Thoughts from
San Diego on Law, Politics, and Culture

 
Republicans Are Evil Racists ....
By Gail Heriot

...or so research reported in the Washington Post suggests. According to the article:

"[A] study ... explored relationships between racial bias and political affiliation by analyzing self-reported beliefs, voting patterns and the results of psychological tests that measure implicit attitudes -- subtle stereotypes people hold about various groups.

"That study found that supporters of President Bush and other conservatives had stronger self-admitted and implicit biases against blacks than liberals did.
...

"For their study, Brian Nosek, Mahzarin Banaji and social psychologist Erik Thompson culled self-acknowledged views about blacks from nearly 130,000 whites, who volunteered online to participate in a widely used test of racial bias that measures the speed of people's associations between black or white faces and positive or negative words. The researchers examined correlations between explicit and implicit attitudes and voting behavior in all 435 congressional districts.

"The analysis found that substantial majorities of Americans, liberals and conservatives, found it more difficult to associate black faces with positive concepts than white faces -- evidence of implicit bias. But districts that registered higher levels of bias systematically produced more votes for Bush."

"Obviously, such research does not speak at all to the question of the prejudice level of the president," said Banaji, "but it does show that George W. Bush is appealing as a leader to those Americans who harbor greater anti-black prejudice."

As far as I have been able to determine, the study itself has not yet been published. (Don't you love it when newspapers jump the gun and report on studies that are not yet published? It makes it so much easier to write the story, because the writer needn't bother with seeking comment from those who might be skeptical of the study's methodology. How can anyone comment negatively on methodology if no one knows what methodology the study employed?)

I am just guessing here, because I don't have the study in hand, but here are some scattered thoughts:

1. The test used was one of these so-called "Implicit Association Tests" that are popular as internet parlor games these days. I cannot be sure, but I strongly suspect that the test reported on is Banaji & Nosek's "Race IAT" found here. Try it or try one of the other IATs on the web site. They're fun. I just took the Race IAT, and it told me that "[t]he data suggest" that I have "a strong automatic preference for Blacks compared to Whites." And yet many people regard me as a conservative. Go figure.

2. The test doesn't actually ask the test taker whether he or she is a Republican or Democrat or whether he is she supported or opposed George W. Bush. For all we know, it was only Democrats (or only Republicans) who took the test. The test does ask where the test taker rates himself or herself on a six-point scale of liberal to conservative. Note that six is an even number that makes it impossible for the test taker to register himself as a true moderate.

One important thing to note, however, is that all the test takers are volunteers, most of whom probably happened upon the test while surfing the net. This is highly unscientific as a method of comparing one population (conservatives) against another (liberals). At best, you have a comparison between conservatives who surf the net with lots of spare time on their hands and liberals who surf the net with lots of spare time on their hands. They may or may not be representative of the conservatives and liberals generally.

3. All I know about this test is that it measures how quickly and accurately you can sort through a series of pleasant and unpleasant words and black and white faces. It is not clear to me why this is thought to be an accurate gauge of racial bias. But without the paper to analyze, I suppose mine is not to reason why; mine is just to allow the Washington Post to write about whatever it wants to in peace.

I asked my friend Hal Pashler, a professor of psychology at UCSD, and he told me that IAD tests are very controversial and referred me to some the skeptical literature. See Brendl, Messner & Markman, How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test, 81 Journal of Personality and Social Psychology 760 (2001); Rothermund & Wentura, Underlying Processes in the Implicit Association Test: Dissociating Salience from Association, 133 Journal of Experimental Psychology-General 139 (2004). I will be reading through the articles soon. Hal also referred me to Hart Blanton, whom he says has amassed quite a lot of evidence that IATs purporting to measure racial bias do not in fact do so. I haven't yet read any of these articles, but you can ...

5. Oddly, the authors test only whites in their study. This biases the study. A very large portion (about half) of the Democratic party is now non-white, and the less-well-educated members of the Democratic party are disproportionately non-white, while the less-well-educated members of the Republican party tend to be white. I've been told that both blacks and Hispanics tend to rank very high on measure of racial and ethnic bias. Hispanics, for example, have been found to rank higher than any other American group in anti-Semitism. If non-whites had been included in the study, it might have shown that self-identified liberals are more racially biased than self-identified conservatives.

6. All of this reminds me of the laughable "Jost study" released back in 2004 and demolished by Northwestern's Jim Lindgren. Jost et al. were of the opinion that conservatives are mean, crazy, and unhappy. Time will tell whether this study will get demolished too. So far, it doesn't look good for Banaji & Nosek.

I look forward to reading the study. I'll report back after I do.

posted by Gail at 1/31/2006 12:09:00 PM

 
Worse Than Stalin? Part 2
By Gail Heriot

I'm amused that my fellow Right Coaster Mike is deterred from purchasing Mao: The Unknown Story by its 832 pages. If he changes his mind, he can borrow the copy I just purchased from Amazon. I figure it will help fill gaps left by the atrocious Teaching Company tape on Chinese history that I listened to last year.
posted by Gail at 1/31/2006 10:02:00 AM

 
Iran already has nuke, Israeil former spymaster says
By Tom Smith

It would explain the Hitler wannabe act.

posted by thomas at 1/31/2006 07:08:00 AM

 
Gin, Vodka and so on
By Tom Smith

I did know that you keep vodka in the freezer, and gin too. I have a bottle of each in my freezer, I am somewhat embarassed to note. However, if you do this, you need to add a few drops of water to make your martini. Drops. It makes a difference. Otherwise, the drink is too thick. But my advice is, just don't do it. Martinis are like the drink stands on the marathon to hell. You have one and think, mmm, that was good, I'll have another! And the next thing you know your head is numb and you can't pronounce "continuum" and other words you are trying to use.

Wine is good. Try wine. I bought some expensive wine over the weekend, thinking it would be better than the cheaper stuff I usually buy. It was. You can read Bainbridge on wine, or just let the market do its magic and assume the more expensive the wine, the better it will be. It usually is.
posted by thomas at 1/30/2006 10:12:00 PM

 
Judge Posner on the NSA program
By Tom Smith

Posner really is my favorite judge, the more so as I get older. He has that valuable thing in a judge, good judgment. His piece in the New Republic is a must read (Hat tip to DZ). Here's a taste:

I have no way of knowing how successful the NSA program has been or will be, though, in general, intelligence successes are underreported, while intelligence failures are fully reported. What seems clear is that fisa does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to "detect and prevent," whereas "fisa was built for long-term coverage against known agents of an enemy power."
posted by thomas at 1/30/2006 09:50:00 PM

 
It's not your fault that you're fat
By Tom Smith

It's a virus. Really. Bad news is they have no cure yet.
posted by thomas at 1/30/2006 03:31:00 PM

 
Some common sense from a law professor on the NSA program
By Tom Smith

Philip Bobbit of the University of Texas Law School gets this exactly right. As I would put it, it is much less important whether Bush technically violated the requirements of what is obviously a grotesquely outmoded law, than it is that NSA be able to carry on the sort of intelligence gathering operations it is gathering. In 1978, no one imagined that by gathering data on millions of persons, none of whom were likely terrorists, you could mechanically ferret out the few who were. The whole paradigm of privacy and probable cause we are used to makes no sense in this context. We need to come up with an approach that both allows us to protect national security and respect some reasonable conception of privacy. A reasonable conception does not include feeling violated if some mindless robot collecting samples from your phone calls and emails raises a red flag if you sound like a terrorist.
posted by thomas at 1/30/2006 10:45:00 AM

 
Be Evil. Whatever.
By Tom Smith

Google protest graphics.

Image censorship. So nice and seamless. This really makes me sick. Let's just edit history. We have the technology.

Question: can two play that game? Maybe Congress should consider some new law, say the Oppressive Regime Anti-Butt Kissing Act of 2006, to the effect that you get to pay some gargantuan fine if you help any country with more than a dozen or so gulags with their censorship program. Or call it, the We'll Help You Not Be Evil Act of 2006. What, you mean you can't be evil for free? At least let's have hearings and let the young billionaires explain why it's good for everybody in the long run to help bring mind control into the twenty first century.

Hey, and if you can mess with your algorithms to make nice with the nice Commies, why not pass along all that great intentionality info to whatever they call their KGB in the PR of Red China. Maybe they could do some insanely cool math and figure out if you search Gershwin, jazz, and whiskey within two weeks of each other, you have an 80 percent chance of being a subversive. Then it's off to the reeducation camp, which thanks to Google, has the latest in internet technology! We find it helps a lot with the reeducation process. That, and the thorazine. Sergey grew up in the USSR, so he knows all about that stuff, you know. Maybe he should have lived a few more decades in a free country before he became a billionaire. Maybe he should take a remedial class on good, evil, and the importance of individual humans and their decisions. (Sergy -- this is America. You are supposed to do the right thing, even if the government doesn't make you. Didn't you get a pamphlet or something?) At this class, maybe he could practice standing in front of toy tanks. Or spend a day in a day in a hell hole eating cockroaches and rats. I don't recall -- do they serve cockroaches and rats at the Googleplex? I know they have their very own chef. Those guys are just so cool, you know. Maybe instead of street hockey they could try guards and prisoners, and if a prisoner talks back, they could beat him senseless.

And another thing. Talk about a case for liberal education. Did these guys never take a class where they read some real books? Or was it just all matrix algebra and such? I mean, this is Werner von Braun with lava lamps and code. Maybe someone should introduce these larvae to the guys at Lawrence Livermore Lab, who helped scare the USSR into collapse by working on x-ray lasers and the like, and let them explain that just because you are an engineer, doesn't mean you have to cut deals with the devil. You don't have to betray everything you said you stood for.

Oh, I know! Let's put the latest in information technology at the service of the most brutal, scariest, and most threatening to freedom dictatorship on the face of the earth! We're geniuses, so it must be a good idea! How could it not be! I mean, maybe there is like some new model of mass human slavery yet to be worked out, and we can help!

Aquinas had a phrase for this, I think -- the corruption of the best is the worst. So maybe it should be: We weren't Evil; But now we are, and really good at it, too. Another tricky thing about evil is, often the evil are the last to know. Or maybe they were just a bunch of souless robot squids all along. Rich, though. Boy, they sure are rich.
posted by thomas at 1/29/2006 09:03:00 PM

 
Coup for Vanderbilt and a good idea
By Tom Smith

This really is impressive. Vanderbilt Law School is starting a PhD program in law and economics and has hired two of the top legal economists away from Harvard to do it. Don't you just love competitive labor markets?

It is a great idea, provided you are willing to commit the resources to do it right, and it certainly seems like Vanderbilt is doing it right. Apart from more obvious reasons for wanting to produce law and economics PhD's are some less obvious ones. A separate PhD program at a law school could stress the importance of knowing the law you are talking about. At times in the past, I have been pretty shocked at what passes for legal knowledge among economists. Also, law and economics has some of its own valuable, scholarly traditions, such as a commitment to empiricism that is not as absolute as you might think in economics, where some practitioners are pure mathematician wannabe's. So, overall, a very encouraging and exciting development at Vanderbilt.
posted by thomas at 1/26/2006 09:23:00 AM

 
All nerves about the Alito confirmation
By Tom Smith

Here's one of the dumber things I've read about the Alito vote coming up. It inspired me, however. Using our remarkable set of contacts, I decided to email "Barely" Bob, spokes-nonperson of Fetuses for Life, a not very well known anti-choice organization.

TS: So, Bob, are you nervous about the upcoming vote on Justice-presumptive Sam Alito?
Bob: I've been nervouser. In this job, you just have to learn to deal with stress. I mean, if it's not some new exercise fad, it's wondering if your life will be ended before it's properly begun. Mind you, our position is that it has begun.
TS: Of course.
Bob: Still, in all, we view it as an important vote. It won't keep some of our younger members from, ah, being disposed of. But maybe it means state laws against partial birth abortions will be upheld. As you know, we take an especially dim view of those because . . .
TS: They kill you?
Bob: Well, yes, obviously. But it's worse because you think you are finally getting your shot, and boom, kablooey, you're dead. Kind of build you up to let you down, if you see what I mean.
TS: Sort of.
Bob: Yes, it's hard to see things from our point of view. That in fact is one of our big missions, you know, walk a mile in our little feet sort of thing.
TS: I see.
Bob: Notification is signficant as well.
TS: It is?
Bob: Sure. The big effect notification has is to change behavior. If girls have to tell their parents they are getting an abortion, they are much less likely to get pregnant in the first place, or so the studies suggest.
TS: That old moral hazard thing.
Bob: Precisely. Of course, try to argue that teens can be rational about sex, and you run into a lot of skepticism.
TS: I am always impressed at how cold-bloodedly rational people can be, at least in the sense of self-interested . . .
Bob: You don't have to tell me.
TS: Any other concerns about Alito?
Bob: You mean executive power or something?
TS: Whatever
Bob: Not really. We are pretty much a one-issue organization . . .
TS: Well, good luck
Bob: Thanks much. We all need it.
posted by thomas at 1/26/2006 08:53:00 AM

 
The revolution that keeps on giving
By Tom Smith

This article in Atlantic Magazine made for alarming reading. (subscription req'd, but you can get the idea.) It makes me glad I am not trying to raise daughters. And my kids are in Catholic schools, which have their problems, but as far as I know, "rainbow parties" are not among them.

For what little it may be worth, here is my armchair sociological analysis of what has happened. First, the feminist revolution managed to discredit traditional ideas of feminine virtues, such as modesty, let alone chastity, as well as traditionally virtuous male behaviors of protectiveness, chivalry, restraint and so on. That created a vacuum it did not have much on offer to fill. Second, into this vacuum in the 'eighties and 'nineties came the "bitch an' ho" culture of the black ghetto, via hip hop music mostly, I guess. That culture, IMHO, is almost uniquely pathological with respect to the raising of children. No positive male role models, glorification of violence, prostitution, drugs and the most vulgar kinds of materialism. I gather the role for girls in it is to be desirable chattel for the gangster with the most money. Welcome to the marketplace of ideas.

You would have to look far in history to find a culture more destructive of kids. Without the slightest bit of exageration, you can say a baby would be better off being born into a hunter-gatherer family in the middle of New Guinea. The music is probably better, too.
posted by thomas at 1/25/2006 04:50:00 PM

 
FISA and statutory construction
By Tom Smith

Here's a weird little statutory construction paradox with FISA.

Another oddity. Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President's Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

I have not read part II of the DOJ memo yet, and I plan to do so with an open mind, but my intuition is that the 1978 Congress, benighted body that they were, probably did intend to put all surveillance, even wartime foreign intelligence surveillance involving US persons, under the regulation of the statute. It may be, that is, that there just is not any ultimately plausible reading of FISA that does not put it into conflict with a reading of Article II that gives the President powers one would certainly hope he has. I tend to think Congress should just repeal FISA and start over.

To bloviate further on this -- the politics of all this is most discouraging. The Democrats, for their own sake and the country's, really should try to develop a position on national security a little more intelligent than Bush lied, and Bush broke the law. Protecting national security against very nasty and clever enemies in an age of high tech WMDs and low tech fanatical wickedness, and preserving civil liberties at the same time, demands deep thought and sincere grappling with the trade offs, not the sort of cant we have been getting from most Democratic leaders and opinion makers. As my Democratic colleague Larry Alexander observed, and as I have also from time to time, nothing would be more damaging to civil liberties than another catastrophic attack on American soil. If you want to see domestic spying on all of us, just wait until a dirty bomb goes off in Chicago, or somebody drops a pound of weaponized anthrax on the floor at LAX. Our enemies want to prove open societies cannot work in the face of terror, and we do not want to test the point. People for whom civil liberty is not just a flag of convenience for their anti-Republican or anti-American animus need to get serious about the threat side of the equation.
Update:

Signifying Nothing has this explanation. The 15 day period gives Congress some time to decide whether to extend the President's power to surveil without a warrant. Otherwise, the normal FISA requirement kicks in. Without knowing more, this does strike me as a plausible guess of what Congress was thinking. If one looked, one might find other parallels and a common underlying conception of the separation of powers in FISA and the War Powers Act.

There seems to be this meme going around the liberal side of the blogosphere that conservatives are somehow doing an about face on presidential power. This is news to me. I served in the Reagan White House, and there was a great deal of interest and enthusiasm back then in presidential powers. Robust presidential powers have been a big theme among conservative constitutional scholars at least since the 1980's. Someone more energetic than I could put together a long bibliography of law review articles substantiating the same. I'm not sure where that confusion comes from.

Another complaint is that conservatives want to give the President a "blank check" to wage war, including conducting domestic surveillance where necessary, in fighting off terrorist enemies. This criticism may not be exactly fair, but it is one worth making. But on the other hand, I think it is perfectly obvious that the Church-McGovern-Fulbright etc. model of how Presidential war powers should work, a kind of collective closing of the barn door after the horse of Vietnam had long fled, is completely inadequate to the necessities of defending against enemies such as al Qaeda. There is a long story to be told here, which others can do better than I. But as I see it, the whole set of liberal ideas we got out of the Vietnam era -- the "Imperial Presidency," the revisionist history of the Cold War a la W A Williams and Walter LaFeber (my advisor at Cornell), neo-colonialism, etc. etc are just all wrong. Just a dead loss. It is about as useful to us now as a snowmobile in Palm Springs; they were probably wrong answers to the old questions, but they are not even addressed to the questions we face now. The threat now is not, if it ever was, that some big bad America, led by its President, is going to crush some nice democratic socialist revolution of land reformers in some godforsaken third world dictatorship. The Islamofascists defy even the considerable imaginative powers of the American left to recharacterize them as the way to the future. A Leninist thug may look like a reformer from Cambridge, but you cannot do a lot with UBL. This makes it painfully obvious, I think, that the legacy legislation of the 1970's is just utterly inadequate and even downright dangerous in an era of religious nutcases busy working on mass terror weapons. Whether wars of national liberation should have scared us as much as they did or not, we have every reason to be scared of 21st century terrorism. Both the War Powers Act (to the extent anyone pays any attention to it) and FISA are relics of the 1970's, and ought to be as embarrassing to us as people hanging from the helicopters fleeing from Saigon. We've been there, and done that, and it did not work out too well last time, and we certainly do not want to repeat that with respect to the Islamist terror movement, or whatever you want to call them. I don't want Bush to have a blank check, but I do want him to have a line of credit that he can draw on to defend us against very real threats, threats which those on the left seem to want to minimize for tranparently political reasons. I realize there is reason to worry that any government will play on our fears, but it is not as if 9/11 was just a nightmare -- it was a nightmare come true. If I recall Arthur Schlesinger's book correctly, FDR exceeded his powers in the Lend-Lease program. I am not too worried about it.
posted by thomas at 1/25/2006 04:49:00 PM

 
ABC Nightline's Smear of Justice Scalia's Constitutional Law Seminar
By Gail Heriot

Monday night, ABC Nightline ran a story that made it look like Justice Antonin Scalia missed Chief Justice Roberts' swearing-in ceremony in order to attend a tennis junket. In fact, Scalia had been teaching a 10-hour continuing legal education seminar on constitutional law. The Federalist Society, which sponsored the seminar, has responded with the following letter from President Eugene Meyer, which I quote in full:

January 25, 2006

Mr. David Westin
President
ABC News
7 West 66th Street
New York, NY 10023

Dear Mr. Westin:

I write to express my deep disappointment and concern about a January 23rd report aired on ABC’s Nightline. The report grossly misled viewers about a recent trip Supreme Court Justice Antonin Scalia took to teach a 10-hour course on the Constitution and separation of powers. Nightline suggested that Justice Scalia’s trip was a “judicial junket,” and even strained to manufacture a link with disgraced lobbyist Jack Abramoff.

ABC chose to focus on the fact that Justice Scalia’s commitment to teach, which he made nearly a year earlier on October 10, 2004, conflicted with the swearing-in of Chief Justice John Roberts. Nightline’s report insinuated that Justice Scalia’s absence at Chief Justice Roberts’ swearing-in was nothing more than Justice Scalia taking the chance to play tennis at a Colorado hotel on the Federalist Society’s tab.

Rather than taking a recreational trip with hours of tennis and going fly-fishing, as ABC would have its viewers believe, Justice Scalia was honoring an agreement made nearly a year in advance with the Federalist Society to teach a serious scholarly program to more than 100 lawyers from 38 states that required considerable work and advance preparation. Prior to the course, Justice Scalia produced a 481-page course book that attendees were expected to review in advance. The course was approved by at least 30 state bars for most of the attending lawyers’ continuing education requirements. Justice Scalia was there to share his knowledge and experience and received only reimbursement for travel and lodging.

It was very appropriate and reasonable for the Justice to honor his longstanding commitment to teach. There was virtually no advance notice that the Chief Justice would be sworn in on September 29, and, were Justice Scalia to have cancelled a couple of days before the scheduled course, most attendees would have lost the money spent on plane tickets getting to and from the course. The Federalist Society would have also faced considerable costs for breaking its contract with the hotel where Justice Scalia taught the course.

Nightline deliberately misrepresented the nature of the event despite the fact that the Federalist Society took pains to establish the facts with Nightline’s senior producer, David Scott, as well as the investigative reporter who worked on the story, Rhonda Schwartz. The Federalist Society set forth the fact that Justice Scalia arrived at the hotel at 11 p.m. the night before the course and departed for home at 6:30 a.m. the morning after the course ended, thus spending no more days at the hotel than necessary to teach the course. It was made abundantly clear that the Justice taught for ten hours, and played less than two hours of some informal “pick-up” tennis.

I am deeply concerned that, reminiscent of the false National Guard story fabricated by CBS’s Dan Rather and Mary Mapes, ABC has simply chosen to score political points by blatantly disregarding the facts and true nature of the circumstances which surround the Federalist Society’s course on September 30, 2005.

Not only does this deliberately misleading journalism irresponsibly call into question the integrity of a Supreme Court and the scholarly mission of the Federalist Society, but it also seeks to advance an extraordinarily troubling argument regarding the range of activities in which judges should engage. ABC seems to be in favor of a world where Supreme Court justices are not allowed to engage in any outside teaching and speaking – before the ABA, the Federalist Society, or any other organization. ABC is content to have the legal community deprived of the benefit of the experiences and expertise of judges, which has for over 200 years been an indispensable feature of the dialogue that leads to the improvement of the law and the administration of justice, as well as the independence of the judiciary.

I am further concerned that what appeared to be good faith efforts on Nightline’s part to provide the Federalist Society with an opportunity to respond to Mr. Ross’s report last night. On two occasions we believed we had an agreement with Nightline producers that Federalist Society executive vice president Leonard Leo would be interviewed by Washington anchor Terry Moran and given an opportunity to respond to the false Nightline report from the previous night. But the producers reneged on both agreements, first insisting that Mr. Ross conduct the interview and then insisting that he come on after the interview. This turned gestures of good faith into bad faith, given that Mr. Ross smeared Justice Scalia and the Federalist Society the previous night in a story that he produced and edited to his liking.

That a major, respected broadcast network would not only air a grossly lopsided story, but willfully ignore very pertinent facts, is a source of tremendous disappointment, and Americans expect and deserve better. We call on ABC to launch an independent investigation into the circumstances surrounding the development and production of this story.

Sincerely,


Eugene B. Meyer
President

I'm not sure the story is quite comparable to Rathergate. In Rathergate, CBS was using forged documents to smear Bush. But it's nonetheless a very sad commentary on the MSM. I do hope this kind of report will not cause judges to seal themselves off from the legal community in a misguided effort to avoid the appearance of impropriety. Up to now, teaching seminars had been one of the few opportunities that judges have to be among fellow lawyers in a serious setting outside the courtroom. I think that benefits both bar and bench. A cloistered bench is an out-of-touch bench.
posted by Gail at 1/25/2006 12:24:00 PM

 
Don't be evil (unless you have to to make a lot of money)
By Tom Smith

One more heroic dream bites the dust. Google decides to accommodate the 'great firewall of China.' I suppose this means you won't be able to google.cn such dangerous terms as liberty, freedom, Tiananmen Square . . . A sad day.

I don't understand people. If I had more money than I could spend in ten lifetimes, I would say, you know, I started this f*&%ing company, and we're not going to help some nightmare tyranny postpone its already long overdue demise. I might be somewhat less rich as a result, but I can already afford my own 747, so who cares? I mean, seriously. If the Nazis had won the war, and you owned a search company, would you acceed to their request not to allow google.tr to search "missing jews"?

Remember this? He probably wasn't smart enough to work for Google. And indeed, we are probably not smart enough to realize that in the long run, cooperating with the oppressors is the best way to bring about liberation in the end. After all, it worked in, well, must have worked somewhere.

Seriously, however, Google should at least let us know what terms you are not allowed to search in the PRC. Maybe freedom; Hayek; free markets; God; torture prisons China; Catholic Church; American constitution? Come on, Serge and Larry! Tell us! Or do the long run interests of freedom not permit that either?
posted by thomas at 1/25/2006 08:55:00 AM

 
Exactly
By Tom Smith

Sometimes you are right to be afraid.

posted by thomas at 1/25/2006 06:40:00 AM

 
What is to be done?
By Tom Smith

How best could conservatives reform the culture of the academy? Interesting thoughts here.

I wish I had some deep insights on this. As a pessimist, my inclination is to say, it cannot be done. The academy is just too pervasively on the left to ever become 'balanced' or intellectually diverse. The only real alternative is to build alternative institutions outside of the academy. But then, I really don't know.

I am not sure what the experience in law schools teaches us. Without a doubt, the Federalist Society has made it more respectable, on balance, to be a conservative or libertarian scholar. But the success of conservative ideas, such as Originalism, has been far more striking on the bench than it has been on law faculties. The US Supreme Court may soon boast a solid majority of justices one might call conservative. And yet no top 20 or perhaps any law school faculty will soon or perhaps ever make a similar claim. But if there is a time when the majority of federal judges, say, are what we would now call conservative, does it really matter all that much that law school faculties continue to think conservativism is out of the mainstream? They will say we are out of the mainstream with their dying breath. The mainstream is kind of a platonic thing, I gather.

The most important influence of the Federalist Society, I would hazard, has been on law students and lawyers who go on to take positions of responsibility in public life. It has had this influence without getting anywhere near achieving balance in the academy. Ideas work in mysterious ways.

One might think a similar logic could work itself out in other areas where the academy is notably left wing. When people say the academy is over-poised to the left, I think they are talking much more about the humanities and social sciences than physics or molecular biology. In the liberal arts, such as history, or English Literature, I am far from certain the academy has any great institutional advantage in producing valuable new insights about past events or letters. Futurology is mostly impossible, but it is possible to imagine a world a few decades in the future where wealth and high productivity support intellectuals and artists of various sorts who will be able to do their thing, and have access to by current standards fantastic resources and audiences, quite apart from having to teach graduate students or attend departmental meetings. If all the great libraries are available online through GooglePrint or something similar, why does an historian need the imprimatur of the Harvard history department anyway? I think it may be more a case of, will the last Marxist please turn off the History department coffee machine, while the good, new stuff comes out of new places, which will be located who knows where. The scientific and technical side of universities have never been healthier, I would guess. But everything else -- one almost wonders if it can be rescued or even if it should be.
posted by thomas at 1/24/2006 02:55:00 PM

 
Yes, Virginia, there really was a Commie infestation
By Tom Smith

From a certain perspective, this is one of the funnier things I have read in a while. Facts are not only stranger than fiction, they are funnier than fiction.
posted by thomas at 1/23/2006 12:30:00 PM

 
Academic non-diversity
By Tom Smith

The numbers on conservatives in the academy speak for themselves.

Quite apart from issues of fairness, which leave me rather unmoved (my bad), I think it is bad for the future of the university for them to drift further and further into a leftish orbit. I don't see American society overall going that way, and at some point the people who are paying for all this will ask what exactly is in it for them, other than ever so thoughtful critiques of everything they believe in.

Somewhat relatedly, the left-ization (sorry) of the university may accelerate the process Drucker thought was inevitable, that is, the replacement of the university with more rational and flexible educational institutions. Too bad. I liked universities. They were fun.
posted by thomas at 1/23/2006 12:09:00 PM

 
Boy issues
By Tom Smith

This is a real problem. Sometime in the last ten or fifteen years, we seemed to have tipped into a very boy-unfriendly society. At my kids' Catholic academy, it is routine for there to be only one or two boys out of dozen honors students at a grade level. Recess is so highly regulated that the boy play we grew up with is long gone. No tag. Nothing at all rough. No dodgeball. On and on. Public schools are even worse, I hear.

We are (planning on) sending our boys to an all boys Catholic high school. Strangely, the feminist revolution or whatever it is, has made the case for all male education stronger than ever before.
posted by thomas at 1/23/2006 12:02:00 PM

 
Is Juan Cole a nut?
By Tom Smith

It may be too early to salt him and eat him, but let's just say that the view may not be dismissed entirely. Just as Cole apparently does not dismiss entirely the view that 9/11 was some sort of Jewish conspiracy -- or maybe he is saying something else. However, that is not a claim that needs to be treated gingerly.

Just to be clear, I am strongly of the view that "the Jews", whoever they are, are not responsible for 9/11, nor for global warming, tooth decay, male infertility or the inability of the Padres to get back to the series.
posted by thomas at 1/22/2006 12:27:00 PM

 
DOJ brief on NSA program
By Tom Smith

The DOJ memo on legal authorities for the NSA program is out. If you are at all interested in the legal issues raised by the program, you ought to read it. A fortiori, if you are going to appear on the media as an 'expert' on this issue. So far, I have read just Part I, on the President's Article II authority, and his authority under AUMF, and have just started Part II, on FISA.

Part I is very good. It is very well written, clearly and persuasively argued, and marshals a quite impressive mountain of authorities in support of its position. I want to blog on it in more detail later, so this is just some off the cuff reactions.

My prediction is that critics of Bush and the NSA program will try to avoid the arguments and authorities in this memo as best they can. Part I seems to me to be in slam-dunk territory, which means it could garner only 4 votes against it in the current court. Just some tidbits. There is a long historical tradition of Presidents authorizing warrantless surveillance for foreign intelligence purposes, and ample Supreme Court precedent supporting same. These powers are ample even in peacetime. They are even stronger in wartime. This is wartime. You have the AUMF, you even have NATO article 5. Nice touch. Does sound like wartime. They would seem to be stronger still, when the enemy has agents inside the US, has attacked on US soil, has announced its intention to attack again on US soil, and uses electronic communications as part of its plan to wage war against the US, and effecting those plans. Indeed, to invade the US. Does the president have the power to repel invasions using force in its usual and traditional modes? Does he, hell. (My words.)

I especially liked the use of the Youngstown case. The memo argues, convincingly I would say, that the AUMF puts the President in Zone Whatever, the zone where the President is at the zenith of his powers under Article II. I had not thought of that, but it makes sense. The Famous Professors letter against the NSA program argued that FISA put the President in the zone where the President was most circumscribed. But the DOJ argument makes more sense. If Congress tells the President, go get the guys who did this, and stop them from doing it again, and use as much force as necessary, that sounds like a broad authorization to use Article II powers as much as necessary to get the job done. It seems silly and technical to argue that this broad and urgent authorization in a time of national emergency, would not trump any Youngstown power-narrowing effect, produced by FISA. You see, the Famous Professor's argument is that FISA has a kind of penumbra under Youngstown that constrains Presidential powers to their narrowest scope. DOJ says that AUMF dispells any penumbra from FISA, and indeed puts the President in the zone of maximum and authority, where Congress has empowered him to go do what has to be done. That does indeed seem to be what AUMF does. I speak metaphorically here, and probably unclearly, but, to the fair minded, I think it will be clear that much damage has been done to the FISA- plus- Youngstown- equals- a- very- constrained- President argument. I am not that sold on Jackson's concurrence in Youngstown anyway. I dislike 'zones', which are usually just an attempt to lend false precision to sketchy analysis. But still, I would not be surprized if critics start harping on Youngstown now, it being such a two edged sword.

I will just add that Part I of the DOJ letter is fun to read. Without referring to opposing arguments floating around, it does a good job demolishing them. That is always fun. It helps, of course, to have so have so much authority on your side. These arguments against presidential power in national security seemed so much more persuasive when the President was bombing third world fanatics and spying on us, instead of our getting bombed by them, and our spying on them.

Part II on FISA is not going to be as much fun. FISA appears indeed to be a complex and deeply misguided law, crafted at the recent nadir of American self-loathing (1978) by that nice man, friend of my family, but walking national security disaster, Frank Church. The argument is going to be, FISA does not stop the President from doing what is necessary to protect the country, but if it does, it is unconstitutional.

But don't worry about me. Just read the DOJ letter! It is a fine piece of work.
posted by thomas at 1/22/2006 09:21:00 AM

 
UCLA Profs kerfuffle
By Tom Smith

I must say I think Bainbridge and Volokh have staked out about the right position on this little fight. The dust up involves a UCLA alumni group that has offered to pay $100 for tapes of lectures by UCLA professors that demonstrate a left-wing bias. It sounds like I may be able to use this as a Contracts class hypo for offers of unilateral contracts. If 1000 students show up, each with such a tape, does the alumni group have to pay out $100K? Lots of possibilities there.

The bounties are obnoxious; no need to deny that. On the other hand, it is far from clear that classrooms in public institutions should not be open to some sort of public monitoring. Why not have a webcam in every UC and Cal State classroom? I can think of lots of reasons why not, but whether they outweigh the benefits, such as more awake professors who try harder not to make fools of themselves or indulge their various peculiarities too much, I am not so sure.

However shocked we might be by some UC prof saying Jesus was a communist, Reagan a war criminal, Mao a prophet of freedom and Bob Dylan the greatest poet in the history of English, more shocking still would be what we would see if we monitored our public grade school classrooms.
posted by thomas at 1/22/2006 08:38:00 AM

 
Epstein on Florida school vouchers case
By Tom Smith

It's depressing that it probably took Richard all of 90 seconds to write this post, lucid and detailed as it is.

The Florida Supreme Court -- quite a band of geniuses, no?
posted by thomas at 1/22/2006 08:02:00 AM

 
Juan Non-Volokh temporarily retires
By Tom Smith

But he'll be back, under his true colors, I infer. I think his decision to blog anonymously was prudent. He says he thinks bias against conservatives in the academy is overstated by some. He might not still have had that view if he had been signing his real name all along. It always best to complement others for their tolerance from a position of safety. That lion, says the photographer in the Land Rover, would never attack a human.

I agree that much of the bias is unconscious, but so what. Most ignorance is unconscious, too, and we typically don't give people a lot of credit for being ignorant. Apart from that, there is the loneliness and tedium of being the only conservative in your faculty or even town. Bias or not, there are strong reasons for smart, young conservatives to seek their fortunes elsewhere. It is hopeful to say this will change over time, but I doubt it. The universities are too thoroughly of one color to transform themselves, and I think it is neither possible nor desirable to change them any other way. What I do expect is the continued growth of alternative institutions, among which blogs and other alternative media will figure largely, in which 'other voices' may be heard. When the printing press came on the scene, the Church did not change so much, but Christianity sure did.
posted by thomas at 1/22/2006 08:02:00 AM

 
The Akaka Bill Before the U.S. Commission on Civil Rights
By Gail Heriot

I testified at a U.S. Commission on Civil Rights briefing on the Akaka bill on Friday. Press coverage of the event is here and here. For some reason, Americans from the mainland have a hard time grasping the notion that something that directly affects Hawaii might actually be important to them and the country. Fortunately, the bill is starting to get the attention it deserves. I commend the Commission on Civil Rights for its willingness to look into the issue.
posted by Gail at 1/22/2006 04:56:00 AM

 
Goodbye and thanks for all the words
By Tom Smith

Rosa Brooks has started a bloggy discussion with this post. As we tend to, I feel I can add something to this.

First, it is quite true that most law review articles are read not at all, or only a few times. 40 some percent are never cited. Ever. Twenty percent of law review articles get about eighty percent of all the cites. If you write an article and it manages to get cited ten or twenty times, you are doing very well indeed. We don't have any way of knowing how many times an uncited article might have been read, but it figures it is not a lot.

Conversely, a few players tend to dominate the genre. They are the Stephen Kings and John Grishams of the law review realm. Everybody reads what they have to say Is it because what they have to say is all that wonderful, illuminating, insightful, brilliant, etc. etc.? Actually, no. Weirdly enough, by looking at the distribution of citation frequency, you can get a good idea of what dynamics produced the shape of the curve. To take an analogy, we all, especially law professors, are familiar with, especially during grading time, consider the bell curve. It is amazing in a way how students every year dutifully line themselves up in a bell curve. It's normal! Why is this? It turns out that performance on exams is a function of a number of different factors, such as how smart a student is, how hard he studies, how good he felt that day, and so on, which are independent, at least partially, of each other. The interaction of independent variables tends to produce a normal distribution.

Very different mechanisms tend to produce the long-tailed, power law like distributions that characterize citation frequency. There are quite a few possible mechanisms, but one of them is the "rich get richer" effect, which also works for "the famous get more famous." So, one thing that may well be going on with citations, is that everybody reads and cites Cass Sunstein's latest not only because they expect it to be good, but because he already has such a big reputation. Reputations compound upon themselves. Fame breeds more fame. Do the famous deserve to be more famous? That is hard to say. It is like the guy who makes some money at the beginning of a stock market rally and so becomes very rich. He gets rich while the guy who makes money at the end of the rally does not. Fair does not have a lot to do with it.

What this says to me is that, if you already have a big reputation in legal scholarship land, you should probably keep writing, because you will probably get cited even if you write about your dog Skippy. Perhaps not really, but close. With all due respect, I think this phenomenon helps explain such mysteries as the ongoing influence of Larry Tribe, who as far as I can tell, has not made much sense in a while. But then, I am not a constitutional lawyer; perhaps I am being unfair. On the other hand, if you write stuff, and it tends not to get cited, you are fighting against a strong current. It is more like trying to get a hit single than it is like building a house. It is not clear to me that such a person should continue to write law review articles that won't be cited and probably not much read. It does not mean the articles are not good, though they may well not be. A change of genre might indeed be a good idea. I am not at all sure why law professors should be paid to write stuff that will quickly disappear into the pile of dead papers. There must be a better way for them to contribute to the sum of legal knowledge. On the other hand, it happens everywhere, even in the hard sciences. Maybe they also serve who publish and are ignored, through some process that is not well understood. Maybe it makes them a more appreciative audience of the famous ones. Who knows.

Which leads to blogging. Why on earth not? If blogging can somehow undermine the tyranny of student edited law reviews, then viva la revolucion. If ever institutions were prestigious for being prestigious, it would have to include the leading student edited law reviews. They are, of course, proof that human institutions can be highly irrational, and prosper. Writing an article for publication in a student edited law review is like preparing a feast out of the Thanksgiving edition of Gourmet magazine, and then at the last moment inviting your teenager's pals to come on in and make any changes they would like. How about throwing some chocolate chips in the souffle? Wouldn't that butterflied lamb be even better with ketschup?

Internet publication is faster, and student editors cannot insist you incorporate bad ideas or add pointless footnotes. It can be a scholarly conversation that is more like conversation. Many points, moreover, deserve to be made, but do not merit treatment in a full dress article, at least not by the point maker.

Blawging is evolving. The RC is a frisky blog, with some serious stuff and some not so serious. Other blawgs are much more serious and probably more worth reading too, if not as fun as we. Law blogs will probably change into something else, at least some of them, that are more professinal and useful, and I hope, render the student edited law review biz increasingly irrelevant, like the Nightly News. I also hope that online, peer reviewed journals prosper; whether they will or not, I don't know.

Be all that as it may, the blogosphere is perfect for law professors. It is like a giant faculty lunch table, except that you cannot be talked over, you can make your points as carefully or not, as you like, you cannot be stopped from gathering some sort of audience, you do not have to endure the scorn of late 1940's liberalism, 1990's post modernism, or whatever other historical curiosity you happen to find yourself seated next to, and you only have to listen to what seems interesting. It's like being a law professor, only more fun.
posted by thomas at 1/20/2006 02:49:00 PM

 
The bad news on Iran
By Tom Smith

Krauthammer is usually right about these things.

You have to think about these things from a game theory perspective, which just means strategically and assuming the parties are rational (in a limited sense). Doing that, the correct move on our part might be to make a credible threat, quite apart from any UN or EU3 action, that we will take some massively destructive action to remove Iran's nuclear threat, if they do not convince us they are not going to develop weapons. We would have to make such a threat credible, which would be possible to do, but not easy. If the threat works, we stop Iranian weapons without war. But this requires a credible commitment to make war if necessary -- not easy to do with our system.

Alternatively, we could enter into some sort of mutual nuclear defense pact with Israel, to the effect that any attack on Israel by Iran or by an Iranian proxy, would be viewed as an attack on the US and would trigger massive retaliation. This would also have to be credible. It might involve some sort of public sharing with Israel of nuclear weapons and delivery technology. If we gave Israel 100 high yield nukes and the missiles to deliver them, Iran would have to think twice about "wiping them off the map." It is one thing for Israel to have nukes. It is another thing for Israel to have a whole lot of them from us, with reliable delivery, and for everybody to know it. We could also enter into an agreement with Israel that we would deliver to them such weaponry if and when Iran acheived some milestone in its nuclear weapons development (which might include failing to convince us they had not stopped the development). In short, if the US can make credible commitments to respond to certain actions or inactions by Iran in appropriate ways, we might be able to avoid a descent into regional and quite possibly world war. I doubt this or any future president will have either the political will or the political support to do this. Later we will be able to say, we had a world war, but at least we did not have an imperial presidency.

Without a doubt, these are very dangerous times.
posted by thomas at 1/18/2006 01:05:00 PM

 
An amazing discovery
By Tom Smith

I may be speaking to soon, but I seem to have discovered that rarity, a balanced, thoughtful, insightful liberal (or mostly liberal) who comments on judicial affairs outside of the usual agenda. Benjamin Wittes at the Washington Post. Maybe not new to you, but new to me. I have not read everything he has written, but only a few things, and so far, I am impressed. He also has a really thought provoking piece in this month's Atlantic (subscription only so no point in linking) about how we are now really in the Stevens Court, not either the Rehnquist or Roberts court. Disturbingly convincing, and yet another reason to thank Jesus or other diety of your choice for Alito.
posted by thomas at 1/18/2006 10:47:00 AM

 
Whatever you do, don't let them into the classrooms
By Tom Smith

If we could see what went on in typical urban, public school classrooms, it would be a lot harder for the teachers' unions to resist reform.

posted by thomas at 1/16/2006 01:12:00 PM

 
Those darn world wars
By Tom Smith

Don't worry. We know that anti-semitic nut cases rarely start world wars. Do the Jews really have that much cause for concern? When some demagogic leader says he wants to "wipe them out," that is obviously just a figure of speech. The idea that the US should preemptively strike a sovereign nation such as Iran is imperial hubris at its worse. This is not like Hitler and Germany.

More seriously, I have been fascinated by 20th century European history since I was in college. Here is a very good new book about The Third Reich. There are significant parallels between Nazi Germany and Islamist Iran. Both were or are dislocated societies in the grips of a diseased ideology. Both groped toward national identity and pride through military might. Both scapegoat the Jews for partly mysterious but wholly pathological reasons. Germany did not and Iran probably would not, hesitate to murder on a genocidal scale if they thought it served their national purposes.

I hope our national leaders are capable of thinking outside the box on this one. Letting the UN dither us into an existential crisis should not be an option.
posted by thomas at 1/16/2006 10:22:00 AM

 
Those darn facts
By Tom Smith

NYT looks stupid, again. A former student of mine who was a Navy ordinance disposal team leader told me these 155 mm shells are as common as dirt in Iraq, there being literally millions of the them around. So if you don't know what they look like, you don't know thing one about objects that explode in the region. They are the munition of choice in IED's. We supplied them to Iraq in fantastic numbers during the Iran-Iraq war.

Irrelevantly, my father commanded a 155 howitzer battery as a 1st lt. in the Battle of Okinawa. At some point, I plan to blog about his experiences there.
posted by thomas at 1/16/2006 09:29:00 AM

 
Weird old England
By Tom Smith

Where an offense against taste is far worse than one against morality.

posted by thomas at 1/15/2006 04:53:00 PM

 
The fierceness of Ann Coulter
By Tom Smith

Dr. Helen on same.
posted by thomas at 1/15/2006 02:32:00 PM

 
Why can't we be friends
By Tom Smith

Now that it is clear Judge Alito will be confirmed, we of the permanent government here in Washington would like to get on his good side. There are guest lists to be thought of, former clerks who may be sources, cases we may be party to, and so on. Come, let us reason together. Let us see on which side the bread is buttered. Democracy is a beautiful thing.
posted by thomas at 1/15/2006 02:20:00 PM

 
Experts' letter on NSA program
By Tom Smith

Here is a letter, styled the 'experts' letter' on the NSA program, signed by a number of prominent legal academics and former public servants. The average signatory is more left than right, with a number of the usual suspects, Larry Tribe, David Cole, Kathleen Sullivan, etc., but also Richard Epstein, well known libertarian and not a Democrat (but not really a Republican either) as far as I know, Bill Sessions, and few others I have not heard of. An impressive list.

It would be interesting to know who actually wrote the letter. When I was in practice, we needed a letter from a famous constitutional scholar that an egregious piece of special interest legislation our firm was lobbying for was in fact constitutional. So we drafted the letter, paid ten large to a scholar who is also one of the signatories of the NSA letter, and voila, had ourselves a weighty opinion. To be fair, the signatory's contract provided that he/she had to be paid whatever his/her opinion turned out to be, so you can imagine our relief when he/she turned out to agree with our client's position. He/she did have some suggestions for improving the punctuation in our letter, and those were much appreciated. And in fact, the law was subsequently challenged, and its constitutionality was upheld, if memory serves. It was a very bad, but constitutional piece of legislation, as so often they are.

The NSA letter, as legal work, it is of merchantable quality; only one typo (the double period at the bottom of page 8) that I caught. However, I would not say it as good as the average, and certainly not as the sum, of the legal talent represented by the list of signatories. As I say, it would be interesting to know where this group of scholars gets their legal work done. Ten will get you ten thousand it ain't by Ronald Dworkin, who is probably in Zermat or some such place this time of year.

But to the substance! I am not going to repeat the letter's arguments here, so if you earnestly wish to follow my points, for whatever mysterious reasons you may have, I urge you to read the letter, which is well worth it, and at less than ten pages, is far more endurable than listening to ten minutes of Judiciary committee questioning. And, if you read the letter, you will also be far ahead of many learned commentators on this controversy.

A general point first. This letter is not really a memo advising the Attorney General or some other official in the Executive on the legality of the NSA program. What it actually is, is a short brief, written from the perspective of some party who wants or needs to argue that the NSA program is illegal. So, if you end up in a federal court because of the perfectly innocent radiological powder experiments you have been doing in your basement, and which were unwise enough to discuss with your pals pursuing their religious studies in Pakistan, this letter would be a good place to start. No attempt is made in the letter to make the best arguments on both sides, and then suggest what is the stronger position. One may indeed wonder what the purpose of the letter is. The letter is addressed to Members of Congress, so I suppose it is meant to influence the politics of the upcoming hearings on the NSA program. And I think it is really more a political than a legal document. But that's fair enough.

The gist of the letter is that the NSA program, which appears to involve domestic wiretapping for foreign intelligence purposes, violates FISA, and so is illegal. The letter argues that the position taken by DOJ, that both Article II and the AUMF authorize the NSA program, is (nearly) indefensible.

My first reaction is that the argument that Congress intended to prohibit all domestic wiretapping for foreign intelligence purposes, even in time of war, except as authorized by and consistent with the procedures in FISA, is, as this letter makes it, fairly persuasive, as far as it goes. One would have to study the FISA statute more, of course, but the letter makes some sense on this score.

One of the things this does, of course, is highlight what a profoundly stupid law FISA is, even with the Patriot Act amendments. So, for example, apparently FISA allows domestic wiretapping for wartime foreign intelligence purposes, if and only if the Executive gets special permission under FISA within 15 days of the declaration of said war. Could FISA really be that stupid? Just to take a wild and crazy law school hypo, what if, just suppose, the CIA discovers that some US citizens are conspiring with some evil Nazis to blow up the Statue of Liberty, and they want to tap the phones of the domestic conspirators, not to prosecute anyone, but just to stop the plot. But, the war has been going on for 30 days. And no one in the Executive thought to ask permission to do warrantless wiretapping during the first 15 days of the war. In their defense, these were some kinda busy 15 days. Suppose further, there is some technical reason why getting a warrant would be impractical, such as the CIA doesn't know the names of the domestic saboteurs, or their phone numbers -- they're going to rely on some new technology to listen into the phone calls of every cell phone in O'Mally's Bar (these are Irish terrorists), where the evil doers are thought to hang out. If I understand FISA correctly, that's just too bad, so sad. Good bye, Lady Liberty. Here's a relevant passage from the letter:

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated
as the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled “Authorization during time of war,” FISA dictates that “[n]otwithstanding any other law, the President, through the Attorney General, may authorize
electronic surveillance without a court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for 4
Congress to consider and enact further authorization.3 Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter
remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted “implied” authority.

On its face, you have to admit this 15 day provision does indeed suggest that in FISA, Congress did not intend the President to have any implied authority to conduct spying operations under his war powers, if it involved doing so domestically. It is also an astonishingly dumb provision, even for Congress.

Maybe this is not really what FISA provides. But assuming it is, this leads to the question, which frankly puzzles me, of whether Congress in 1978 can limit the conferral of war powers to the President by Congress in 2001. It strikes me as not the same problem as trying to reconcile two statutes, one specific and one broad, where, of course, the more specific statute trumps, an argument invoked with at least superficial plausibility in the letter. Do you construe a declaration of war, or an "authorization to use military force," as you would the Poultry Health and Safety Act of 1981? It strikes me that this might be an instance in which the broader authorization trumps the narrower statute. "War" and "use of force" are broad terms, but they are also legally important terms. If they are trumped by every piece of legislation that is more specific, there is not going to be much left of them.

Be that as it may, it certainly does raise the question of whether this dimension of FISA is constitutional. Under the logic of the letter, the President could not engage in warrantless wiretapping of US persons in direct contact with foreign combantant enemies during wartime. If a US person were standing on the Capitol Mall, cell phone in hand, talking down a jetliner in so it could plough into the Capitol Building, nobody, the FBI, CIA, Air Force, nobody, could listen into that conversation (without a warrant) in an effort to stop the attack, unless, of course, the President thought to ask for such authority during the first 15 days of the war, and perhaps not even then -- perhaps the attack would have to occur within the first 15 days of the war! In all seriousness I ask, can that possibly be right?

Here I should identify myself as something of a Posnerian pragmatist in these matters and say, I think we really don't want to let an act of profound Congressional stupidity in 1978 (a good year for stupidity) stop the President from defending the country in ways it seems obvious, from what you might call the common sense view of people who don't want to die, he should be able to use.

This set of concerns leads quickly to the letter's reliance on Youngstown Steel, and in particular Justice Jackson's opinion, which it is now customary not to identify as a mere concurrence. (If I may digress momentarily, I must say I find it a little annoying that the Jackson concurrence in Youngstown is, according to the letter, supposed to rule the day, even though that case was about nationalizing steel mills, not FISA, and was only a concurrence, while the assumption that the President does have Article II powers to wiretap for foreign intelligence purposes under FISA (where "foreign intelligence purposes" includes such things as trying to stop Islamic nutcases from blowing us up) in Sealed Case 02-001 is dismissed as mere dicta in footnote 11 of the letter. But IT'S NOT DICTA. Sorry. I can see it may be necessary to explain in detail why it is not dicta, but that is the subject for a future post.)

Apparently, we are supposed to conclude, on the basis of Youngstown, that Congress has the power to occupy the whole field of what would otherwise be the President's power to act domestically in wartime to defend the country. To repeat myself, you just really have to ask, can this be true? If and when Congress passes a law that makes defense of the country by the President in wartime in some important respect impossible or highly impractical, is that just the end of the argument? If so, the title for the book about it could be Our Foolish Constitution.

I am coming to the view that it may be necessary to face the hard fact that, as shocking as it may seem, a concurrence by a not particularly distinguished Justice in a fifty year old case about steel mills may not be able to guide us through this strange new war against the let's bring back the Caliphate crowd. Working on just my amateurish understanding of these profundities, I am hoping that it is reasonable to suppose that a concurring opinion in a not exactly on point Supreme Court case, is not the law of the land, at least not to the degree that we have to die for it. If lots of people are going to die, I think we should hold out for a majority opinion, maybe even 6-3. We may have to wait for Professor Dworkin to opine on that one, however. Supposing, in any event, that we are not stuck with Jackson in Youngstown, one would think one could come up with better guidance than, the President can act to defend the country in wartime, even domestically, unless Congress has said he cannot, in the relevant respect. The sublime idiocy of the 15 day requirement is as good an illustration as one could ask for about why Congress is not so good at regulating how wars should be fought, not to imply that they are particularly skilled at other modes of regulation, just that they are notably bad in this respect, as I believe the Framers foresaw they would be.

Much more could be said here, but as I am not, as in a former life, being paid to draft letters to be signed by famous constitutional scholars, I will wrap this up. What bothers me most about the letter is that it is a transparently political demonstration intended to undermine the President's entirely laudable efforts to prevent evil and crazy people from murdering us in large numbers. Even though he is a Republican, I believe Bush should be given some credit for doing this. How to defend us from threats that would deeply frighten even our most sanguine scholars if they became learned about them, presents some very difficult questions. Questions to which, "let's get really serious about FISA" -- a law that was a disaster from the moment it was passed, and which contributed materially to the deaths of thousands of innocent people on 9/11, and which may not be done working its mischief yet -- is a singularly unpromising approach. What constitutional scholars should be thinking about is not, how can we use the revelations about the NSA program to undermine the current administration, the national security consequences of which are not our department, but rather, how can we defend ourselves against the threat of modern, high-tech, loosely networked, ideologically fanatical, and utterly ruthless terrorism, but still preserve our liberties? When some defendant is paying you to come up with just the arguments that some evidence against him cannot be admitted, that is one thing. But when you are writing an open letter to Congress, you can consider whatever you want, presumably, and question, well, what exactly is the President supposed to do? still rather hangs in the air -- unless this is just a political exercise, which I rather suspect it is. One thing the "expert's letter" does succeed in doing is persuading one that the answer "just use the FISA process" is no answer at all. This is a law that should be repealed or fundamentally revised in short order, assuming we are all around long enough to do that.

(Just one more thing -- the expert's argument that there were no "special needs" under FISA strikes me as implausible and passed over rather quickly, as in, 'ignore the man behind the curtain,' so perhaps more on that later.)
posted by thomas at 1/15/2006 09:48:00 AM

 
Just think of it as euthanasia
By Tom Smith

Old, sick, and blind quadruple murderer has an appointment with destiny, to wit, a lethal injection. Why Planned Parenthood is not speaking up in favor of putting the poor soul (figuratively speaking) out of his misery, I don't know. If only we could find some relative with a financial interest in his death, we could make all of our ethical qualms go away.
posted by thomas at 1/14/2006 05:18:00 PM

 
Catholicism and the Court
By Tom Smith

Worth reading in the Daily Standard. Even if it's message is, there's something happening here, and I don't know what it is. (If that phrase resonates deeply for you, welcome to old age.) I suppose someone could try to write a law review article on Catholic themes in the opinions of the Catholic justices. But, one, it would be hard to do, and two, it would be difficult to get it published, except perhaps in Notre Dame or Ave Maria L. Rev.

Here's the not very compelling conclusion:

And yet, in another way, everyone who seems so agitated--from the New York Times editorial page to Americans United for Separation of Church and State--is right to worry about the nomination of a fifth Catholic to the Supreme Court. Neither John Roberts nor Samuel Alito admitted in his Senate hearings a willingness to overturn Roe v. Wade. That may have been merely good confirmation strategy, but it is also possible they will prove, as Anthony Kennedy did, unwilling in the end to pull the trigger. The fact that Alito's mother told a reporter her son opposes abortion is no more dispositive than the fact that John Roberts's wife once held a position in a pro-life organization.
But both Roberts and Alito are products of a Catholic intellectual life that has flowered in the years since the Court imposed legalized abortion on the nation. Compelled to moral seriousness by the urgency of the pro-life cause and granted a surprising public prominence by the collapse of the old Protestant mainline, post-ethnic Catholic thinkers have formed an exciting and powerful rhetoric in which to talk about public affairs in a modern democracy. You can see it among an increasing number of professors and journalists. You can see it, perhaps most of all, among lawyers and judges. You can even see it among nominees to the Supreme Court.

That is hardly the same thing as success for the Catholic Church. But it is success, of a sort, for Catholicism.

I'm going to think about this a bit before I opine, but I am sure to have something to say about this eventually.

A READER sends me this interesting data on religious affiliation of US Sup Ct Justices.
posted by thomas at 1/14/2006 10:50:00 AM

 
Dem self-pity fest
By Tom Smith

It's just so unutterably sad. Tragic, really. Bush putting his stamp on the courts. How can it be? How has it come to this? You lose the White House, the Senate, and the next thing you know . . . It is as if some deeply mysterious force is at work. What could it be?
posted by thomas at 1/14/2006 10:35:00 AM

 
Is the NY Times really this bad?
By Tom Smith

This story strains even my cynicism about the MSM and the NYT.

So, during the Clinton Administration, evidence existed (all of the information used in this article was available at the time) that:

-an invasive, extensive domestic eavesdropping program was aimed at every U.S. citizen;

-intelligence agencies were using allies to circumvent constitutional restrictions;

-and the administration was selling at least some secret intelligence for political donations.

These revelations were met by the New York Times and others in the mainstream media by the sound of one hand clapping. Now, reports that the Bush Administration approved electronic eavesdropping, strictly limited to international communications, of a relative handful of suspected terrorists have created a media frenzy in the Times and elsewhere.

posted by thomas at 1/12/2006 08:31:00 PM

 
Freedom of speech: fun while it lasted
By Tom Smith

This deeply disturbing article on the ongoing campaign to regulate and curtail political speech is a must read.

One little thing to add: technologists and engineers should think hard about creating modes of speech that the state just cannot, for practical purposes, regulate. I don't know what this would be. Encryption of some sort? But the constitutional prohibition against infringing the freedom of speech may not be enough. You would think the transparently self-serving nature of politicians telling us what political speech we may and may not engage in would be enough to discredit it. But it may not be.

I just hope some future historian will not point to Bush's failure to veto McCain-Feingold, and the Supreme Court's failure to overturn that misconceived statute, and the beginning of the end. Without freedom of speech, there is no freedom of thought. Without freedom of thought, oh, sorry, I was about to express a non-approved thought. I don't know what I was thinking.
posted by thomas at 1/12/2006 04:29:00 PM

 
Schumer makes me sick
By Tom Smith

Here is the profound respect for the truth and the Judiciary that the Senator from NY has. Here are liberal, minority and female judges who have worked with Judge Alito, but he doesn't want to hear that, so he just leaves. Senator Kennedy I understand. I imagine it is like what I feel like when I need a drink, only 1000 times worse. But what is Schumer's excuse? This is the first time in history circuit court colleagues have testified in this way, but no matter. It is all just a show anyway. Schumer and his co-conspirators really are a disgrace to their offices. I have no problem with liberals pushing Alito on what his views are on important issues, the role of the courts, the President's powers, and so on. These are important questions. But to spend most of a day trying to smear him by his remote association with the Princeton group, some of whose members were nutcases -- is there any Princeton group that does not have a few nutcases? -- and then just leave when there is actually some probative testimony to be heard, is really just disgraceful. And anyone who thinks the CAP business was more than just a pathetically incompetent attempt to smear one of the least smear-worthy members of the Judiciary is just being naive, or attempting not to offend the embarassing leadership of that part of the left concerned with judicial appointments. If the Federalist Society were acting like a bunch of asses, I would not hesitate to say so. Why can't professors on the left do the same? And I suppose anyone who has ever been a member of the Federalist Society is automatically unqualified for the bench? God knows I have heard some wacky things said at FedSoc meetings, a defense of the unconstitutionality of laws against poligamy comes to mind. There is a reason why guilt by association is considered a tactic beyond the pale, even in the rough game of politics.

In case you haven't noticed, the Democratic Party has reduced itself to a pathetic and disfunctional state. The best they can do is tell Bush to respect the privacy of people in the terrorist cell calling plan, and hurl around accusations of racist and homophobe the way only the most cretinous Birchers would throw around "communist." I cannot help but think most Democrats would be embarassed and ashamed by Kennedy's and Schumer's antics, if they bothered to inform themselves, and who can blame them for not doing so. Most people know intuitively that it is very wrong to impugn a person's integrity and imply he harbors all sorts of morally disreputable motives on the basis of "evidence" the most feeble minded can see amounts to nothing. It's offensive. I mean, for heaven's sake, we are supposed to be so finely tuned that we can see why being "heteronormative" is offensive, but not see that calling a man financially dishonest, a bigot and a misogynist, on the off chance that some marginal political gain might be gotten out of it, is not just dandy? Is just politics? It is a risky business to underestimate the decency of the American people, and I really think the Democratic leadership has taken the wrong end of this bet. They would have been much better off taking the high road.
posted by thomas at 1/12/2006 03:24:00 PM

 
Teddy Boy
By Tom Smith

He's enough to make you rethink your whole attitude toward marine mammals. But in response to Professor Bainbridge's question, has Senator Kennedy ever been more loathsome than in these hearings on Judge Alito , I believe the answer is, we don't know, and we don't want to know.

It is a depressing spectacle to see a straight arrow, public spirited good guy like Judge Alito attacked by somebody who, but for an extraordinary failure of the legal system, would have done hard time for his negligent homicide of his young female companion. (For you non-lawyers in the audience, negligent homicide is what it is called when you take your young girl on the side to the beach, get drunk, drive off a bridge, and as a result, she drowns. In all civilized places, this is considered a very serious crime.) It is not quite news, but the Senator's performance manages to demean the Senate, the Judiciary, the rule of law, the Catholic Church, the Irish race, the English language, Princeton University, the worthy goal of racial and sexual equality, and the estimable hobby of the consumption of fine spirits, all in one go. It just goes to show that merely being rich, powerful, selfish, dishonest, drunk and stupid is enough to lower you to the depths of a depravity you would have thought would require more exotic vices to get you to. As Emmylou Harris I think said of the blues, but applies to evil as well, "you keep on fallin' cause there ain't no bottom." I know this already and find it a depressing fact, so I just don't watch the Senate Judiciary Committee do its thing anymore. I had more than enough with Clarence Thomas.

Like a lot of people I'm sure, I feel for Mrs. Alito. But really, a lot of us are crying, a little and inside at least, along with her. We should acknowledge the courage of Judge Alito and his family for being willing to go through this disgusting spectacle, presumably because they believe in such things as the law, and the honor of the legal profession, and the importance of good men not being kept out of public service by the low lifes already posing at the same business. All that is necessary for evil to triumph in the world, as the saying goes. It can't be easy to have your integrity attacked by such self-serving creatures, to be called a liar by people who have a disregard for truth you would find shocking in any decently raised ten year old. I suppose it is hoping for too much to wonder whether the various supporters and staffers behind Kennedy, Leahy and the rest, might reflect on what they are doing for a moment, and realize how much they are degrading themselves and the common project of government. I know it is too much to hope for.

But I certainly don't think that every liberal Senator or law professor who would vote against Alito deserves to be tarred with the stuff that gurgles up so liberally in the swamp Senator Kennedy lives in. It is one thing to vote against confirming a Judge because you disagree with his philosophy, but it is another thing to dredge up every lie and calumny your gofers can get their grubby hands on, in an attempt to stop a nominee. Politics has to have rules, or it is merely war. And even warriors feel the need to dignify their profession with codes of honor. At some point, maybe honest liberals will decide enough is enough, and do something to reign in the character assassination industry they spawned when they decided to undermine the Bork nomination. Judicial politics may not be bean bag, but it should not be a gutter fight either. The whole business of the rule of law depends in no small part on customs and traditions of civility and respect. There is more than control of the dockyard, labor union, or garbage business at stake here.

In apparent response to yesterday's hearings, Judge Alito's odds on the prediction markets went up slightly to around 95 percent. Nothing was revealed we did not already know.

I BOW down to Soxblog. By being more dispassionate, he does a better job than I on the Alito hearings. Some striking photos too. Is he correct that Mrs. Alito's tears will be what Mr and Mrs Average American take away from this sorry episode? I don't know.
posted by thomas at 1/12/2006 08:20:00 AM

 
Weird SCOTUS math
By Tom Smith

There are actually only slightly more than 4 ideal justices the comprise the Court. The math proves it. I'm not quite sure what this means. One implication is that the output of the court is not that political. Or maybe I don't get it.

BTW I would love to hear from anyone who knows of, or better yet has, some sort of index of how the politics of the Court changes over time. Not how particular justices change, but the Court as a body. So with JFK and LBJ appointments the Court presumably became more liberal, with Reagan more conservative, and so on. Is there some sort of political scientist approved way of quantifying these changes over time?
posted by thomas at 1/11/2006 04:50:00 PM

 
Memo to Universe: please stop being so complicated
By Tom Smith

A new gamma ray burst study suggests the cosmological constant might not be a constant at all. So Einstein may have been right when he thought he was wrong.
posted by thomas at 1/11/2006 01:11:00 PM

 
Who's Out of the Mainstream?
By Gail Heriot

Approximately 500 law professors have signed a letter opposing Judge Samuel Alito's nomination to the Supreme Court. No surprise there. In fact, it's surprising that among the fever swamps of legal academia, only 500 opponents could be unearthed. They obviously didn't dig deeply.

But among the signatories is Professor Curtis Doebbler of An-Najah National University in Nablus, Palestine. Doebbler has a somewhat famous client. His name is Saddam Hussein. Of course, I'm happy that somebody is willing to represent Saddam Hussein, but I'm not sure I feel comfortable taking his lawyer's opinion on who should sit on the Supreme Court.
posted by Gail at 1/10/2006 11:35:00 AM

 
Alito at 90 on Intrade prediction market
By Tom Smith

Anyone else notice that the Alito hearings are pretty much a non-event on the news? I think that may be because you don't want to attract attention to an event you are about to be humiliated in. Steve Bainbridge has more patience than I, which granted is not saying much. I listened to Senator Schumer yesterday, and that was enough. These guys can't even lie with dignity. This is where prediction markets come in. You can just watch the numbers, and not concern yourself too much with the sausage making process.

posted by thomas at 1/10/2006 10:44:00 AM

 
Descending intelligence?
By Tom Smith

Just a guess.

posted by thomas at 1/10/2006 10:33:00 AM

 
Update from the Chopped Liver Blog (aka Right Coast)
By Tom Smith

This survey of law prof blogs leaves out the Right Coast. I checked out the Right Coast at The Truth Laid Bare, where we come out No. 746 in terms of links. For some reason, TLB does not report our traffic, but if it did, as near as I can tell, we would come out number 11 on the list of law prof blogs which are surveyed. But that is not counting the other law prof sites whose traffic is also not monitored by TLB. So who knows. And more to the point, who cares. TLB monitors our links, but not our traffic. It is all very mysterious. OK, I do care. But I am sophisticated enough to pretend not to.
posted by thomas at 1/10/2006 09:12:00 AM

 
Weird and interesting
By Tom Smith

I finally got the issue of New Scientist by snail mail that has the story about a possible 'hyperdrive' based on a strange sort of physics. It is quite a bit more interesting than I thought it would be. In fact, it is downright intriguing.

So how is this for a human interest story. Burkhard Heim was a German physicist, born in 1925, who as a boy was fascinated with explosives (as was John Nash BTW). In 1944, he was working on explosives development for the bad guys, and accidentally blew off both of his arms below the elbows, as well as destroyed his hearing and most of his sight. Because of this, he was unable to pursue a scientific career in the academy, or industry, in spite of various benefactors' efforts to help him. Fortunately, it seems his family was sufficiently wealthy that he was able to pursue his scientific studies independently.

This he did, apparently going off entirely on his own tack. He seems to have pursued unified field theory very much along Einsteinian lines (not that I could tell you what that means, really) developing a highly idiosyncratic and individual mathematical approach to do it. He seems to have taken a purely mathematical and geometrical approach to figuring out the masses of various subatomic entities (and this is the really astonishing thing), which actually predicts highly accurately the masses of various particles which cannot be derived via the Standard Model. I understand this only at a lay person level, but it does seem to be a Holy Shit sort of thing.

If this is really true, it means a blind and deaf German with no hands, no PhD, and no job, figured out an approach to fundamental physics completely different from the one we are now spending billions of dollars on confirming and extending. And one that it is claimed at least has produced highly accurate predictions of physical quantities no one else has been able to produce. Not that anyone is saying there has been some sort of conspiracy to suppress this science. Apparently the mathematics Heim invented to do his work is extremely non-standard and dense. It sounds like it would require years of work just to figure out his approach, and it is hardly surprizing that physicists haven't dropped everything to do that, especially given that it is the work of a non-academic scientist.

As the article above explains (sort of), a consequence of Heimian physics is that we live in a six dimensional world, with the extra 2 dimensions not being curled up, as in string theory, but actually being accessible at very high magnetic energy levels. Don't ask me how. I have just exhausted my understanding of this stuff. Some Heim-ians think that at these energy levels it would somehow be possible to enter a hyperspace at which travel at greater than the speed of light in our regular dimensional manifold is possible.

My point is simply this. Lots of physicists are spending a lot of time and money on string theory, which as I understand it, is not producing anything that can be tested anytime soon, at least not until that giant new CERN accelerator is on line, if even then. At the same time, we are spending hundreds of millions, if not billions, on stupid highway projects that do nothing except line the pockets of people who deserve to be in jail, rather than driving BMWs and eating sushi. So, why not take a few hundred million away from highways to nowhere and build another Z machine (that's the thing they're using at Sandia to try to create fusion inside a magnetic field, also very cool, if incomprehensible, research) and see if this strange German was actually on to something? It may well lead nowhere. But unlike a lot of these bridges, it would not lead nowhere on purpose. Or if government doesn't want to do it because it is not stupid and corrupt enough, maybe Jeff Bezos could come up with a few hundred million he's not using otherwise, and perhaps revolutionize our understanding of the cosmos. Or just waste a few hundred million. But internet billionaires do that routinely anyway.

WIKIPEDIA has a long article on Heim, and the talk section indicates controversy over whether he is legit or not. I guess the comparison between Heim theory and string theory is naive. I should probably stick to what I know. It's just that much of what I know is pretty boring. I would just hate to see potentially new science wither because it is non-standard and unfunded. Maybe it is a job for the Air Force and DOD funded entities, which are less enthralled by reputation, which understandably is the engine of the academy. But you have to wonder if Einstein were around today, whether he could ever get published. Very lucky he managed to get published when he did. Not that Heim is Einstein; I don't know and am unqualified to judge.
posted by thomas at 1/10/2006 08:25:00 AM