holiday as having nothing to do with the birth of Jesus, in fighting to keep every nativity scene away from any government property, by arguing that our freedoms will be compromised by any reference to Christianity, they have succeeded only in intensifying religious beliefs among the great majority of our people who are angered by these assaults.
Wilson seems to be suggesting that the movement against Christmas in the public square ironically shares something with the excesses of intolerant religion. In both cases, these efforts are intolerant and lead to a backlash.

Double Standards
By Mike Rappaport

Sheldon Richman writes:

The New York Times had a story the other day about how Wall Street firms have been secretive about their support for Social Security reform. The Times' point is that these firms stand to gain from the kind of changes President Bush and others are talking about, since money would go into private investment accounts. Therefore, the reform is suspect precisely because Wall Street investment houses would benefit.

That prompted this thought: When did the Times last point out that politicians who oppose changes in Social Security are also acting for their own benefit? Social Security is a potent source of political power. For example, it's great for buying votes and it gives members of Congress lots of money to play with (or it has until now). It's also a source of clout for AARP, which opposes any change as well. But don't wait for any newspaper to point that out.
Richman's point is quite correct. Sadly, it is so rarely pointed out these days that it is easy to forget, even for people who are skeptical about big government like yours truly

One of the great things about Ronald Reagan's talk about government being the problem is that it focused attention on government behavior and its incentives. It made it easier for people to recognize the conflicts of interests that special interest groups and government officials have.

Guns for Christmas
By Tom Smith

It's still America, if you look hard enough. (via instapundit.)
I have never bought any toy guns for my kids. I didn't have too. Ever alert to these things, my lovely wife Jeanne came home one day with a bag full of black, plastic guns. Not just any guns. MP-5s, Uzis, M-16 carbines. My goodness. I told the boys they could not take them away from the house. They looked so real, I was afraid they might get shot or something. Maybe 15 years ago, before years with boys, Jeanne had allowed as how she would never buy toy guns for her children. "You've come a long way," I said. "I know," she said.

December 22, 2004
The United States Civil Rights Commission Rises Again
By Gail Heriot

Maybe I've been too much of a pessimist lately. Since the disastrous Supreme Court decisions in the University of Michigan cases, I had convinced myself that no good news would ever come out of Washington on civil rights issues. I was wrong.

An important event happened earlier this month: The long reign of Mary Frances Berry as Chairman of the United States Civil Rights Commission finally came to an end. After twenty four years, the Commission will no longer be the personal fiefdom of one very, very strange and combative woman. And with any luck it will again become what it should have been all along--a serious, independent, bipartisan commission investigating compliance with federal civil rights law.

Berry was originally appointed to the Commission by Jimmy Carter. She rewarded him by taking a trip to China and, upon her return, singing the praises of communist education. In particular, she admired the ability of the Chinese communists to "develop what they call socialist consciousness and culture." Carter was suitably embarrassed by her statements, but, like his successors, found he could do nothing.

It's been downhill from there. As chairman, Berry's sharp, but way-off-target attacks on sitting presidents became the Commission's major export (including one on Mr. Clinton, who earned her wrath by withdrawing the nomination of Lani Guinier once Guinier's controversial positions on issues came to light). Some of the "official" reports of the Commission were issued without any effort to get the input or approval of the Republican members. Berry made it clear that she regarded them as the enemy.

Fortunately, even the press eventually caught on to Berry. Salon magazine called her a "vitriolic brawler." The L.A. Times put it more kindly by calling her "combative," but its coverage of her activities was largely unsympahetic. Perhaps that explains why the Commission does not get the same attention and respect it used to. After a while, vitriolic brawlers start to get ignored.

The GAO has called the Commission "an agency in disarray." Despite rules requiring periodic independent audits, none had been conducted during her chairmanship. Berry wouldn't allow it. Nor would she allow anyone to sit on the Commission that she did not approve. When Bush appointee Peter Kirsanow, a conservative black lawyer from Cleveland, tried to take his seat, she prevented him from doing so, and relented only when a federal court ordered her to do so.

Bush's replacement for Berry is Gerald Reynolds, a former Department of Education official. I've known Jerry since his days at the Center for New Black Leadership and couldn't be more pleased with the appointment. Ditto for the Bush's choice of the inimitable Abigail Thernstrom as the replacement for Vice Chairman Cruz Reynoso. Abby (along with her husband Harvard history professor Stephan Thernstrom) is the author of two important recent books on civil rights issues: America in Black and White and No Excuses, both a which are must-reads for anyone interested in the issues the Commission addresses.

It is a measure of just how strange things had gotten at the Commission that much of the press coverage of the last few weeks centered on whether Berry would go quietly at the end of her term. (Weirdly, Berry disputes that her term is actually over and had earlier threatened to stay). Would she turn over her keys? The word is that she did. Would the locks have to be changed anyway? The word is that indeed the locks would have to be changed. In the end, the whole thing had become rather sad.

Two Earner Households
By Mike Rappaport

Do women work because families need the money or because they prefer to do so? Consider this quote excerpted by Tyler Cowan from the new book, Cowboy Capitalism:

The big increase of women in the workforce can be traced back to an increasing number of wives of well-to-do men pushing into the labor market. These women typically earn high hourly wages.

Meanwhile, among women whose husbands earned hourly wages in the bottom fifth of the distribution, the growth in labor market participation slowed down -- contrary to the overall trend.

In 1969 the annual incomes of working wives showed no correlation with the wages of their husbands. Wives of high-income earners earned above average wages, but they worked fewer hours than average. In the late 1980s, however, wives of high-income earners worked almost the same amount as wives of husbands with lower incomes.
And the increase in the hours worked of women who have husbands with high wages also leads to greater income inequality among familities.

December 21, 2004
Alexander Hamilton: The Man who Made Modern America-n Lefties Go Bananas
By Gail Heriot

On Saturday, I posted on item on the New York Historical Society’s Alexander Hamilton: The Man who Made Modern America exhibit. I commented on the New York Times’ odd little article asserting (incorrectly as it turns out) that the show is not attracting crowds. It seems that I had only touched the tip of the critical iceberg.

Professional historians on H-Net: Humanities and Social Sciences Online have been discussing the show for more than a month, sometimes in terms that seem almost paranoid. Among the criticisms:

* The show “inexorably leads to the re-election of George Bush.”

* The title of the show suggests an “archaically hagiographic approach” to history, “which is coming back into style in Bush’s America.”

* “[T]he right-wing agenda comes right out in your face, starting with that huge $10 bill” depicted on the banner announcing the show.

* In the opening video, Thomas Jefferson’s voice was depicted as “haughty and aristocratic;” John Adam’s voice was depicted and “whiny” and “kvetchy.”

I don’t know what to make of the first of these criticisms–that the logic of the show compels the conclusion that George Bush ought to be re-elected. All I can say is that the elderly ladies in the coffee shop after the show seemed to enjoy the exhibit, but did not seem to have been put through a life-transforming experience. “Manhattan Democrat” was still written all over their faces. But maybe they (and I) are just dense and unable to recognize when they have been brainwashed.

The second criticism is at least a little more understandable given the show’s title. But that title was intended to be taken as hyperbole. Obviously, Alexander Hamilton did not literally make modern America. But it’s fair to say that he foresaw it and worked towards it in a way that most of his contemporaries did not. How much of an effect upon did he have individually? We’ll never know, since history does not disclose its alternatives. But if it is “archaically hagiographic” to believe that individuals can and do have an effect on history, then I guess I’m archaically hagiographic. And if the author of these criticisms is convinced that individuals do not have an effect on history, why is he so obsessed with George Bush?

I laughed at the third criticism. Those darn right wingers are so obsessed with money that they put a ten dollar bill on banner announcing the show. But for goodness sake, Hamilton was the Secretary of the Treasury, and responsible for standardizing American money. What portrait of Hamilton would be more fitting?

Finally, we have the voice criticisms. Thomas Jefferson’s voice was depicted as having a Southern accent. I didn’t notice that it was “haughty” or “aristocratic,” and I rather suspect that the author regards all Virginia accents that way. I don’t recall the sound of the Adams voice, but let’s face it: I’m a big Adams fan (there I go being archaically hagiographic again), but he really was “whiny” and “kvetchy.” Depicting Adams as he was makes him more endearing, not less, so I hope this criticism is accurate.

Again, the real reason for these criticisms has nothing to do with the Hamilton exhibit and everything to do with the identities of the New York Historical Society’s major benefactors–Richard Gilder and Lewis Lehrman, described in one of the posts as “two rich right wingers.” The title to the post that opens the discussion is, “Are Gilder and Lehrman Tilting American History to the Right? A Case in Point.” You can almost hear the sinister music playing in the background. Oddly, one of the chief complaints offered against them is their inclusion of historians who do not share their conservative views in their many historical projects, including the Gilder Lehrman Institute of American History. Says the author, “Gilder and Lehrman are buying legitimacy by buying historians, giving money to Yale and to the Organization of American Historians, constructing a board with some stellar left-liberal types on it (what is with this, guys?).”

I guess it’s hard to please some people.

Ho Ho Ho
By Tom Smith

I'm doing my best to get into the Christmas spirit, but it's not that easy out here in Jesusland. I knew I lived in Jesusland, but now it is official, as the pharmacist who lives at the entry to our development has erected a display of colored lights with multi-colored, 5 feet tall letters spelling, you guessed it, JESUS. It adds a real toniness to the neighborhood that I appreciate. After that, at the next house, you encounter a seven feet tall inflatable Santa, facing off with an equally large Frosty. I think the look kinda like professional wrestlers, but that's just me. The Santa Ana winds a week ago knocked them down, but unfortunately did not carry them away. I should look on the bright side. Walmart does not sell a life-sized, internally illuminated, self-inflating scene of Santa sitting in the outhouse, red pants around his ankles, going over his list of naughty and nice, while Mrs. Claus pounds franticly on the door. How do I know Walmart doesn't have one? Because if they did, someone around here would have it up in their yard. Let's just say, a quaint little village in the Austrian Alps at Yuletide, it ain't. But we have fewer Nazis, so perhaps it evens out.

I finally bought our Christmas tree last Saturday. I went to Target, that source of all things good and valuable, and there were a bunch of 8 foot firs looking pretty decent for the price. It was one of those fateful moments of decision. I could probably find something better if I was willing to brave the crowds of other driven tree-seekers at Home Depot. With my martial arts training, I was probably up to it. Or I could settle for the tree in front of me. I settled, and boy, was it the right decision. I set up the tree, secured it in place with some lines in case of earthquake, put some lights on it, and I must say, it looks very nice. When the kids got home we put some Christmas music on the stereo, and even 1 year old Mark got into the act of hanging ornaments (yes, he's a genius).

I left the lights on outside all night, too lazy to turn them off, and some miscreant threw eggs at our house. Jeanne found it creepy that someone bothered to come up our long driveway to throw eggs at our house. I on the other hand realize it is a normal stage, the pupal stage, of redneck development, before they move on to pickups, baseball bats and mailboxes. I was somewhat disturbed that our two labs slept through the whole thing. Now I'm thinking, big German Shepherd. Our labs sound fierce, but the only danger they pose is licking someone to death.

I assume my secret is safe with you, so I will let on that I'm getting my lovely wife Jeanne some nice presents. Two nice cop-r-chef All Clad pots to add to her collection. She is a serious cook, which makes finding presents easier, as kitchens are a gear-lover's dream. I also couldn't resist a set of the newfangled laser-etched, micro-plane graters, said to go through a chunk of Parmasean like a hot knife through butter. And, I'm especially proud of the set of Cold Steel kitchen knives I found on the internet. As some of you will know, Cold Steel specializes in weaponry, and based on their dedication to quality and innovation in things like combat hatchets, must be run by a bunch of very strange people. They make kitchen knives as a sideline; their real passion are things like combat-quality katanas. Thus you can get very high quality kitchen knives from them at a very low price, compared to the prestige German or Japanese brands, where you are buying partly the name and fighting the weak dollar. True, with their non-slip rubber handles, the Cold Steel knives are kinda ugly compared to the German knives, but there's something to be said for pure, American functionality, not to mention paying a quarter of the price.

At Mass last Sunday, the ever cheerful Mark (age 1, as I said) let out a window-rattling belch that cracked up about 25 percent of the worshippers. He makes me very proud. Farmers decided to pay $1600 of the $4500 in damages caused by a recent water heater flood, and that came as a pleasant surprize, since I was sure they would just deny the claim and cancel my policy. In putting up the tree, I moved a chair in the living room and discovered 11 year old Patrick's horde. As I may have mentioned, he is the offspring to whom I owe $400 and who is charging me a weekly rate of interest. He had about $600, including many faux-gold Sacajawewa dollars, packed in a little wooden chest, pirate style, hidden under the chair. Now I have to go before Biscuit and Denali scare the UPS guy to death.

The Case Against Affirmative Action
By Mike Rappaport

Rick Sanders writes:

Traditionally, critics of affirmative action have focused either on its unfairness to those groups that don't receive preferences (usually whites and Asians) or on the inherent conflict between racial preferences and the legal ideal of colorblindness.

Over the last few years, however, a new and potentially even more damaging line of inquiry has emerged: the idea that racial preferences may materially harm the very people they are intended to benefit.

Most legal educators have traditionally assumed that [affirmative action] helps blacks by giving them a more elite degree, better connections and maybe even a better education.

But in fact, my data show, about half of black law students end up in the bottom tenth of their classes. Very low grades lead to much higher attrition (blacks are 2 1/2 times more likely to drop out of law school than whites) and to more trouble on the bar exam (blacks are six times as likely as whites taking the bar to never pass).

My research suggests that in a race-blind system, the proportion of black law students graduating and passing the bar on their first attempt would rise from 45% to at least 65%, and the number of new, certified black lawyers each year would rise about 7%.
For criticism of the op ed, see here.

Global Warming
By Mike Rappaport

A great article in the local newspaper on global warming written by a climate scientist. Here are some excerpts:

Virtually everyone agrees that more carbon dioxide causes a warming tendency – the real question is, how will the climate system respond?

For instance, the warming due to just carbon dioxide increases is predicted by climate models to be approximately doubled by increasing levels of water vapor, the atmosphere's primary greenhouse gas. But what determines the level of water vapor in the atmosphere? It is a balance between (1) evaporation from the surface, and (2) removal by precipitation systems. Since science doesn't yet understand how precipitation systems will respond to a warming tendency (for instance, warmer tropical systems are known qualitatively to be more efficient at removing water vapor than cooler high-latitude systems), it has virtually ignored research related to the efficiency of precipitation systems, and has instead emphasized the "increased evaporation" part of the equation. Quantitative knowledge of this "positive water vapor feedback" effect thus requires knowledge that we currently do not have. The effects of clouds are even more uncertain. What we do know, though, is that all of the weather that makes up climate is working with one goal: to get rid of excess heat.

The "new ice age" scare of the 1970s should teach us something about statements coming from scientific bodies: that even in scientific reports, scientists sometimes get a little carried away with their theories. This explains in part why scientists' pronouncements are not blindly accepted by the public anymore. Additionally, the most authoritative reports, produced by the IPCC, have been notorious for downplaying or outright ignoring uncertainties in their summaries for policy-makers (the only part a congressional staffer is likely to read). Combined with the biased influence of the principals leading the IPCC report process, and the United Nations' own agenda for future political influence ("Agenda 21"), it is easy to see how the scientific message can get distorted and misused.

Furthermore, also unstated by Oreskes is the widespread practice by U.S. funding agencies of only funding research that implicitly accepts the putative global warming paradigm. Research funds from Congress depend on threats to the populace, and as long as there are possible climate mechanisms that could make global warming worse, funding is enhanced. I am not suggesting widespread deceit or questionable motives – only that public funds are usually made available to study problems, not non-problems.
So, despite the claim that there is a consensus of scientists who believe there is global warming caused by humans, I continue to be skeptical because the consensus is overstated, it ignores areas of uncertainty, and there are incentives for the scientists to support the so called consensus.

December 20, 2004
Leave Us Alone
By Mike Rappaport

Stuart Buck writes: "People tend to be laissez faire when it comes to their own conduct, even those who usually support extensive regulation as to businesses run by other people." And he makes a strong case for this conclusion.

We Are The World: The Results
By Mike Rappaport

Where did all the money go from Live Aid? According to this story, the results were not exactly a success. Sad, but not unexpected. (Hat tip: Instapundit)

December 19, 2004
Get 'em a Goat
By Gail Heriot

If you are out of gift ideas for your Uncle Ray and Aunt Babs, I suggest you go to World Vision's Online Gift Catalog and get them a goat. For only $75, you can purchase a goat in their name for a struggling family in Africa. Your aunt and uncle will receive a card in the mail telling them of the gift.

Over the years, I have purchased quite a few goats in the names of my friends and relatives, and in turn quite a few of them have purchased goats in my name. I figure we must have a thundering herd by now.

Free Market Economist Watch
By Mike Rappaport

Two pieces involving the stars of free market economics. One piece by Milton Friedman, another about Friedrich Hayek. (Hat tip: Presto Pundit)

The Hayek piece had one bit of information I had not known: "Toward the end of his life, postmodernist philosopher Michel Foucault gave lectures on Hayek's work."

This Just In
By Maimon Schwarzschild

The New York Times finally took note yesterday of the UN rape scandal in Congo. Sadly, the Times was scooped by TheRightCoast, and by many, many others in the New Media. What chance the Times will now give this even a fraction of the coverage that was devoted to Abu Ghreib?

As Victor Davis Hanson says:
All the standing ovations for Kofi Annan cannot hide the truth that the Oil-for-Food scandal exceeds Enron. Indeed, Ken Lay’s malfeasance scarcely involved the deaths of thousands, while cronies siphoned off food and supplies from a starving populace. The U.S. military does not tolerate mass rape and plunder among its troops, as is true of the U.N. peacekeepers throughout Africa. There can be no serious U.N. moral sense as long as illiberal regimes — a Syria, Iran, or Cuba — vote in the General Assembly (so long as such regimes dominate the General Assembly, I would have said); and the Security Council stymies solutions out of concern for an autocratic China that swallowed Tibet. Millions were slaughtered in Cambodia, Rwanda, and Darfur while New York bureaucrats either condemned Israel or damned anyone who censured their own inaction and corruption.
Hanson's exceptionally powerful piece is about the general moral deflation of the political left: the UN is just one in a long and sad bill of particulars. Even more than usually, read the whole thing.

December 18, 2004
The Man Who Made Modern America
by Gail Heriot

On Sunday, my friend John Fund and I went to see the Alexander Hamilton show at the New York Historical Society. It was a thoroughly enjoyable Sunday outing. (Yes, I know what you’re thinking. Just yesterday I complained that I had been working so hard that I had been unable to blog for weeks. How could I have had time to spend an afternoon at a museum? It’s this way: Last weekend I had to be on the East Coast for a National Association of Scholars Board of Directors meeting; I figured that, given my interest in Hamilton, it would be negligent to come home without seeing the show.)

Its title is "Alexander Hamilton: The Man Who Made Modern America," and it is bringing in record crowds to the New York Historical Society–until recently a beleaguered little museum that had come dangerously close to bankruptcy. In this age of blockbuster museum shows, I would call the Hamilton show refreshingly human scaled. (Indeed, the statues of Burr and Hamilton in dueling mode remind one that in 1804 "human-scaled" meant something different from what it means today. At a hair shy of 5' 9", I was significantly taller in my flats than either of them.) But though smallish, the show is chock full of interesting information about Hamilton and his times. I had a great time.

Weirdly, the folks at the New York Times must not have had such a great time. On November 22, 2004, they ran an article entitled, "Big Hamilton Show Fails to Draw Crowds." When I saw headline, I wondered why in the world a newspaper would consider the failure of a small museum to draw a large crowd to be newsworthy. That kind of thing must be happening all over the country, seven days a week. But then I scanned the article and understood: One of the New York Historical Society’s major benefactors is Richard Gilder, chairman of the conservative Club for Growth and no doubt an arch-villain in the New York Times’ rather extensive pantheon of villains. Without Gilder, the New York Historical Society’s rescue might have been impossible. With him, it will never get an even break from the New York Times–not in this lifetime anyway. The article is full of dark hints that something sinister is happening at the Society. (It took the Society’s president, Dr. Louise Mirrer, to point out in a letter to the editor that the crowds attending the show were in fact record breaking.)

By the way, it’s a stretch to argue that Hamilton must be classified as a "red" hero rather than a "blue" hero. Sure, Hamilton was a champion of commerce and industry and an advocate of a strong military (as well as a passionate foe of slavery), but he was also an ardent advocate of a strong national government–not a position taken by many conservatives these days. It’s too bad the New York Times is so busy working up a fever about the vast rightwing conspiracy to see that.

Life in the Suburbs
By Tom Smith

Last summer I wrote this essay, which you can download here. It is intended to be funny, yet full of profound meaning, or at least funny. My vague intention is eventually to write several such essays about various topics and put them together in a book.

More bad news
By Tom Smith

While this may seem like good news, it is actually just one more attempt to undermine a woman's right to choose, just like those proposed laws that would require doctors to anesthetize fetuses before aborting them. We know this not from science, but from scripture. To find these scriptures, go to your local used book shop, and look in the feminism section for books published before 1979. Amen.

French culture on the marchay
By Tom Smith

This is fun. It just goes to show you, moral superiority is never enough.

Your ACLU dollar at work
By Tom Smith

Is nothing left that one can believe in? Now even the ACLU wants to be big brother. I have been cynical about the ACLU for a long time. I call upon Right Coaster Maimon to tell us about their sordid history, since he is much better at that sort of thing. My little experience comes from agreeing, stupidly, to help out on a pro bono basis on a project that involved reviewing the 1990 census questions for privacy concerns, and then talking about it to the board of the D.C. ACLU. The 1990 census had a question on it such that if you were gay and living with a partner, you were supposed to tell your friendly neighborhood federal government about that. But consider, maybe you do not want to identify yourself as gay on the census. Perhaps your considered view is, it's none of the government's f'ing business how you like it. If you are gay and living with your boyfriend in what amounts to a domestic partnership, you could always decline to say that on the census, but then, you would actually be committing a crime. Seemed like a bad idea to me. Not withstanding my cogent and humorous presentation of this concern to the ACLU, which I think any libertarian would have understood and agreed with, the ACLU mavens, who included some pretty hot shot lawyers in DC, looked at me like I was speaking Martian. I think if you had posed to them the hard question "Can you give me an example of liberty?" you would have gotten answers like "um, Social Security?" and "higher taxes!" They were that clueless. There may be some libertarians in the ACLU but to call it a libertarian organization is like saying the fire department is in charge of starting fires. Maybe there were a couple of decades when it was not so, but it has long since turned into the criminal defense bar's lobby with a bunch of other leftish causes thrown in for good measure.

December 17, 2004
She's Baaacckk!!
By Gail Heriot

I apologize for being such a negligent correspondent for the last few months. It proves that contrary to popular belief, the legal academy is not a great place to come if you're looking for cushy job. I've been running myself ragged with too much work.

But in case you missed it, today's news included a story about a Colorado college professor who has been run ragged in perhaps a more troubling way. He has been dismissed from his teaching responsibilities for writing an article about his experiences teaching American Indian students.

Judging from the excerpts in the newspaper coverage of the dismissal, the article was rather pc--perhaps to the point of being annoyingly so. Dr. Andrew Gulliford wrote that "teaching native students has brought me some of the most meaningful and satisfying professional experience in a 25-year teaching career. I am so grateful for the opportunity to live and learn here, but for an Anglo or nonnative, teaching native students, especially about Indian issues, can be both difficult and rewarding. There are frequently cross-cultural complications and conundrums."

The article itself turned out to be one of those "cross-cultural complications and conundrums." Some students were apparently enraged when Gulliford called his Indian students "quiet, well-groomed" and "impeccably polite." They read it as implying that he expected them to be otherwise.

The newspaper account also reports that "they were ... unhappy with a quote from an unidentified student who says, 'My parents didn't teach me anything because they were frequently drunk with their car in a ditch.'"

I can understand students being displeased with a teacher who refers to them as "well-groomed." It's condescending. And so is some of the rest of the material quoted in the article--including the lines about the "most meaningful and satisfying professional experience" in his long career. I've never known anyone to use language like that to talk about an experience he truly found meaningful and satisfying. It reads like so much pc blather.

But trying to get the guy fired from teaching for it seems extreme. Evidently, no apology from Gulliford (which he freely gave) would do.

The college administration concluded the article violated student privacy under federal law because it used statements from students without their permission--presumably the drunken parents line. I'm no expert on student privacy law, but if it's true that federal law forbids a college professor from anonymously quoting a student without his permission in a scholarly article on teaching, it's a pretty silly policy (and surely does not require that violators be dismissed). After all, the quotation is anonymous. If it's the case that a significant number of American Indian students face such hurdles in getting a good education, isn't it appropriate to bring the facts to the public's attention?

The Second Amendment
By Mike Rappaport

Eugene Volokh reports that the Office of Legal Counsel of the Justice Department (of which I was a member way back when) has issued an opinion adopting the individual right view of the Second Amendment. Thus, the Office concludes that the Amendment is about protecting an individual right to keep and bear arms rather than a right of the state militia.

Here is the concluding paragraph of the opinion:

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.
The document is dated August 24, 2004, so it is another reason for liberals to have disliked the Ashcroft Justice Department.

The right tool for the job
By Tom Smith

A parable in pictures.

Sense and Sensibility at the Times
By Maimon Schwarzschild

Our colleague Frank Partnoy -- who is superbly knowledgeable about the financial markets -- had an op-ed in the New York Times on Wednesday, on possible regulation of hedge funds. What he says seems completely sensible to me: regulate, but don't be overzealous.

(He explains what a hedge fund is, in a way that would be completely clear to anyone with basic, adult acquaintance with the market. That doesn't include me, I'm afraid. Is a hedge fund a sort of speculative mutual fund? What is it that makes it a hedge fund, rather than just a dodgy mutual fund? Is the point that if it is a hedge fund, it is now unregulated, whereas a mutual fund is regulated by the SEC and/or other watchdogs? As you can see, it's a good thing the world doesn't entrust me with any serious money.)

Reading this op-ed -- with great vicarious pride for Frank -- I glanced at the rest of the Times editorial and op-ed pages for the day. (I usually don't even give them a glance any more.) Frank's good sense stood out. There was otherwise: an editorial clamouring for Pinochet to be put on trial. An editorial denouncing "reactionary" oversight of the EPA. A febrile set of letters about a US "Department of Disinformation". Sense and sensibility: in Jane Austen's very unflattering use of "sensibility" to mean bad -- or in this case at least tired and utterly predictable -- thinking.

December 15, 2004
Teacher Cheating
By Mike Rappaport

This is really quite interesting. There is a reason why Steven Levitt is one of the hottest economists these days. Here is an excerpt from the summary supplied by Mahalanobis:

To address [whether teachers cheat to improve their students' test scores], we once again turn to data from the Chicago Public Schools, for which we have the question-by-question answers given by every student in grades 3-7 taking the Iowa Test of Basic Skills (ITBS) over an eight year period. In the first paper,(4) we develop and test an algorithm for detecting cheating. Our approach uses two types of cheating indicators: unexpected test score fluctuations and unusual patterns of answers for students within a classroom. Teacher cheating increases the likelihood that students in a classroom will experience large, unexpected increases in test scores one year, followed by very small test score gains (or even declines) the following year. Teacher cheating, especially if done in an unsophisticated manner, is also likely to leave tell-tale signs in the form of blocks of identical answers, unusual patterns of correlations across student answers within the classroom, or unusual response patterns within a student's exam (for example, a student who answers a number of very difficult questions correctly while missing many simple questions).

Empirically, we [found] evidence of cheating in approximately 4 to 5 percent of the classes in our sample.

[Subsequently, retesting under audited conditions was conducted.] The results of the retesting provided strong support for the effectiveness of the cheating detection algorithm. Classrooms suspected of cheating experienced large declines in test scores (on average about one grade equivalent, although in some cases the fall in mean classroom test scores was over three grade equivalents) when retested under controlled conditions. In contrast, classrooms not suspected of cheating a priori maintained virtually all of their gains on the retest. As a consequence of these audits and subsequent investigations, disciplinary action was brought against a substantial number of teachers, test administrators, and principals.

The Federalist Papers
By Mike Rappaport

Recently, I attended a Liberty Fund Conference on the Federalist Papers (along with Right Coasters Gail and Maimon and Legal Theory Blogger Larry Solum). The conference allowed us to re-read the Papers and then to discuss them with a group of accomplished scholars. What a treat!

After re-reading the Papers, I continue to believe that they are one of the most impressive works of political writing in history and perhaps the greatest work of American political writing. What is especially powerful about the Papers is their method for analyzing political institutions. On the one hand, they are a great and early example of a work that recognizes that political actors will pursue their self interest and need to be constrained. Madison's famous line about using the separation of powers to make "ambition counteract ambition" is an example of this approach.

But the Papers do not, like modern public choice theory, ignore people's other motivations. They acknowledge that people act from various motives, including the desire to act morally. For example, in Federalist 57, Madison discusses the reasons why Representatives will be unlikely to abuse the people's trust, and provides reasons based on "duty, gratitude, interest, and ambition," concluding that these "are the cords by which [Representatives] will be bound to fidelity and sympathy with the great mass of the people."

While the method of analysis in the Federalist is excellent, that does not mean that every prediction or claim in it is correct. In fact, in the same paper, Federalist 57, Madison states one of the traditional ideals of liberal democracy:

I will add as a fifth circumstance in the situation of the House of Represenatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments of which few governments have furnished examples; but without which every government degenerates into tyranny.
Madison continues:

If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of society? I answer: the genuius of the whole system; the nature of just constitutional laws; and, above all, the vigilent and manly spirit which actuates the people of America -- a spirit which nourises freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anyhing but liberty.
While Madison's statement of the ideal is correct -- requiring the government to live by its own laws is essential -- he was wrong that the Congress would not be able to set itself apart. Congress did precisely this for a time, exempting itself from one regulation after another. It was Newt Gingrich and the Contract with America that finally significantly cut back (but if memory serves did not entirely eliminate) the special treatment for Congress. As this example suggests, Newt did much to remind the people of the United States that it is wrong to tolerate infringements on their liberty.

The Joy of Home Remodeling
By Mike Rappaport

Seems right to me. (Hat tip: Instapundit)

December 14, 2004
History Office Law
By Mike Rappaport

Two interesting posts by Larry Solum on originalism. The first is part of his very useful Legal Theory Lexicon. In response, history professor Saul Cornell writes:

Most historians, as I am sure you are aware are deeply skeptical about originalism. The problems is not that it is impossible to reconstruct original meanings, (plural-not singular!) but that most scholarship in the last fifty years points to a complex and deeply contested debate in 1787-1788.

The recent critiques of Kramer, “When Lawyers Do History” and Flaherty’s expose of “History Lite” argues that originalist scholarship starts with a set of assumptions about the past that bears little resemblance to historical reality. Kramer likens the originalist world to a fun house mirror in which the past is distorted almost beyond recognition. Until originalism moves beyond “history lite” it is not likely to be taken seriously by historians as a genuine intellectual contribution, but derided as an ideological stance.
Solum powerfully responds to this critique with several points, including this one:

One final point: history and law involve different enterprises. The method of law is forensic--judges must select between competing interpretations of the constitutional text, because their institutional role requires that they make such choices. Historians are not required to act in this way. They can say things like, "I am not sure yet" or "the evidence is indecisive," or "more research needs to be done." And because historians are not lawyers, I find that many historians are quite unclear about legal methods and theories of constitutional interpretation. In particular, I rarely see a clear distinction made in historical writing between historical evidence about the legal meaning of particular legal texts and historical evidence about the attitudes of various groups about the desirability of those texts. That difference is crucial to the law, but largely irrelevant to history. Neither academic lawyers nor legal historians have a monopoly on intellectual virtue or intellectual vice. (Emphasis added.)
In short, while history professors criticize lawyers for having an impoverished view of history, law professors can criticize history professors for having a distorted view of law. While originalists are aware of the problem of law office history, many historians look blankly when you mention "history office law."

The UN in the Congo
By Maimon Schwarzschild

According to the NY Times piece on Africa which Tom linked to yesterday,
In the Democratic Republic of Congo, 3.8 million people have died as a result of a war that began six years ago, according to an annual study published Thursday by the International Rescue Committee, a charity based in New York. Nearly half of them were children under 5, most of whom fell victim to malnutrition and other preventable diseases.

Children, here as everywhere, are always the most vulnerable. They are the ones who most need what their rulers have not been able to offer - a functioning government that provides teachers, health clinics, a clean water supply to keep them from dying of diarrhea.

[B]ut first there must be a long-term commitment to peacekeeping. In short... end the fighting and fewer children will die of hunger and disease.
United Nations peacekeeping, perhaps?

I have just received a note from a friend whose sister has been working for the UN in Africa:
She despairs of the UN program she worked in, wondering why it has not imploded entirely. MONUC -- the French acronym for the United Nations Mission in Congo -- is a disaster. The "election" the UN pretends to be supervising in Congo will certainly fail. None of the private armies or freelance killers that swarm there have been disarmed. In fact, the Congo has no infrastructure for an election even if the "process" the UN is supposed to be supervising went without a hitch.

Meantime, UN personnel, very much including UN "higher-ups", are systematically harassing, abusing, or just flat-out raping really terrifying numbers of very young women and girls. If you approach the UN hierarchs about this carnival of rape, or for that matter if you approach the national governments "contributing" to MONUC, they all say "there is nothing we can do." Maybe that toss-off line ought to be the official motto of the UN, especially where the UN's own corruption – starting with widespread child molestation on UN dollars – is concerned.
This is from an eyewitness, an aid worker herself, not a journalist, and someone with no axe to grind against the UN -- the contrary if anything.

What to say about the world media, who piously don't investigate, and who report all this mutedly or not at all?

December 12, 2004
Triste Afrique
By Tom Smith

Sad article in NY Times today about chidren in Africa.

More movies
By Tom Smith

Not to be outdone by Professor Rappaport below, I too am planning to see National Treasure. I loved Raiders and own all the premium DVDs of the Indiana Jones movie. The four senior boys in my family were going to see National Treasure yesterday, but the time got away from us after William's soccer team heroically held St. Heterogenous (or whatever) to a mere 7-1 (we were crushed, yes, but their "fourth graders" looked like they were out on parole).

So, instead, I watched the director's cut of "Close Encounters of the Third Kind," which, if you like Speilberg, is really worth seeing. (The boys took a pass, opting for Megamutadeath IV on the playstation.) This cut comes across as grittier, and more focussed on Richard Dreyfuss's ordeal than the original version. It works quite a bit better, I think. Like ET, the tale is not really science-fiction, but a reworking of one of the oldest European (especially Irish) tales, running away from your grim life to join the little people. As science fiction, it makes no sense; its plot is silly, the behavior of scientists and the army inexplicable in various ways, and why those five tones to initiate contact? But it's just incorrect to see it as even soft Sci-Fi. Speilberg is just using the myth of UFOs to tell the story of the obsessed non-comformist who gives up everything (his claustrophobic life) to chase his dream, and improbably finds it.

December 11, 2004
National Treasure
By Mike Rappaport

This movie was panned by the reviewers, but I just loved it. Of course, I am a sucker for early American history and for Raiders of the Ark type thrillers. Highly recommended, if you don't take it (or yourself) too seriously.

The heroine in the movie, Diane Kruger, also played Helen in the movie Troy. At the time, she was criticized for not being attractive enough to play the part of the most beautiful women in the world. I agreed with that criticism, but she more than makes up for any failings in Troy in this movie.

European Troubles
By Maimon Schwarzschild

Victor Davis Hanson is clear-eyed, as ever, in this latest piece, about Europe:
[G]ut-check time is coming for Europe, with its rising unassimilated immigrant populations, rogue mosques entirely bent on destroying the West, declining birth rate and rising entitlements; the Turkish question; and a foreign policy whose appeasement of Arab regimes won it only a brief lull and plenty of humiliation. The radical Muslim world of the madrassas hates the United States because it is liberal and powerful; but it utterly despises Europe because it is even more liberal and far weaker, earning the continent not fear, but contempt.

The real question is whether there is any Demosthenes left in Europe, who will soberly but firmly demand assimilation and integration of immigrants, an end to mosque radicalism, even-handedness in the Middle East, no more subsidies to terrorists like Hamas, a toughness rather than opportunist profiteering with the likes of Assad and the Iranian theocracy — and making it clear that states that aid and abet terrorists in Europe do so to their great peril.

So will the old Ents awaken, or will they slumber on, muttering nonsense to themselves, lost in past grandeur and utterly clueless about the dangers on their borders?
"Ents" are Tolkien characters of course. I say "of course" because Hanson explains about them. I think Tolkien is one of those writers you either love (and know more or less by heart) or hate (and never get far reading at all). I'm not in the "love" category here, I'm afraid.

Back to the Europe Question: Here is Ambrose Evans-Pritchard in the Daily Telegraph (London) on Dutch middle-class families giving up on Holland and emigrating. They are motivated, E-P reports, by despair at the growing Islamist thuggery -- and general anarchy -- spawned by pious "multiculturalism" in Holland.

Ambrose Evans-Pritchard has never been the sort of journalist with whom you would associate the phrase "English understatement". Still, that doesn't mean that all is well in Old Europe.

UPDATE: The future of Europe is one thing. But express disesteem for J.R.R. Tolkien, and you will get swift responses for sure.
The Lord of the Rings,

Is one of those things:

If you like it, you do:

if you don't, then you boo.
-- W. H. Auden

(Hat tip to Seth Tillman.)

Conservatives in academia
By Tom Smith

I couldn’t resist. My comments are in italics. Chait’s piece appeared in the L.A. Times (registration undesirable). Hat tip to Steve Bainbridge.

Why Academia Shuns Republicans
Jonathan Chait

A few weeks ago, a pair of studies found that Democrats vastly out numbered Republicans among professors at leading universities. Conservatives gleefully seized upon this to once again flagellate academia for its liberal bias.

Am I the only person who fails to understand why conservatives see this finding as vindication? No. But most people who fail to understand it are too embarrassed to admit it, let alone write a column advertising their density to the world. After all, these studies show that some of the best-educated, most-informed people in the country overwhelmingly reject the GOP. Studies show it! Good Lord, I had no idea! Do the studies also show that “some of the best-educated, most-informed [sic] people in the country” are conservatives? How could that be? There are actually some of both? Let’s see, here’s a very well educated Democrat and over here, there’s a very well educated Republican. The mind boggles! Why is this seen as an indictment of academia, rather than as an indictment of the Republican Party? Could somebody else step in on this one? I’m still trying to grasp the idea that there could be both well-educated Democrats AND well-educated Republicans. Is this one of those quantum puzzles?

Conservatives have a ready answer. The only reason faculties lean so far to the left is that deans, administrators and entire university cultures systematically discriminate against conservatives. I too find this implausible, as it is hard to imagine university administrators systematically doing anything.

They don't, however, have much evidence to back this up. It is one of those areas of academic research that is curiously neglected, along with the tendency of male professors to be bald and overweight. Mostly, they assume that the leftward tilt is prima facie evidence of anti-conservative discrimination. (Yet, when liberals hold up minority underrepresentation at some institutions as proof of discrimination, conservatives are justifiably skeptical.) I wonder whether Chait would be comfortable with the consequence of his argument, however, that blacks, women, etc. etc. are also underrepresented because they are stupider and don’t want to be professors anyway.

Conservative pundit George Will recently tied the dearth of conservative professors to the quasi-Marxist outlook in African American studies, women's studies and cultural studies. And at many campuses, those departments certainly don't amount to much more than left-wing propaganda factories. As opposed to the L.A. Times It's also true that radical multiculturalist theory — which sees white male oppression as the key to everything — has taken root in plenty of more mainstream disciplines. Driving out more traditional forms of stupidity.

This no doubt makes things hard on prospective conservative academics, not to mention mainstream liberal ones. Not to mention the effect it has on your argument. In logical circles, we call this a big, fat counter-example. But please, continue. A historian I know (a liberal) used to complain that history departments showed little interest in the traditional research he did, only caring about subjects like "buggery in the British navy." Are you saying there’s something wrong with naval buggery? What kind of Neanderthal are you?

But the rise of fashionable left-wing scholarship can be blamed for only a tiny part of the GOP's problem. And that’s what the studies show. Didn’t you see that study in Nature? “Tiny part”. It said so. The studies showing that academics prefer Democrats to Republicans also show that this preference holds in hard sciences as well as social sciences. Are we to believe that higher education has fallen prey to trendy multiculturalist engineering, or that physics departments everywhere suppress conservative quantum theorists? No, but if you are a conservative Republican at MIT or Berkeley, and you want an academic job, maybe you should keep your mouth shut. But look at the bright side. At least female grad students no longer have to sleep with their advisors. But wait! Studies show that never happened!

The main causes of the partisan disparity on campus have little to do with anything so nefarious as discrimination. First, Republicans don't particularly want to be professors. Which this author knows because of his deep insight into The Conservative Mind. You have to understand. Conservatives are a simple people, an instinctive people, with a fondness for music, dancing and strong drink. To go into academia — a highly competitive field that does not offer great riches — you have to believe that living the life of the mind is more valuable than making a Wall Street salary. And you have to willing to use that mind to come up with something better than patently self-serving clichés. On most issues that offer a choice between having more money in your pocket and having something else — a cleaner environment, universal health insurance, etc. — conservatives tend to prefer the money and liberals tend to prefer the something else. That is true. They prefer having more money in their pocket while imposing sacrifices on the less affluent to finance programs that actively undermine their stated goals but at least give their proponents the chance to pose as morally superior. It's not so surprising that the same thinking would extend to career choices. It is true academia offers more opportunities for the latter than does Wall Street, where unlike academia, people are known to be really mean.

Second, professors don't particularly want to be Republicans. In recent years, and especially under George W. Bush, Republicans have cultivated anti-intellectualism. Remember how Bush in 2000 ridiculed Al Gore for using all them big numbers? Well, it was funny, but OK. Lockbox! Lockbox! Sorry, I couldn’t resist.

That's not just a campaign ploy. It's how Republicans govern these days. Last summer, my colleague Frank Foer wrote a cover story in the New Republic detailing the way the Bush administration had disdained the advice of experts. And not liberal experts, either. They weren’t liberal, really. They were EXPERTS. These were Republican-appointed wonks whose know-how on topics such as global warming, and movies about global warming, the national debt about which liberals care deeply and occupying Iraq were systematically ignored. Bush prefers to follow his gut. Well, it’s a very valuable thing in a President to be able to ignore experts. Global warming is a perfect topic to which to bring large amounts of skepticism. And the entire Soviet studies industry was wrong about the Soviet Union, yet Reagan wasn’t.

In the world of academia, that's about the nastiest thing you can say about somebody. No, the nastiest thing you can say is that somebody is a Republican. Bush's supporters consider it a compliment. "Republicans, from Reagan to Bush, admire leaders who are straight-talking men of faith. The Republican leader doesn't have to be book smart," He has to have good judgment wrote conservative New York Times columnist David Brooks a week before the election. "Democrats, on the other hand, are more apt to emphasize … being knowledgeable and thoughtful. They value leaders who see complexities, who possess the virtues of the well-educated." Like many columnists, Brooks is given to over-simplifying.

It so happens that, in other columns, Brooks has blamed the dearth of conservative professors on ideological discrimination. In fact, the GOP is just being rejected by those who not only prefer their leaders to think complexly but are complex thinkers themselves. “Think complexly”? How about “write well”? There's a problem with this picture, all right, but it doesn't lie with academia.

Jonathan, this a good first draft. However, I would try next time to rely a little less on tired cultural stereotypes such as “Democrats are smart/Republicans are stupid; Democrats are altruistic/Republicans are greedy.” I know what you mean, but as we discussed in class, we want to exercise “critical thinking”! Ask yourself, what is the best argument I could make for the position opposite mine? Even force yourself to write something from that POV—a useful exercise! So, for example, could it be that even slight discrimination in a highly competitive industry could have large impacts? Could the absence of role models have an affect on conservatives? Could liberals be so convinced of the correctness of their positions that it affects their judgments as to the quality of scholarship, when really it is just the politics of it they object to? Is there a role for ideological diversity in the university environment? So, might it be desirable to have more conservatives around, even if they are somewhat stupider? Also, avoid awkward phrases such as ‘think complexly.’ If your point is you and your pals are smarter than most Americans, it comes across as a little . . . ironic.