The Right Coast

July 31, 2005
Gaming the System
By Mike Rappaport

One always hears about how the U.S. News and World Report numbers are gamed by various law schools. In fact, some faculty members criticize their own schools for not gaming the system enough. But how do these schools do it? The New York Times has an interesting piece on this, which starts with this amazing example:

"Consider library costs at the University of Illinois College of Law in Urbana-Champaign. Like all law schools, Illinois pays a flat rate for unlimited access to LexisNexis and Westlaw's comprehensive online legal databases. Law students troll them for hours, downloading and printing reams of case law. To build user loyalty, the two suppliers charge institutions a total of $75,000 to $100,000 a year, far below per-use rates.

But in what it calls a longstanding practice, Illinois has calculated a fair market value for these online legal resources and submitted that number to U.S. News. For this year's rankings, the school put that figure at $8.78 million, more than 80 times what LexisNexis and Westlaw actually charge. This inflated expense accounted for 28 percent of the law school's total expenditures on students, according to confidential data filed with U.S. News and the bar association and provided to The New York Times by legal educators who are critical of rankings and concerned about the accurate reporting of data."

By Mike Rappaport

People love their privileges, often regarding them as natural or God-given. Often the only way to convince them otherwise is to grant their privileges to others. Then they suddenly get it.

Maybe Helen Thomas is beginning to get it.

Not Exactly Ethiopia
By Gail Heriot

Hmm. Maimon reports on the poverty in Ethiopia this weekend. I'm at the Ritz Carlton on Maui. We're not exactly leading parallel lives. I will do penance upon my return to the mainland.

July 30, 2005
Ethiopia Diary 2
By Maimon Schwarzschild

One tends to associate Third World poverty with the tropics. Ethiopia is near enough the equator, and its lowlands are certainly tropical. But much of the country is highland: Addis Ababa and the regions surrounding it are above 7000 feet, and quite "temperate".

Your inquiring reporter left Addis yesterday (by car) for Debre Libanos, a monastery town 100 kilometers to the northwest. It is the rainy season, and the tin-roofed shacks and dirt lanes of Addis -- i.e. most of Addis -- are grim with mud. But the surrounding countryside is beautiful: a temperate-zone landscape, rich with eucalyptus and pine and grassland and moss. But rich in little else. This segment of the two-lane main road to the north of the country was built by the Japanese in 2004 and 2005: it is an excellent road, but with little motor traffic. The excursion is otherwise like driving through an earlier epoch. Ploughing is exclusively with clumsy wooden ploughs and oxen. (Not a tractor to be seen.) The villages are of "tukuls": thatched huts with dirt (or mud) floors; no windows, no electricity, no plumbing. Women and girls walk along the roadside bent under hundred-pound loads of firewood. "Transport" generally is largely on foot: there are far more walkers, even far between villages, than motor vehicles.

The further from Addis, the poorer-looking the villages, and the villagers. By the time we reached Debre Libanos, the people on the roadside looked not far from starvation: legs as thin as your arms, cadaverous faces. Debre Libanos itself turns out to be a muddy village of a few mud huts, dominated by a hideous modern church, rebuilt in concrete by Haile Selassie in the 1960s. Debre Libanos is an important Ethiopian pilgrimage site: the "pilgrims" are mostly ill, hoping for miraculous cure. There was also a starveling "native market" in progress, at which almost nothing was for sale: no food whatsoever other than some small bananas.

Whenever a private car stops, dozens of people -- mostly boys but also older men -- appear, seemingly out of nowhere, hoping for a few pennies. We stopped on the Japanese road to hike to a waterfall in a magnificent gorge near Debra Libanos: as soon as we got underway, we were suddenly accompanied by more than twenty-five very thin, very importunate people who seemed to materialise out of nowhere: all wanting to be our "guides". There was no feeling that violence was threatened; just that alms were desperately hoped for, and needed.

The day's scenes were reminiscent of the European dark ages: temperate climate, land that seems fertile enough -- with the technology and economy of a thousand (European) years ago.

Returning to Addis in late afternoon, the city now seemed not so much a muddy shanty town as a relatively prosperous and modern place. (It helped that the rain had now stopped.) Lots of young people in the streets, many apparently employed and trying to be stylish; even the (very occasional) internet cafe. Addis is desperate enough by First World standards. The tin-roofed shacks and mud colonies begin just across the road from the heavily-guarded gates and walls of the Prime Minister's enormous palace grounds. But by rural Ethiopian standards, Addis is wonderful indeed.

Golf as racial profiling
By Tom Smith

This looks interesting, and plausible too.

July 29, 2005
Some brits have had enough
By Tom Smith

Amazing what a few bombs will do.

But where's my Martian colony
By Tom Smith

Some excitement over at Instapundit about this book.

I suppose I will buy the book, but for now I would just like to express some grumpy skepticism. As a religious person, I believe some weird shit, but I just don't believe that in 50 to 100 years, humans are going to fuse with machines and be a trillion times more intelligent. I. don't. think. so. If that were in the cards, I think we would have already developed a cure for back pain, lo-cal ice cream that tastes good, an automatic way to both write and grade exams, a cure for baldness, and television worth watching. And yet, no, we have not.

I was reading one of these "the singularity is coming" guys the other day, and he said in the future, we will have wireless modems planted in our heads so we can be plugged into the internet at all times. Bad idea. Driving is dangerous enough as it is. Also, look at how much trouble wireless networks already cause. They're up, they're down. I really don't want to have to reboot my brain twice a day. And then spam. Do I really want the thought planted in my brain every five minutes that my penis needs to be bigger or I need to tell some Nigerian my bank account and social security number?

I think if we could ask the great coming post-human intelligence whether the singularity is coming, It would say, uh, no, I don't think so. But do I have a low interest re-fi for you.

I'm not holding my breath for the great AI apotheosis, and I don't expect Jesus in the next couple of centuries either. I think technology is as cool as the next person, but I think it's not too soon to prepare ourselves for the notion that we're going to be human for a long time to come. It could be worse.

Turning the Tables on Senator Schumer
By Mike Rappaport

Previously, I noted that Richard Epstein had various questions for Senator Schumer about his constitutional philosophy. Now, Steve Calabresi takes the point further, asking that Schumer -- who has been all about document requests concerning John Roberts -- should provide documents from his chambers:

Republicans are skeptical of the Schumer request and suspect the senator is on a fishing expedition to try to dig up something with which to oppose the hitherto unassailable Roberts nomination. Republicans have solid reason to suspect Schumer of this, since he was overheard saying on a cell phone that he was going to go to war against whoever the president nominated before Roberts was even nominated.

Evaluation of whether Schumer is or is not on a fishing expedition is impossible given the public record as it stands now. Accordingly, Senate Republicans and the administration should call on Senator Schumer to immediately release and make public all conversations and emails between the senator and his staff, between Schumer staffers and outside left-wing advocacy groups, and between Schumer staffers themselves relating to the Roberts nomination. Schumer should also be required to release phone records of all telephone and cell phone calls that were placed between his office and outside advocacy groups since the Roberts nomination.

New planet discovered
By Tom Smith

Depending on what you mean by planet.

Two Different Attitudes
By Mike Rappaport

I really like the blogging of both Todd Zywicki of the Conspiracy and Bryan Caplan at EconLog, both at George Mason. And I think their politics are probably quite similar. But they clearly have different personalities. Compare Zywicki with Caplan.

July 28, 2005
Jobs the Innovator
By Mike Rappaport

The entrepreneur innovator is one of the marvels of capitalism, and Steve Jobs is one of the best. From an article in the New York Times on Podcasting:

"EVER since Steven P. Jobs returned to Apple Computer in 1997 after a 12-year absence, his company has thrived by executing the same essential formula over and over: Find an exciting new technology whose complexity and cost keep it out of the average person's life. Streamline it, mainstream it, strip away the geeky options. Take the credit.

So far, Apple has worked this kind of magic on digital video editing, wireless networking, online music selling, R.S.S. feeds (a kind of Web site subscription) and other technologies. Its latest attempt, however, will be music to an awful lot of ears. With its release of the free iTunes 4.9 software for Mac and Windows, Apple has just mainstreamed podcasting."

Waste your money, find a mate
By Tom Smith

Herein, wisdom.

SD hospitals inferior?
By Tom Smith

This is very troubling. I suspect there is some sort of statistical glitch, but maybe not. UCSD and Scripps Clinic hold themselves out as world class medical care. But this study suggests coronary care, and we all care about that don't we -- MI's are one of the great killers of middle aged, conservative men, RC's demographic! -- is markedly inferior in San Diego.

Shut up and drive
By Tom Smith

And this may also explain the extreme vapidity of so many cell phone conversations. And it was like . . . so totally cute!!!

Adventure tech
By Tom Smith

It's probably just one of those days (sick of Fitness 24, tired of smelling BO at the dojo, too hot to cycle, missing trees and such . . . ) but I am quickly approaching the point where I need to do something both financially and physically irresponsible. Maybe some high mountain thing. But there is also something magical about the Arctic. Great word "arctic." Anyway, this looks like totally awesome gear. Truely, one of the main reasons to travel to obscure places is the opportunity it affords to blow your stash on cool gear. Remember, it's a false economy to scrimp when your life could be at sake.

Oh. Find out about the paperwork you need for K2. But don't do it. Look at the stats. For some reason, women climbers seem almost guaranteed to die there. Some say statistical anamoly, some say curse.

Here's a good K2 story. I think this dying at high altitude stuff is so totally to be avoided, but it makes good reading. Read about the routes. When you read "400 meters of vertical or near vertical rock and ice; can be extremely cold and windy" think of climbing the side of the Empire State Building in mittens and heavy boots during the worst blizzard in NYC history, while really needing to pee.

And, to attempt to make all this relevant to the blog . . . the tech revolution is resulting in, you guessed it, adventure blogging! Two narcissistic activities are a match made if not in heaven, then in the Karakoram or the Drake Passage or the Pacific Crest Trail . . . I realize now I won't be able to make it down. Sorry, Suzie. Sorry, Mom. Please hug the kids for me. The insurance policy is in the file cabinet in the rec room, and the safety deposit box has the jewelry in it. Don't put Fang to sleep yet. He doesn't deserve it just because I dropped my ice ax. I'm not cold anymore. I just feel so . . . unfocused. The clouds are really pretty.

Victory for Free Trade
By Mike Rappaport

George Bush's big victory in the House on CAFTA is hard to find on the New York Times Web site. I wonder why.

Not only did the Democrats take a hypocritical position that would harm those less fortunate than most Americans, they lost.

Not Hitler's Pope
By Tom Smith

A new book on Pius XII. (via instapundit.)

Reading Cornwell's book, Hitler's Pope, should be enough to convince anyone he's less than objective. The first chapter or two try to convince the reader Pius, as a Vatican diplomat before he became Pope, was insturmental in causing, or perhaps the most important cause of, World War I. Somehow, I doubt it.

Whether some evil old nun beat him up, or his Mommy made him pray too much, or it's just a way to suck up to the powers at Oxford, who knows, but Cornell has it out for the Church, and slandering Pius is his vehicle of choice. He has had the effect of provoking several well documented defenses of Pius, however.

July 27, 2005
Akaka Bill
By Gail Heriot

From what I understand, the Akaka Bill is stalled in the Senate and is probably losing support. But I can't resist the opportunity to kick it while it is down--or, better yet, kick the Republican Senators, like Norm Coleman and Lindsey Graham, who told Hawaii Governor Linda Lingle that they would support it.

Over thirty years ago, the Nixon Adminstration agreed to impose/permit an elaborate system of racial quotas known as the "Philadelphia Plan" on building trade unions engaged in federal projects. Why? Some say they were motivated in part by the belief that the plan would divide rank and file union members and hence ultimately weaken the unions as a political force. They had their eye on short-term partisan advantage, and failed to recognize the mischief that preferential racial policies could do in the long term.

With the Akaka bill, this history of short-sightedness threatens to repeat itself. Governor Lingle is the first Republican governor of the State of Hawaii. She believes her political future (and the future of the Hawaiian GOP) depends on the passage of the Akaka bill, and Republican members of the Senate would like to be able to help her. But if any Republican (or for that matter Democratic) Senator is still intending to support this bill, he or she needs to stop, take a deep breath, and think about the precedent that would be set.

Iran's Sham Election
By Mike Rappaport

According to an opinion piece in the Online Wall Street Journal today (subscription required), the Iranian election was a sham:

"Mahmoud Ahmadinejad, Iran's "elected" president, will officially assume his post next month. The elections, no doubt, were a sham and the controversy about voting irregularities is far from settled. Iran's opposition sources revealed that the national ID cards of about five million dead people were provided to regime supporters, enabling them to vote multiple times at multiple locations.

So Mr. Ahmadinejad's victory had little to do with the fact that he campaigned as the "populist" son of a blacksmith and hoisted the flag of class warfare against the "wretched rich and corrupt." Instead, his victory can be attributed solely to his loyalty to the Supreme Leader Ayatollah Ali Khamenei and the support of the Islamic Revolutionary Guards Corps' (IRGC) top brass. A former commander of the Qods (Jerusalem) Force in the IRGC -- tasked with the planning and execution of terrorist plots and assassinations abroad -- Mr. Ahmadinejad was catapulted to the presidency by Iran's ultraconservative faction."

Fed Soc bruhaha
By Tom Smith


To decode the secret message in this op-ed, FedSoc members should set their decoder rings to M-7, repeat M-7.

July 26, 2005
Hope for the ugly
By Tom Smith

No longer will Mom have to tie a pork chop around your neck to get the dog to play with you.

Science news
By Tom Smith

Suddenly it said, I want sushi.

I always wondered how that worked.

And you thought you had mouse problems.

Cats are weird.

Sounds like a movie . . .

I walk a lonely road, blah blah blah
By Tom Smith

Calling these infants punk rockers dishonors those who were there. The Ramones were punk rockers. I wanna be sedated.

Islamic fascist sentenced in the Netherlands
By Tom Smith

Interesting story here.

Division of Labor
By Gail Heriot

It is interesting to compare the San Diego Union Tribune and the New York Times in their coverage of yesterday’s split in the AFL-CIO.

The Union-Tribune emphasized that the dissident unions–the Teamsters and the Service Employees International Union–were fed up with the AFL-CIO ‘s extravagant spending on political campaigns and causes and wanted to increase efforts at organizing non-union employees. It story read:

"At the core of the dispute is the rejected demand by the two breakaway unions and several allies that the federation shift resources from political action and devote them instead to organizing nonunion sectors of the economy.

"Speaking for 1.4 million Teamsters, Hoffa declared, ‘We must have more union members in order to change the political climate that is undermining workers' rights in this country. The AFL-CIO has chosen the opposite approach. . . . Their idea is to keep throwing money at politicians.’"

I find this a thoroughly believable story. I’ve long been surprised at how much money and effort unions put into backing Democratic candidates and left-of-center political causes that their own members often oppose.

In contrast, the New York Times–with its headline, "Ambitions are Fueling Union Split"-- attributed the split mainly to a clash of egos. "[A]s much as anything," the Times explains, "the schism reflects the conflicting ambitions of two titans of labor, John J Sweeney, the president of the AFL-CIO, and his onetime protégé, Andrew L. Stern, the president of the Service Employees International Union, until now the largest union in the labor federation."

Both stories can be true, of course. But the way the New York Times reports it, the reader will be inclined to fault Stern and Hoffa destroying a once-great institution simply to further their individual ambitions. The reader of the Union Tribune story, on the other hand, will be inclined to sympathize with dissidents.

Economic Incentives for Teenagers
By Mike Rappaport

The article from the New York Times suggests the power of economic incentives:

"WHEN you look back on all the attempts to curb teenage drinking, smoking and drug use over the last couple of decades, you start to ask yourself a question that countless parents have asked: Does anybody really know how to change a teenager's behavior? Sometimes the government and advocacy groups have used straight talk, like Nancy Reagan's "Just Say No" campaign. Other times they have tried to play it cool. They drop an egg into a sizzling frying pan and announce, "This is your brain on drugs."

Much of this back and forth is unnecessary. There is in fact a surefire way to get teenagers to consume less beer, tobacco and drugs, according to one study after another: raise the cost, in terms of either dollars or potential punishment.

In just about every state that increased beer taxes in recent years, teenage drinking soon dropped. The same happened in the early 1990's when Arizona, Maryland, New Jersey and a handful of other states passed zero-tolerance laws, which suspend the licenses of under-21 drivers who have any trace of alcohol in their blood. In states that waited until the late 90's to adopt zero tolerance, like Colorado, Indiana and South Carolina, the decline generally did not happen until after the law was in place.

Teenagers, it turns out, are highly rational creatures in some ways. Budweisers and Marlboros are discretionary items, and their customers treat them as such. Gasoline consumption, by contrast, changes only marginally when the price of a gallon does."

July 25, 2005
Supreme Court Law Clerks
By Mike Rappaport

At Powerline, Michael Barone argues that the Supreme Court Justices have too many law clerks. I have long thought that this was a problem for our judicial system. Barone writes:

As a former law clerk to a federal appeals court judge (the late Wade H. McCree, Jr., of the Sixth Circuit), I have long felt that the Supreme Court justices have too many clerks. Some time ago I took a look at the statistics in the annual Harvard Law Review issue on the Supreme Court, and found that each time there was an increase in the number of Supreme Court law clerks there was also a step increase in the number of separate concurring and dissenting opinions. In the 1920s, when Chief Justice Taft encouraged unanimity and when justices had one or zero law clerks, there were few dissenting opinions and very few separate concurrences.

My radical proposal, which I am sure will never be adopted, is: reduce the number of Supreme Court law clerks to one or two. My expected result, were this ever to be done: many fewer separate opinions and clearer, more straightforward opinions that intelligent citizens could easily read in full. Try reading the opinions in most important cases today, and you need to set aside several hours and start by making a flow chart of which justices agreed with which sections of the majority (or plurality) opinion and with which sections of the separate dissents or concurring opinions. Supreme Court jurisprudence has become unfollowable even for intelligent, interested citizens. Almost no one goes through this exercise except law professors, law review editors and members of the bar who are paid upward of $500 an hour for doing so.

Activism versus Scholarship
By Mike Rappaport

Over at Marginal Revolution, Alex Tabarrok compares the attitudes of activists and scholars. Really a must read. Legal scholarship has a high percentage of activist scholarship, in part because of the legal culture and the fact that it tries to speak to courts directly.

July 24, 2005
Michigan Civil Rights Initiative Dealt Set Back by State Board
By Gail Heriot

The proposed Michigan Civil Rights Initiative , which is modeled after California's Proposition 209, was dealt a blow by the highly-politicized Michigan Board of Canvassers last week. Initiative supporters had gathered 100,000 more valid signatures than they needed to put the measure on the ballot. Furthermore, the Michigan Attorney General had opined that the only basis on which the Board of Canvassers could refuse to certify an initiative for the ballot would be the failure to gather the requisite number of valid signatures. According to the Attorney General, it was not within the Board's power to consider why voters choose to sign the petitions. Nevertheless, the Board declined to certify the initiative.

It's unclear why it refused, but after a six-hour circus-like meeting (complete with lefty loonies from BAMN), one member of the board apppeared to be swayed by an argument that the signatories couldn't possibly have understood what they were signing, because some of the signatories were black and no black person could possibly oppose racial preferences.

Yes, there will be (more) litigation. Initiative supporters continue to be optimistic.

July 23, 2005
Questions for Senator Schumer
By Mike Rappaport

Forget about what questions Senator Schumer wants to ask John Roberts. Consider these questions that Richard Epstein wants Schumer to answer.

Did Justice O'Connor foul up her resignation?
By Tom Smith

This is a hoot. And I did wonder about this, since it is similar to an issue that can come up in corporate law. Anyway, O'Connor's letter says that she retires effective upon the confirmation of a successor. However, that implies, does it not, that there is no vacancy until a successor is confirmed. But, the relevant law seems to say the President cannot nominate a Justice until there is a vacancy. This recalls the famous (to some) Idaho law which provided that if two trains approach each other on the same track, both trains must stop, and neither shall proceed until the other has passed.

The post suggests the right way to deal with this little mess, entirely of the Justice's making, and perhaps the final manifestation of her famous moderation (why just resign? That's so absolute, so extreme!), is to treat the condition she imposes on her resignation as a nullity. This apparently follows from a principle I had not heard of before, that being that Justices cannot conditionally resign. I wonder where that legal principle comes from? But whatever. It's certainly convenient to have it around, and if it is not really around, now is a good time to invent it. It would mean the O'Connor legacy would conclude ever so appropriately, with the invention of a new legal rule necessary to get out of a mess entirely of her own making. I certainly concur that the power to make up rules as one goes along is very useful if one has a tendency to get confused with the ones we already have. Maybe we should call it the O'Connor Doctrine. It might be useful to formalize this rule in some case. Perhaps the Supreme Court could sue itself, or Justice O'Connor, assuming it would have standing to do so, in order to determine whether a Justice may resign conditionally and if so, whether the rule that one may not, may be, at least for the time being, imposed on itself, or her, so as to get itself out of this mess.

It also raises the question, how many other of O'Connor's acts may be treated as nullities? I believe there are many important cases where hers was the deciding vote. Could some of those votes be revisited under the O'Connor Doctrine? (That being, recall, that we can revisit silly things done by Justice O'Connor if taking them seriously would lead to constitutional conundra.) This is too deep for me. Best left to our constitutional scholars.

NOT directly relevant, but I remember reading somewhere that O.W. Holmes did not resign from the Mass. Supreme Judicial Court until immediately after his swearing into the U.S. Supreme Court. He was a very careful man (in some ways).

Ethiopian Diary
By Maimon Schwarzschild

The RightCoast spares no effort to bring you first-hand reporting from around the world. Well, we probably spare some effort. Anyway, this RightCoaster is in Ethiopia for ten days, visiting a cousin who is spending the year in Addis Ababa. (My cousin is a midwife and is working with various childbirth charities.)

Ethiopia is not as troubled as some (well, many) other places in Africa, but it is very, very poor. Addis has quite a few 60s-style government office buildings, all intensely shabby and dilapidated; some medium-rise apartment buildings that look as though there are eleven people living in every room; and vast areas of mud-and-straw hovels with tin roofs, dirts lanes running between them, and no plumbing. There are historically important churches and fortifications elsewhere in Ethiopia -- in the ancient Abyssinian capital of Axum and in Lalibela -- but not in Addis. (Axum is about 300 miles north of Addis -- and up to three days' bus or jeep journey overland.)

In Addis, there is a lot of begging, and still more boys and young men in the streets eager, desperate, to do some paid service for a foreigner. A household maid or security guard can easily be hired for 40 US dollars a month, and will work full time, which means up to twelve hours a day, seven days a week. Ethiopians with some high school or better are eager to emigrate: there are long queues outside foreign consulates, and every foreign visitor is urgently queried about opportunities abroad.

Curiously, although Ethiopia was never colonised by an English-speaking country, and indeed was never colonised at all except for a brief, fiercely-resisted Italian occupation, the English language is pervasive along with the national Amharic language. Shop signs are almost all bilingual, as are billboards and public notices. More surprisingly, all education, from junior high school on, is in English. And Amharic, although the "national language", is by no means native to most Ethiopians. There are some 70 vernacular languages, many mutually unrelated. For many Ethiopians, to be even minimally educated requires trilingualism: in a native language, in Amharic, and in English.

As in much of the "third world", there is plenty of obvious entrepreneurial energy here, but also plenty of people who seem to be idle in the street. Banks and government offices have many, many people at desks who are idle at best; at worst, which is not infrequent, they paralyse all activity with triplicate paperwork.

And there is the crippling fact, noted by everyone, that there are no secure property rights. You may "buy" some land and build a house or a business, but the government can expropriate it at any time, without compensation, and frequently enough does -- perhaps for a building project of its own, perhaps for more nefarious reasons. (E.g. bribes, failure to pay...)

Unlike many African countries, Ethiopia is not now riven by civil war. (There was a horrific Communist takeover in the 70s and 80s, ultimately overthrown by military revolt...) Ethiopia is not in a state of anarchy. There are lots of high walls and security guards, but there isn't a pervasive feeling of imminent violence. There are no armies of child mercenaries. There are no "ethnic" massacres, recent or ongoing. There is a fairly high literacy rate: in English as well as in Ethiopian languages.

Moreover Ethiopia is a real country: despite its 70 languages, there is some sense of a common history and common culture. Uniquely in sub-saharan Africa, the country has a long history of independence: it is not a post-colonial artifact with arbitrary borders.

It is a country that ought to have a lot of promise. But there is not much air of promise. Instead, there is that pervasive, heartbreaking eagerness to emigrate.

July 22, 2005
Microwave weapon
By Tom Smith

We could just forget about rioters and use it to cook terrorists.

Abortion and the Constitution
By Mike Rappaport

Ed Whelan explains the issue here and why overturning Roe v. Wade is not the prolife position, but instead one that views the Constitution as neutral about abortion.

Quibble about a Quibble
By Mike Rappaport

Larry Solum has an interesting post quibbling with three aspects of a Wall Street Journal article about originalism. As long as we're quibbling, I have a quibble about one of his quibbles. After quoting the article's statement that privacy rights, such as those in Roe, have been derived based on the living Constitution theory, Larry writes:

This is really quite awful. Most originalists agree that you can't get privacy out of the due process clause, but many originalists believe that other provisions of the constitution--the Ninth Amendment & the Privileges and Immunities Clause--do support a conception of liberty that would be functionally equivalent to an impliled right to privacy.
Larry seems to be suggesting that there are a large number -- "many" -- originalists who buy into these arguments for the functional equivalent of privacy. I doubt it. While Randy Barnett has recently published a book strongly arguing for this position, and some other law professors seem to agree (I think Glenn Reynolds is one of them), it is my strong sense that this view is held by a minority of originalists and probably a small minority.

Of course, that doesn't mean this view is wrong, or that it won't eventually gain a majority of originalists. But it does suggest that it is probably fair for an article on originalism to make the assumption that originalists would be against decisions like Roe and and Lawrence.

July 21, 2005
Israeli Banking Reform
By Mike Rappaport

Interesting article on banking reform in Israel in the Weekly Standard:

ISRAEL'S UPCOMING WITHDRAWAL FROM GAZA is drawing so much attention that few have noticed the dramatic vote this week in Israel's Knesset Finance Committee ratifying a government resolution to finally reform Israel's regressive financial markets. This reform will break up a bank duopoly which has inflicted more harm on the Israeli economy than Japanese banks have inflicted on Japan. Despite continued resistance from the banks, once this reform is enacted and bureaucratically implemented, Israel's economy will take off, realizing its potential to become one of the 10 richest countries in the world.
The article also suggests that this might not be the last of the reforms:

But even more encouraging, for the first time in Israel's history, university students' organizations, representing 80,000 students, publicly struggled for the reform in coalition with free-market advocates. Israeli universities, like their American counterparts, are usually left-leaning. That their students, who have been for so long under the influence of professors who are strident advocates of an extreme welfare state would join the fight for free markets in Israel represents a sea change. This change in mindset, and the structural changes that the economic reform will generate, could transform Israel profoundly.

Cool images from science
By Tom Smith

Time to change your wallpaper. (Hat tip Adam Kolber.)

Prime Minister Howard on Terrorism
By Mike Rappaport

While it has received attention elsewhere, I wanted to post Australian Prime Minister John Howard's response to a question that suggested the terrorist attacks in Britain were the result of the Coalition's efforts in Iraq: (Hat tip: the Corner)

"Can I just say very directly, Paul, on the issue of the policies of my government and indeed the policies of the British and American governments on Iraq, that the first point of reference is that once a country allows its foreign policy to be determined by terrorism, it's given the game away, to use the vernacular. And no Australian government that I lead will ever have policies determined by terrorism or terrorist threats, and no self-respecting government of any political stripe in Australia would allow that to happen.

Can I remind you that the murder of 88 Australians in Bali took place before the operation in Iraq.

And I remind you that the 11th of September occurred before the operation in Iraq.

Can I also remind you that the very first occasion that bin Laden specifically referred to Australia was in the context of Australia's involvement in liberating the people of East Timor. Are people by implication suggesting we shouldn't have done that?

When a group claimed responsibility on the website for the attacks on the 7th of July, they talked about British policy not just in Iraq, but in Afghanistan. Are people suggesting we shouldn't be in Afghanistan?

When Sergio de Mello was murdered in Iraq -- a brave man, a distinguished international diplomat, a person immensely respected for his work in the United Nations -- when al Qaeda gloated about that, they referred specifically to the role that de Mello had carried out in East Timor because he was the United Nations administrator in East Timor.

Now I don't know the mind of the terrorists. By definition, you can't put yourself in the mind of a successful suicide bomber. I can only look at objective facts, and the objective facts are as I've cited. The objective evidence is that Australia was a terrorist target long before the operation in Iraq. And indeed, all the evidence, as distinct from the suppositions, suggests to me that this is about hatred of a way of life, this is about the perverted use of principles of the great world religion that, at its root, preaches peace and cooperation. And I think we lose sight of the challenge we have if we allow ourselves to see these attacks in the context of particular circumstances rather than the abuse through a perverted ideology of people and their murder."

July 20, 2005
Randy B on future Justice Roberts
By Tom Smith

RB sums up my reaction very well.

This makes me more nervous. Why isn't he? Too right wing for him, hmmm? Not just the thing for him? And if it weren't for the Federalist Society, no way people like him would be getting nominated today . . .

Profile in NYT. Is he the smart O'Connor? Can we call him O'Roberts?

I feel more normal now
By Tom Smith

You probably will too.

Doubts about Roberts?
By Mike Rappaport

I must say that I am not entirely comforted by the assurances of many on the legal right that Roberts is, as Tom puts it, one of us. Probably yes, maybe no, but how much one of us? More on this later.

Still, there are some sources of comfort. This post, over at Balkinization, which criticizes Roberts's refusal to adopt a balancing test like O'Connor would, provides me with some comfort.

NY Times, great respector of National Security Secrets
By Tom Smith

It didn't seem to bother the NYT to "out" this genuinely secret operation, in a story that probably actually did harm the WOT on the margin.

And AP published pictures of Navy SEALs, even though doing so may have compromised their security.
(See also this interesting update on where some of these incidents ended up.)

I suppose you could distinguish Rove by saying, unlike the press, it is not his job to undermine the nation's security.

Note from former SEAL
By Tom Smith

This interesting note from a former Navy SEAL and student of mine, who is now a lawyer for the Navy.

Thanks for mentioning the memorial in Hawaii in RC. I thought you might also be interested in the ceremony that was held at the Naval Academy yesterday for LCDR Erik Kristensen, a classmate of mine. I haven't seen any reporting on it today; probably because Annapolis isn't the open campus it used to be. There wasn't a camera or reporter in sight thankfully. There were, however, thousands of mourners. It was the first time I have seen the chapel there filled to capacity. Erik's roommate made one of many moving eulogies, the content of which both encapsulated and transcended the ceremony. He emphasized what a truly outstanding person Erik was in every regard and, reverently, that it is just such men whom we require to lead our forces in combat. The term "special trust and confidence" is not a hollow phrase. It represents the profound significance we attach to protecting and taking life. The bitter irony is that because we value this responsibility so dearly, we lose some of our very best on the battlefield. In my own mind, I contrasted this to our current enemies; content to let exploitable minions blow themselves to bits along with the softest of targets. That is more than a difference of strength or tactics; it is a cultural difference as wide as the ocean.

Senator Leahy comes out againt those darn judicial activists, like Scalia
By Tom Smith

Laugh or cry.

Potentially worrisome plea deal
By Tom Smith

The Atlanta Olympics bomber got a good deal for himself with his last pile of explosives.

Real law
By Tom Smith

USD Law is very well represented on the new law reality TV show, "The Law Firm" on NBC. Real young lawyers will fight it out over real cases, or something like that. The winner gets enough money to stop practicing law. No. Just kidding. That was very negative, and I'm sorry. You will notice that all the young lawyers, male and female, are unusually good looking. It's TV and it's California. I think one of these kids might have been in one of my classes, but maybe not.

Maybe the law school can get some good publicity out of this. I hope one of them will say, I really loved my years at USD . . .

Is Roberts one of us?
By Tom Smith

Here's a view from a cite I regard as sorta red meat conservative, as opposed to the highly nuanced, subtle and downright smarty-pants conservatism familiar to readers of the RC. I admit that after my initial pleasure at the Roberts nomination, I am now having some qualms. Without doubting the guy is God's gift to oral advocacy, I wonder, is he or ain't he, conservative that is? Ann Coulter, who speaks her mind, notes that in a long career, he seems never to have said anything that could be considered controversially conservative. I noticed that on NPR last night, Doug Kmiec was very careful in his praise of Roberts. What he said was that Roberts was a very, very careful lawyer, and he said it with a worried voice. Well, that's nice. Carefulness is good. But is he, for example, an originalist? What does he think about the usual lineup of great acts of judicial legislation?

You don't have to be a cynic to see Herr Rove's handprints all over this one. Here is a blue chip nominee neither Bush's enemies nor his supporters will be able to suss out until it's too late. Very clever. Perhaps too clever.

I think I may have opined before on the dangers of nominating careerists to the Court. The danger is, once on the Court, the only way to go up, which is what careerists do, is to maximize your esteem in the eyes of the commentariat, and your power by putting yourself in the middle, in that ol' swing vote chair. As I have read more about Roberts, my fears have grown, not shrunk. But then, I'm a pretty paranoid sort of guy. (Do you have CBN suits in your garage? I do! Why not? They're cheap!) So what we may have here is just a really smart version of Kennedy or O'Connor, to the extent that is not a contradiction in terms.

OTH, maybe Roberts really is that rare bird, a stealth candidate who is really a conservative. It's possible. Fantastically unlikely, but possible.

I also agree with Coulter and Polipundit that being vouched for by true blue conservatives means less than nothing. Conservatives tend to be trusting. Conservatives stop and help people fix a flat (What would Jesus do?); liberals drive by and feel guilty about it; leftists drive by and explain the conspiracy among big rubber companies. If we had a vote for every conservative that vouched for Souter and Kennedy, we would be living in rule of law paradise by now.

A MORE cautiously optimistic view here. So maybe Roberts will be another Rehnquist? Maybe. But as I recall Rehnquist had made his bones in Arizona and there wasn't much doubt he was a committed Republican when he was nominated.

HAPPY conservatives here. I hope they're right. Though clerking for the late Judge Friendly is very prestigious, it's not a conservative credential. Not like clerking for, say, Scalia. To get a Friendly clerkship, you had to be annointed by former Friendly clerks turned professors at Harvard or Yale law school. My impression at Yale was that it was a case of Federalist Society members need not apply. Roberts was at Harvard before the birth of FedSoc. So . . . who knows. Conservatives would not be having these worries if Judges Luttig or McConnell had been chosen.

July 19, 2005
Who is Roberts?
By Mike Rappaport

Jonathan Adler has this to say about John Roberts:

"John Roberts was confirmed to the D.C. Circuit court of Appeals in the last few years, though he was first nominated in 1991 by Bush 41. He is a "middle-aged white guy," but he is universally regarded as among the best Supreme Court advocate in the nation, bar none. He clerked for Rehnquist, was deputy SG, is a remarkable oral advocate and a sharp legal mind. He is liked and admired by all of the current justices, who regularly look forward to cases in which he is representing one of the parties because of the quality of his work. If a case is winnable, he will win it. It is a travesty he was not confirmed to the D.C. Circuit in the 1990s when first nominated. Setting aside ideology — and he has a sterling conservative reputation despite the relative lack of a paper trail — he is close to the Platonic ideal of what a Supreme Court nominee should be."

By Tom Smith

MSM sources are reporting Roberts will be W's SCOTUS pick. You would think NBC and AP would have to have a very solid source to run with this story; they quote a "senior administration official." Even so, it could be a ruse.

I must admit I would be surprized and pleased by this choice, based at least on second hand reports of Roberts's abilities and views. I do not know anything personally about him. I am not quite sure what the WHS is thinking. A Roberts nomination guarantees a big fight in the Senate, and a good chance of the nuclear (or "entirely justified as well as constitutional") option being invoked. I thought Bush wanted to avoid that. It is almost as if Bush said, just forget about the politics, who is the best judge for the job, and Roberts name came up. Not only is he a white guy; he really looks like a conservative Republican. I would love to have been there when W made the decision.

Betting Who is the Nominee
By Mike Rappaport

The bets on Tradesport, one of the web sites that allows bets as to who will be the nominee, have been all over the place. At first, Edith Brown Clement was the frontrunner, then it was strongly for Edith Jones, and it now it seems like a contest between Jones, Luttig and Roberts. I am much happier with a race between the latter three than a Clement nomination. Now, that's progress.

Fifth Column Marches Again
By Maimon Schwarzschild

There was a week's pause after the London bombings, just for form's sake. Now those hoping that terrorism will achieve in Britain what it achieved in Spain are emerging, as inevitably they were going to. A report by two academics (of course...) has been splashed on all the British front pages, blaming Britain's participation in Iraq -- and especially Britain's subordinate role as a "passenger" in the US-led coalition -- for the terrorist attacks. Tony Blair and his government are rebutting vigorously, pointing out the obvious, that Islamist (and al-Qaeda) terrorism long antedated allied action in Afghanistan and Irag. And Jack Straw, the Foreign Secretary, says he is "astonished" that the report suggests "that we should not have stood shoulder to shoulder with our long-standing allies".

The fundamental bad faith in the academics' report comes through in their prominent complaints about Britain being a "passenger", and the US being the leader of the alliance in Iraq. (This is academese for "Bush's poodle".) Obviously, if Britain is a target for joining in the action against Saddam Hussein, she would be no less a target if she were an "equal partner" (or the "leader") in the war. It's clear enough: like many intellectuals (and "intellectuals") in England, the authors no doubt despise the US and resent the Anglo-American alliance, especially with the reviled Bush as President.

Will "Spain" come to pass in England? There is reason to think the British are made of sterner stuff, despite the best efforts of much of the intelligentsia. Also, the Chirac French and Schroeder Germans are less and less an option for any sort of alliance with Britain.

Also, there is no imminent election in Britain.

But Tony Blair -- and those who stand with him, and with the alliance -- will never have an easy time politically. And there will be no inhibitions now, among any of the usual suspects, about invoking (and exploiting) the terrorist attacks against Blair and against the alliance.

Original Intent and Original Meaning
By Mike Rappaport

Stanley Fish, of all people, defends originalism in the New York Times. Amazing. Fish makes an arguement for original intent that suggests that it is the only meaningful way to engage in interpretation. I am quite familiar with this type of argument, which is often employed by colleagues Larry Alexander and Sai Prakash.

Jim Lindgren, at the Conspiracy, responds to the argument with the following powerful discussion:

While Fish says there is no alternative to looking to the intent of the author, there is an alternative, indeed, what might seem to be a better alternative: looking to the intent of the enactors, signers, and ratifiers. OK, so Fish might be willing to accept that move, perhaps by revising the idea of the "author" to mean not the author of the language but rather the enactors of the statute or Constitutional provision.

Yet that simple move changes the analysis considerably. Once you have hundreds or thousands of enactors or ratifiers, then you are usually talking about the public meaning of words at the time, not the idiosyncratic private meanings of the man or woman who drafted the language. Now you are in the realm of "original meaning originalism," not "original intent originalism" which Fish posits as the only form of interpretation.

Nonetheless, some original meaning originalists will allow idiosyncratic meanings to trump the usual public meaning at the time if that idiosyncratic meaning was publicly discussed and probably agreed upon (or presumably if legal terms of art are used that differ from ordinary public meaning, e.g., "under color of official right"). Where such idiosyncratic meanings were not discussed publicly or where searching for them might lead to more error than not searching for them, for some people (not me) "textualism" might be a crude shorthand label for looking to the meaning intended by the enactors and ratifiers. Given the cooperative enterprise of enactment or ratification, their intention is very likely to be the public meaning of the words at the time.
This last position is pretty close to my view as to originalism. One point I would add though is that if people at the time believed the text is what mattered, then that is another reason to believe that the text is the place to find the relevant intent of the authors and ratifiers.

Update: When I posted this, I hadn't realized that Tom had weighed in, immediately below.

Second Update: Upon rereading my post, I think that I may have misinterpreted Jim Lindgren and as a result been misleading about my position. Jim discusses idiosyncratic meaning and terms of art together, but I think they are different. If the Constitution employs language that has two meanings -- an ordinary meaning and a more specialized public meaning, like a term of art -- then it is up to the interpreter to resolve that ambiguity through ordinary methods of interpretation. I don't think there is any problem with following the term of art if that is what the other evidence suggests is the proper meaning. By contrast, if the authors used a term with an idiosyncratic meaning that was not generally known, then it is problematic to rely on the debates and to choose that meaning. So if Madison and the gang in Philadelphia used words strangely, the Ratifiers would not know about that and that meaning should not be followed. But what if the Ratifiers (in the thirteen states) did know about the meaning? If the Ratifiers knew about the meaning, then it is hard to call it an idiosyncratic meaning. Instead, it seems to be a public meaning (perhaps of a specialized sort).

Ah, you say, but what if it was an idiosyncratic meaning, known only by the Ratifiers, but not the public? I suppose one might want to know why the Ratifiers would assume that was the correct meaning. Their choice of the correct meaning would, in my view, be based on the interpretive rules that they believed would apply, and those interpretive rules did not look to idiosyncratic meaning. Thus, they would not look to the idiosyncratic meaning, only to a specialized public meaning.

Avoid old fish
By Tom Smith

Stanley Fish has an op-ed piece in the NYT about originalism, sort of. Prof. Althouse pokes a hole in it here. As I understand Fish's position more generally, his view is something like, meaning comes from intention and you can't know what intentions are. Maybe his views have changed, but it was roughly that 20 years ago, and last time I checked. So for Fish, intentionalism is just a raft floating on a bottomless ocean of ignorance. This is one of many reasons English professors should not be allowed to practice philosophy without a license. It is reason law schools should hire PhD's in philosophy. If philosophy is going to corrupt law, at least it should be good philosophy.

The idea of objective meaning is pretty standard in contract law and has been since Holmes. You can believe in it without taking a position on what words really mean. This is law, not philosophical semantics. If I promise to pay you Tuesday for a hamburger today, my idiosyncratic subjective meaning for Tuesday (perhaps I don't use the Gregorian calendar! Perhaps I suffer from day of the week reversal! Perhaps I am a complete idiot!) just don't count. Maybe there's even a default rule that says Tuesday means, end of normal business hours Tuesday. You didn't know that? Tough shit. You will next time. It doesn't take a lot of imagination to see why contracts should be interpreted according to what the reasonable person would take the words in them to mean.

I think the significance of ratifying constitutional language comes from the fact that the Constitution had to communicate something from the Framers to the ratifiers (not to mention among the framers themselves, and not to mention subsequent generations). You can imagine other uses for language, but if the idea is to use it to get agreement on terms, as in a contract, or in a constitution, then taking it to mean what it communicates, seems pretty fair and reasonable. Of course, if you are an anti-liberal (as in anti- consent of the governed and all that) such as Fish seems to be, that's far too straightforward. Interpretation has to lead you into some inescapable quagmire from which only authority can extract you. So my guess is that's why Fish favors intention--because he thinks it leads to a paradox. Meaning must be intention, but it is unknowable, oh well, I guess you all will have to do as I say now. Thank goodness English graduate students don't make very good storm troopers. I think he's really more of a Hobbes fan or even an Augustine (compel them to come in) sort of guy, without the God part, of course. Very creepy stuff. Imagine Straussianism, but instead of a cult of the ancient philosophers and various Leo Strauss whisperers, your cult is around a mish mash of has been European lit crits and the Fish himself. Yuk-o-rama. And we're all supposed to be so dazzled by it that we can't see that it's a load of insincere, third-rate amateur philosophy pretending to be the latest and the deepest. He reminds me of the Grand Inquisitor (but the grandeur is pretty faded) or, better, that evil Jesuit in The Magic Mountain.

Moral Equivalence Then and Now
By Mike Rappaport

The moral eqivalence arguments about Islamic Facism and Western Democracy are an instance of a much older meme.

Edith Brown Clement
By Mike Rappaport

The rumors say it is her. I would prefer a nominee that we knew more about, but at least some of her decisions seem favorable.

July 18, 2005
Thank you, Stuart
By Tom Smith

Here's a novel thought. Let's not appoint to the Supreme Court a not particularly distinguished lawyer who stands out really only because he is the close pal of W. Mediocre (by Supreme Court standards) and pal of the Prez should not a Supreme make. Stuart Taylor spells it out.

[Gonzales] has not shown outstanding qualities of mind or heart. Some of us might prefer a pragmatic nominee without a fixed ideology -- if he or she had displayed deep understanding of the law, outstanding intelligence, independent judgment, fair- mindedness, and wisdom.

But Gonzales has not. He was a journeyman partner in a big Houston law firm before meeting Bush. His Texas Supreme Court opinions are pedestrian and undistinguished. His public statements mix prefabricated talking points with vacuous platitudes. By many accounts, he typically says little or nothing during internal debates and discussions among administration lawyers. Colleagues speak well of his character. But their praise of his abilities is, in most cases, rather faint.

Independent judgment? Bush, who prizes loyalty and bristles when challenged, has said that Gonzales gives him good advice. Might it just be that Gonzales tells Bush what Bush wants to hear? The next time Gonzales testifies on Capitol Hill, senators should ask: Have you ever advised your boss against doing something he wanted to do?

Hillary ain't seen nothing yet
By Tom Smith

The future of internet porn is here. Hint: it's not really about chickens. At least I hope not.

Hawaii's Effort to Un-Melt the Melting Pot
By Gail Heriot

The proposed Native Hawaiian Government Reorganization Act is an appallingly ill-considered piece of legislation. And if something isn’t done to stop it, it will become the law of the land soon. See details here and here.

The Akaka bill (as the bill is known) would confer quasi-sovereign status on the "Native Hawaiian" minority living in Hawaii. Native Hawaiians (defined racially rather than by birth situs) would be free to create their own racially-exclusive governing bodies in much the same way that Indian tribes now do. In theory, this will allow Native Hawaiians to get around the Supreme Court of Rice v. Cayetano, which prohibited the State of Hawaii from holding elections in which only Native Hawaiians could vote for the Board of Trustees that administers Hawaii’s elaborate system of Native-Hawaiians-only benefits.

There is a difference between recognizing real Indian tribes and making Native Hawaiians into an Indian tribe. The former was a bow to political reality. These Indian tribes were not fully part of the United States at the time of their recognition. Most important, they had not been brought under (and have still not been brought under) the sovereignty of any state government. In some ways, they were and continue to be foreign nations. Native Hawaiians, on the other hand, are ordinary citizens of Hawaii, who are retroactively seeking this semi-foreign status.

It’s hard to imagine a worse precedent. If Native Hawaiians, who are currently full citizens of Hawaii and the United States, can un-melt the melting pot, what about other groups? The Amish in Pennsylvania? Cajuns in Louisiana? Cubans in Florida? Quite large groups could play at this game. What about Mexicans in the Southwest? Blacks in the Deep South?

More on this topic later...

July 17, 2005
Not liking Cryptonomicon over at Crooked Timber
By Tom Smith

I promise not to tell anybody. Me, I liked it quite a bit, when I read it several years ago. Maybe that makes me a nerd fellow traveller or something. I liked a lot of things about it, and didn't dislike really anything, except I thought it had one of the more bizarre sex scenes towards the end. Too, ah, quantitative. All the cryptography stuff was interesting, the attack on PC academics was gratifying, the adventure story was adventurous; what's not to like? It's very much a libertarian book. Its take that liberty at the end of the day is all about being able to keep secrets is almost deep.

A long way from Afghanistan
By Tom Smith

Report on the memorial service at the Punchbowl for 8 Navy SEALs killed in Afghanistan.

Story of the mission here. Apparently, this is the largest loss of life for SEALs on a mission since WWII. The SEALs are a tightly knit community. Many SEALs and former SEALs live in San Diego, and a number of SEALs have come through USD law school over the years. They tend to be good students. Verna, who used to run the law school from her perch in the registrar's office for many years, had her retirement party recently, and I noticed a tiny gold trident hanging from her neck. It turned out that both her sons had been Master Chiefs in the SEALs, now both retired, but one now working as a bodyguard in Iraq. His mother didn't want him to go, but he said "that's where my buddies are."

This loss is going to hit them hard, but I doubt if it will do anything but increase their resolve.

Harry Potter VI
By Mike Rappaport

Having purchased the sixth book Friday night at midnight, it has been impossible for me to look at it until late Saturday night, since my son has spent the entire day reading it. Apparently, this is going on throughout the world. My son is nearly finished, and has gone out, so I finally have my chance.

The first chapter of the Potter books is always some type of recapitulation of past books, but this was the most charming of the recapituations yet. Quite fun. And the second chapter starts things off very quickly, with intrigue and double agents, and great character development.

I am really looking forward to reading it. I know the Harry Potter stories are just children's books, but the fifth and (probably) sixth books are much more sophisticated.

July 16, 2005
Dutch tolerance
By Tom Smith


It's all your fault
By Tom Smith

British press self-blame sweepstakes.

Oxford Diary
By Maimon Schwarzschild

I've been teaching this week at our Law School's summer program in Oxford. (The sun never sets on the University of San Diego.) Our program is at Christ Church college this year, probably the grandest of all the Oxford colleges architecturally, and the college with the most aristocratic undergraduates over the centuries. Roy Jenkins, who was Chancellor of Oxford University in addition to his political and literary careers -- a very English combination -- once described Christ Church as a "luxury liner docked at the edge" of the rest of Oxford.

The glorious architecture may be better burnished than ever, since the Oxford colleges, which used to be somewhat unworldly, now market themselves agressively for foreign and corporate programs and conferences, which gives them more money to spend on keeping up the buildings and grounds.

The college gates are closely guarded, though. Within, all is honey-coloured stone, putting-green lawns, and imaginatively landscaped gardens. Beyond the gates, there is a rowdier Oxford of chip shops, fast food, pubs, "townie" kids, and backpackers from everywhere in Europe and around the world. It's a scene.

The bomb attacks on London last week haven't overtly interfered too much with any of this, I'm glad to report. Civilisation, or at least pub service on warm summer evenings, contrives to carry on. The priest officiating at evensong at Christ Church last night -- the Christ Church college chapel is also the Anglican cathedral for the Oxford diocese -- was an American woman of grim, leftist visage. She offered an "intercession" against "demonising" the "young people" who bombed London. ("Perhaps we can never know what their reasons were...") If she had been doing a deliberate parody of earnest p.c. idiocy, it would have been a good performance. But there are other, saner, views in Britain. And there may actually be some effort now to rein in the incitement that has lately been pouring out of the mosques and Islamist institutions of Londonistan.

Its Harry Potter Time!
By MIke Rappaport

Just came back from the Barnes and Nobles, where my 13 year old son and I picked up, at midnight, the new Harry Potter book. What an event? Hundreds of people drove to the book store very late, some dressed in Harry Potter garb, to get the new book as soon as they could. I can't think of anything like it.

Concerning Harry, there is an interesting piece in the Wall Street Journal that sees J.K. Rowling's work as inspired by Churchill's resistance and eventual triumph over British appeasement and the Nazi menace. While I agree with the Journal piece that Rowling has probably modelled her story on those events, I have tended to view the story in terms of the fight over whether to appease our more recent enemies -- the forces of fundamentalist Islam. See here.

What has been surprising to me, as I have read the five books, is just how much I have agreed with the world view and the values of J.K. Rowling. In a world dominated by liberal sensibilities that I often find alien, I feel right at home in Rowling's world.

July 15, 2005
Big Bang go bang?
By Tom Smith

I know our readers want to keep up with developments in cosmology, so they need to know the Big Bang ain't what it used to be. Science is strange; it's all about what scientists are willing to say, and now some of them are willing to come out and say It never happened. This recent conference was important, apparently. Not exactly beach volleyball in Baja, judging by the photos.

Perhaps the most disturbing thing is that, uh, well, here . . .

The homogeneity and isotropy of the Universe – also
known as the Copernican principle – is a major postulate
of modern cosmology. Obviously this assumption
does not imply exact homogeneity and isotropy, but
merely that the observed cosmological inhomogeneities
are random fluctuations around a uniform background,
extracted from a homogeneous and isotropic statistical
ensemble. One may expect that the ever improving observations
of CMB fluctuations should lead to the greatest
vindication of this principle. Yet, there have been a
number of disturbing claims of evidence for a preferred
direction in the Universe [1, 2, 3, 4, 5, 6, 7, 8, 9, 10],
making use of the state of the art WMAP first year results
[11]. These claims have potentially very damaging
implications for the standard model of cosmology.
It has been suggested that a preferred direction in
CMB fluctuations may signal a non-trivial cosmic topology
(e.g. [1, 12, 13, 14]), a matter currently far from
settled. The preferred axis could also be the result of
anisotropic expansion, possibly due to strings, walls or
magnetic fields [15], or even the result of an intrinsically
inhomogeneous Universe [16]. Such claims remain controversial;
more mundanely the observed “axis of evil”
could be the result of galactic foreground contamination
or large scale unsubtracted systematics (see [17, 18, 19,
20] for past examples). A closer inspection of the emergence
of this preferred axis is at any rate imperative.

So the cute cocktail party phrase (the level at which I operate I'm afraid) to drop is "axis of evil" -- an apparent inhomogenity in universe stuff that should not be there, if the Big Bang theory is true. So if someone is acting all smart about the Big Bang, you ask, what about the axis of evil? (Personally, I still like the Big Bang, but tastes differ.) Maybe it's only that important satellite whose initials I can't remember [oh yeah, it's WMAP] is just screwing up, but some smart people don't think so. If the inhomogenity turns out to be the edges of a giant fishtank, or the inside of a giant shoe, it will put the whole ID debate in a new light . . .

al Reuters update
By Tom Smith


Hold Everything!! Orrin Hatch Has Written an Autobiography!!
By Gail Heriot

Just kidding. Actually, Senator Hatch’s autobiography, entitled "Square Peg: Confessions of a Citizen Senator," was published back in 2002. And judging from the fact that remaindered copies are available on the internet for one cent, I’d say it didn’t sell too well. Indeed, I’d never heard of it until I read about it on a blog earlier this week (and as a former staff member of the Committee on the Judiciary, I have greater reason than most to take note).

Evidently, however, someone thinks that I am morally deficient for not having read it. And this appears to have been written without irony (though perhaps not without the liberal application of alcohol.) The same blogger who drew my attention to the Hatch autobiography in the first place accuses me of a willful "sleight of hand" for concealing facts disclosed in the book (and as far as I can tell no where else). And though he acknowledges that it may be that I had no knowledge of the facts, such a state of ignorance in his view may be "worse" than willful concealment. Apparently, the Hatch autobiography is literally a "must read."

Naturally, that piqued my interest. But neither the library here at USD, Borders, Barnes & Noble nor any other local bookstore my assistant called had it. (The San Diego reading public is evidently morally deficient too.) We finally tracked it down at another university library (happily saving me the one cent plus shipping and handling through

Let’s leave aside the accusation that I either knew or should have known about what’s contained in the Hatch autobiography, because that’s just plain silly. (Why do people insist on casting arguments in such terms?) Let’s look instead to see whether the information offers something new on the topic at issue.

That topic, by the way, is Presidential discretion in the nomination of judges. The blogger is concerned about my recent post comparing Sandra Day O’Connor’s retirement to Byron White’s. In it, I stated:

"At the time [of Byron White’s retirement from the Supreme Court], no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel of the National Right to Life Coalition to the Supreme Court. Or the former general counsel of the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters. Go figure."

The blogger contrasts this with a passage in the Hatch autobiography recalling a telephone conversation concerning White’s replacement between Clinton and Hatch, who was then Chairman of the Senate Committee on the Judiciary:

"President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.

"I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

"Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsberg [sic] of the District of Columbia Court of Appeals [sic]. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg [sic]."

We all know the rest of the story. Clinton went on to nominate Ginsburg (and later Breyer). The blogger apparently believes the Hatch autobiography proves that the driving force behind these nominations was not Clinton, but the Republican Senator from Utah. As the blogger put it, "in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton’s presidency (indeed naming the justices)," I "omitted material facts." (Emphasis supplied.)

Well, Democrats can relax if they’re worried that this shows Hatch was naming justices for Clinton. Hatch made no claim that the initial idea for nominating Ginsburg or Breyer came from him. And if he had made such a claim, it would have been demonstrably false. Hatch says the telephone call took place after Bruce Babbitt’s name had been "bouncing around in the press." Judging from the Nexis database, that didn’t occur until June of 1993. According to the newspapers, Ginsburg and Breyer had been on the Clinton Administration’s short list from the beginning. Both names had been repeatedly mentioned as far back as March. Hatch was simply inquiring about names he already knew had been under consideration. It’s no surprise that Clinton would ultimately pick from that list.

Why then might Clinton have coyly replied that he had simply "heard of" Breyer and that he had not "thought of" Ginsburg? Well, it’s always possible that he’s fibbing (or that Hatch is fibbing about the whole conversation), but there is certainly no reason to jump to an ugly conclusion. Clinton the man should not be mixed up with the Clinton Administration. Administration aides may have been working overtime to consider thoroughly the names on the Administration’s short list. That doesn’t mean that Clinton himself was prepared to talk about their merits with Orrin Hatch. Under the circumstances, it would be perfectly appropriate and truthful for Clinton to make the statements Hatch says he made.

Would it have been better if Hatch had been more careful to make it clear that both Ginsburg and Breyer were already under consideration by the Clinton Administration? Well, that’s judgment call for the author. Given that Hatch managed to misspell Ginsburg’s name and mis-name the court on which she sat, it possible that between my blogger friend and me, we have already spent more time thinking about this passage in the book than Hatch himself ever did. In any event, trying to persuade the author of a political autobiography that he should take special care to ensure that his readers don’t overestimate his power and influence is a fool’s errand. The world may just have to be satisfied with the knowledge that the record clearly demonstrates that Hatch was not the first to suggest the names of Ginsburg and Breyer to the Clinton Administration. And it is naive to imagine otherwise.

Does the passage nevertheless prove that I was incorrect to suggest that members of the Senate thought "a President ought to be given substantial discretion" when it comes to judicial appointments? It does show that Hatch thought the some members of the Senate (apparently of both parties) would oppose the nomination of Bruce Babbitt. And although Hatch doesn’t clearly specify why, he leaves the impression that it was because Babbitt was a politician, without judicial or even much legal experience. But "substantial discretion" does not mean "infinite discretion," so the fact that one among many potential Clinton nominees (and a non-traditional one at that) would have faced opposition hardly seems like evidence that a Presdient ought to be put on a short leash.

As for Hatch’s support for Ginsburg, I can’t imagine an example that would better support my point. Hatch acknowledges that Ginsburg is a "liberal." And in case anyone has failed to notice, Hatch is not a liberal and has no reason to hope for liberals on the court. He nevertheless felt obligated to support her nomination, because, as he puts it, she was a "highly honest and capable jurist[]." No doubt he hoped that Democratic senators would the same for a highly honest and capable conservative jurist.

Name your baby, waste your time
By Tom Smith

Cool data visualization.

You're on notice, you can't complain
By Tom Smith

Blogger T-shirt.

July 14, 2005
It's true, Hugh Hewitt is good at what he does
By Tom Smith

HH is good as disassembling pompous fools. Like what's his name on CSPAN.

Interval training
By Tom Smith

This study made the mainstream news a couple of weeks ago. McMaster University (where a number of these higher end training studies seem to come from) researchers found that 20 minutes of interval training three times a week was more effective at building endurance than 5-6 hours per week of moderate exercise. Well alrighty then. Sounds perfect. Interval training here means 30 seconds of all out effort with 4 minutes of rest in between, repeated 4 to 7 times. It is said to be painful, but it sounds easier than slogging away for six hours.

The test subjects, however, were physically active students, but not athletes. If you are already in pretty good shape aerobicly, would you experience similar benefits? Also, you burn fewer calories, so it may not be the best way to lose fat. Several of the articles mention the "intense suffering" of interval training. I think that is overstated. It involves pain, yes, but boredom is a kind of pain too. Short, intense workouts make a lot of sense.

I TAKE back whatever I implied about it not being that painful. I don't understand how a mere five 30 second all out sprints (I did them up a longish flight on stairs on campus) can be that painful; yet it definitely gets to you. A reader sends the abstract and notes it was quite a small study, over a very short period, and not clear what the control group was doing, which is fair enough.

Not Gonzales
By Gail Heriot

For what it's worth, the report from Fred Barnes at the Weekly Standard is that Bush is now leaning away from nominating Alberto Gonzales for either O'Connor's slot or the next Supreme Court slot.

Note to readers
By Tom Smith

A reader, possibly loyal, persuaded me that the Marines praying post was based on an email story scam. So I deleted it. At least we here at the RC admit it when we are wrong. I told you it might not be true, and I guess it wasn't. I don't think I shall have to wait too long for the next ACLU excess, however.

July 13, 2005
Are you an originalist?
By Mike Rappaport

Edward Whelan asks the question at NRO.

Santorum says idiotic things
By Tom Smith

This senator needs a minder.

Boston's generally liberal climate has little or nothing to do with pedophile priest scandals. This book, which I found riveting, but that may just be me, explains the cultural background very well. It does have to do with a permissive culture within Catholic seminaries in the late sixties and seventies, but that's a very specific thing. (The book must be taken with some salt, but it does say things most in the Church won't say.) It is hardly the same as plain old working class Democrats in Boston thinking the Kennedys can do no wrong. For heaven's sake, many of the liberals Santorum is talking about just learned their politics from their ancestors, who had progressive politics, but fired Katie O'Mally the maid for stealing a pound of cheese so the little ones would have something special to eat on Christmas.

Interrogation techniques
By Tom Smith

Informative article.


A voice, crying in the wilderness, and then just crying
By Tom Smith

Please go to the bottom of this post; I have new numbers . . .

I would delete the old post, but that seems to violate some norm of the blogosphere, but I am retracting the numbers in the post between the brackets and substituting the new numbers below. My blog my rules!

[Do you sometimes feel, Professor, that no one is listening to you, that your articles are ignored? IS ANYBODY LISTENING?!! Well, the bad news is, you are probably right. That is, you probably are being ignored. I will try to make this point in forthcoming article(s), but probably no one will pay any attention to me, so this is your chance . . .

I just got some new data back from Lexis, with whom I am engaged in a massive citation study, but that's another story. This data concerns law review articles that are in their Shepard's database and how much they get cited. This data covers about 385,000 law review articles, notes, comments, etc. etc. that appear in 726 law reviews and journals, and looks at how often they are cited. Cited by other law reviews, or cases.

First of all, 43 percent of the articles are not cited . . . at all. Zero, nada, zilch. Almost 80 percent (i.e. 79 percent) of law review articles get ten or fewer citations. So where are all the citations going? Well, let's look at articles that get more than 100 citations. These are the elite. They make up less than 1 percent of all articles, .898 percent to be precise. They get, is anybody listening out there? 96 percent of all citations to law review articles. That's all. Only 96 percent. Talk about concentration of wealth.

Why, you ask, is it like this? You should read my paper here, into which this new lawrev data will be incorporated, though I think it may justify a little article on its own. Similar dynamics are probably at work. Possible titles: Why this article (and yours) is a waste of time. Or, Stop that law professor before he writes again. This distributions of cites to law review articles and to cases look the same. Your basic stretched exponential with a long tail, or some would say a power law distribution. On a log-log chart, close to a 45 degree line.

So stop that blogging, professors, and get back to writing those law review articles!

Some other thoughts:

If I got rid of self-citations, which is impractical for me to do, the numbers would be even more pathetic.

You can always tell yourself, maybe someday, someone will cite me. Maybe, but don't count on it. After four years or so, your odds of getting cited are less and less. But it never hurts to hope.

Just because your article has been cited a total of, oh, four times, does not mean it hasn't changed lives. It changed your life, didn't it? Maybe got tenure out of it! Who cares if no one ever cites it!

It's just the way things are. Citation distributions are similar in physics. The distribution is in the same family as income distribution. It's a rough old world.

Well, I've got to get back to work on that pathbreaking article . .]

WHAT about Canadian and European journals? . My data does not include those. But I am pretty certain it would not make any difference in the overall distribution.

I suppose you could also look at the bright side. If you manage to get cited 20 or 30 times, you are in fact doing very well. And if you get cited zero times, well, that's the fate of more than 40 percent.

SOMEONE made a good point in the comments to Todd Zwycki's link at VC. Lawyers (and law professors too) use law review articles, especially for background information and to plunder cites, and don't necessarily cite them. So an article could be significant and not cited. Just as some articles are no doubt cited much more often than they are read. This would seem almost impossible to measure, however.

AS LONG AS I HAVE YOUR ATTENTION, I would like to point out that these results do not seem very consistent with Glenn Reynolds's hopeful assertion that Lexis and Westlaw- type legal search engines are flattening the hierarchy of legal scholarship. His point is more about law journals, not individual articles, but I would be willing to bet that the elite articles are very likely to appear in the elite journals. But I have another, I hope more provocative point. The effect Glenn points to, that Lexis and Westlaw searches mix in articles from obscure journals along with those in top journals, is in fact a consequence of the fact that they use search engines that are primitive compared to what we are now used to from Google. It is not, as he suggests in his article, a sign of things to come, but a symptom of technology that has now been superceded. A sign of things one hopes will soon be improved upon. The obscure journal articles are mostly the equivalent of the "junk results", the elimination of which by Google's PageRank algorithm made so many Google billionaires and millionaires, and for the rest of us makes the WWW so much more useful. Legal search engines, as I explain in my article, ought to exploit the structure in the network of legal citations, just as Google exploits the hypertextual structure of the Web! That's why I call it The Web of Law. Then we would get result rankings that correspond (more) to the hierarchy that is inevitably woven into the citation network. It would negate the (not very desirable in my view) hierarchy flattening effect that comes from mixing in so many less relevant results from less prestigious journals (along with, I concede, perhaps some overlooked diamonds in the mud) into search results, but it would save lawyers and scholars a lot of time.

DAVE HOFFMAN at the Conglomerate worries that the Lexis database is too small. My larger point is that these stretched-exponential-with-power law-tail or power law distributions or whatever they are (physicists, mathematicians, and others are still fighting about these, and boy, lawyers have nothing on them in the fighting department, I have learned) are deeply embedded in the enterprize. The lawrev distribution is very like the distribution for Second Circuit cases, which is very like that for the Alabama Supreme Court, which is very like the distribution for papers in physics, and so on. So it is very unlikely anything would change by increasing the number of journals.

Dave also asked some interesting questions I would love to answer, but for which I do not have the data. Someday, maybe. All I have right now is what I call citation frequency distribution. How many law review articles are there that are cited cited 0 times, 1 time, 2 times etc. Now, I also have that data for every U.S. jurisdiction on virtually all U.S. state and federal cases, so I have a lot of data. But there is much, much more data one could have, and yes, I really hope someday it will all be in an analyzable form. The big thing would be to have in some readily analyzable form, the whole citation network. Imagine a giant matrix, 4 million cells on a side, with the cite of every case on the X and on the Y axis. X is case citing, Y is case cited. If case X cites case Y, there would be a 1 in the (x,y) cell, otherwise a 0. Something like that. You also need the date of the cite. If you had that, you could discover an enormous, and I mean enormous amount about how the legal system is structured, evolves and so on.

OK, IT TURNS OUT I am some good news and some bad news, and the good news is also bad news and the bad news is also good news. In a sense. Anyway, it turns out that I made some miscalculations and the numbers are not nearly as bad as I thought. However they are still really bad. So the good news is that they are not as bad as I thought, and the bad news is that I made a miscalculation. Which, by the way, is why I said the numbers were preliminary. And they still are! And I will keep making corrections until I get it right! Or until I give up! Anyway, here are the revised, but still very preliminary numbers.

So, what I have now is that the top .5% of law review articles gets 18% of all citations (yes, I know that is very different from what I said before, but it is still a very skewed distribution); the top 5.2% gets about 50% of all citations; and the top 17% of articles gets 79% of all citations. And about 40% of articles never get cited at all.

I like these numbers better. They are much closer to a classic "scale free" distribution, even though I am not saying they are a scale free distribution. They are also much closer to the distribution in physics articles, which is kind of interesting in itself.

These numbers are still very preliminary. Not only might they be changed, they almost certainly will be changed. For one thing, there is a big chunk of citations unaccounted for, and while I doubt they will end up on the low citation end of the distribution, when they are tracked down, they are bound to change the numbers somewhat. But at any rate, these numbers are much closer to being sound than my first try. This just goes to show you, you should never do any permanent harm to yourself on the basis of a blog post.